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Lalta Prasad Jaiswal v. Prescribed Authority And Others
Structured Summary of the Opinion (Sudhir Narain, J.)
Factual and Procedural Background
This writ petition challenges an order (recorded in the opinion as dated 21.1.1994 in the opening paragraph; later reference in the opinion records the Prescribed Authority's order as dated 21.9.1994) by respondent No.1 rejecting the petitioner's objection to an application for delivery of possession brought by the landlord, respondent No.2, under Section 23 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act).
Respondent No.2 is the landlord of the municipal premises No. 989, Muthiganj, Allahabad. Respondent No.3 was the admitted tenant of the premises. On 4.8.1989 respondent No.2 filed a release application under Section 21(1)(a) of the Act alleging that respondent No.3 had been the tenant since 1976 and used the premises for a transport business run as "Shiva Ji Transport Company." The landlord alleged that respondent No.3 had illegally accommodated the petitioner (Sri Lalta Prasad / Lalta Prasad Jaiswal), who later filed Civil Suit No. 571 of 1989 in the Court of Munsif West, Allahabad seeking a permanent injunction restraining respondents 2 and 3 from evicting him, on the basis that respondent No.3 had vacated and the landlord had let the front portion to the petitioner (allegedly in 1975).
The petitioner applied to be impleaded in P.A. Case No. 105 of 1989 (the Section 21 proceeding), but the Prescribed Authority rejected the impleadment application by order dated 27.6.1991. After a compromise between respondent No.2 and respondent No.3, the Prescribed Authority allowed respondent No.2's release application by order dated 2 July 1991. The petitioner appealed (Rent Appeal No. 102 of 1991) and the appeal was dismissed on 21.5.1992. The petitioner then filed Writ Petition No. 20923 of 1992, which was dismissed on 28.9.1992 with the observation that the release order passed against respondent No.3 would not be binding on the petitioner.
Pursuant to the release order, respondent No.2 filed an application for delivery of possession under Section 23 of the Act. The petitioner objected, claiming to be a tenant and arguing that the order against respondent No.3 did not bind him. The Prescribed Authority recorded a finding that the petitioner was not a tenant and rejected his objection (the opinion records this rejection by order dated 21.9.1994). The petitioner challenged that rejection by this writ petition.
Legal Issues Presented
- Whether the Prescribed Authority's finding that the petitioner was not a tenant of the disputed premises was erroneous in law.
- Whether a suit filed by the petitioner in the civil court (Suit No. 571 of 1989) operates to prevent or stay eviction proceedings under the Act until the suit is finally decided.
- Whether Section 23 of the Act permits execution of an eviction order passed under Section 21 against a person who was not a party to the Section 21 proceedings but is found in actual occupation (i.e., whether the Prescribed Authority can evict persons other than the tenant against whom the Section 21 order was passed).
Arguments of the Parties
Petitioner's Arguments
- The Prescribed Authority's finding that the petitioner is not a tenant of the disputed premises is erroneous in law.
- The petitioner's suit (No. 571 of 1989) in the civil court, raising the question of whether he is a tenant, should prevent eviction until that suit is finally decided.
- The Prescribed Authority cannot execute an order passed under Section 21 of the Act against a person (the petitioner) who was not a party to the Section 21 proceedings; therefore the petitioner cannot be evicted on the basis of an order passed in proceedings to which he was not a party.
Respondent / Prescribed Authority's Position (as recorded)
- The petitioner failed to discharge the burden of proving tenancy: he produced no rent receipts and his only documentary item, a transport company registration certificate of 1983, did not establish tenancy since 1975 (or 1976 as alleged for respondent No.3).
- The Prescribed Authority found the petitioner's affidavit assertions denied by the landlord and, in absence of supporting documentary evidence, concluded the petitioner was not a tenant.
- The mere institution of a civil suit by the petitioner does not operate as a stay of execution of a Section 21 order; a person with an independent right must raise that right before the Prescribed Authority by filing an objection, which the Prescribed Authority can adjudicate.
- Section 23 of the Act empowers the Prescribed Authority to evict not only the tenant against whom a Section 21 order was made but also any other person found in actual occupation (including persons who may have come into occupation after the tenant vacated). Thus the Prescribed Authority can enforce a Section 21 order against a person occupying the premises though not a party to the Section 21 proceeding.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pt. Kishan Lal v. Ganpat Ram Khosla | Tenant's obligation on determination of lease: the tenant must put the lessor into possession; notification of intention to cease occupation does not absolve that obligation (reference to Section 108(q) Transfer of Property Act). | Used to support the principle that the tenant remains liable until possession is restored to the landlord and cannot avoid obligation by simply intimating cessation of occupation. |
| Padmawati v. Pyare Lal Vacher | Until tenant delivers possession to landlord, liability (e.g., to pay rent) continues; reinforces Section 108(q) principle. | Applied to show that a tenant's liabilities continue until possession is delivered, supporting the view that possession passing to others without lawful transfer does not create independent rights. |
| Hukum Singh v. Prescribed Authority, Muzaffarnagar (Division Bench) | Where a third person claims to be a co-tenant but fails to prove co-tenancy, he can be evicted under Section 23 although not made a party to Section 21 proceedings; Section 23 enforcement is not confined only to the tenant against whom Section 21 order was made. | Relied on to support eviction of persons occupying premises who cannot prove tenancy or co-tenancy — analogous to the petitioner failing to prove co-tenancy/tenancy. |
| Ubaidur Rahman v. District Judge, Saharanpur (1986 1 ARC 364) | Section 23 empowers Prescribed Authority to use necessary force to evict the tenant against whom Section 21 order has been passed and also any person found in occupation; a person claiming co-tenancy but failing to establish it may be evicted though not a party to Section 21 proceedings. | Applied to confirm that the Prescribed Authority may evict occupants other than the named tenant when those occupants cannot establish independent entitlement. |
| Durga Prasad v. Prescribed Authority / Ist Addl. Civil Judge, Varanasi | Expresses a similar view to Ubaidur Rahman regarding the scope of Section 23 to evict persons in occupation who cannot establish entitlement. | Cited to show consistent judicial view permitting eviction of non-parties in occupation when they fail to prove rights. |
| Ravi Sahkari Avas Samiti Allahabad v. Prescribed Authority Allahabad | Person claiming title (e.g., purchaser) is not entitled to be impleaded in Section 21 proceedings; however, such a person claiming independent possession/title would not be bound by a Section 21 order against the tenant. | Distinguished: the petitioner in the present case was not claiming title (purchase) but claimed tenancy; thus the Ravi Sahkari principle about independent title was not applicable to the petitioner’s situation. |
| Deepali Bhattacharya v. Ramji | Addresses occupants claiming title as co-sharers; confirms legislative intent of Section 23 is to evict the tenant, persons claiming through the tenant, or trespassers. | Distinguished: in that case occupants claimed co-sharer title; in the present case the petitioner did not claim independent title, so Deepali Bhattacharya did not assist the petitioner. |
| Hari Sharan Mishra v. Prescribed Authority, Munsif Dehradun | Rent control legislation does not recognize the occupation of a trespasser; a trespasser has no locus to challenge execution of a release order under Section 23. | Applied to support the conclusion that a person failing to prove tenancy (and thereby in unlawful possession) cannot resist delivery of possession under Section 23. |
Court's Reasoning and Analysis
The court proceeded by addressing the petitioner's three main contentions and examined the record and applicable statutory and precedential law.
- On the factual question of tenancy, the Prescribed Authority's finding that the petitioner was not a tenant was upheld. The court noted that the petitioner furnished no rent receipts or documentary proof of tenancy. The only documentary evidence produced by the petitioner was a transport company registration certificate dated 1983, which the Prescribed Authority (and the court) found insufficient to establish tenancy dating from 1975 or earlier. The burden of proof to establish tenancy rested on the petitioner, and in the absence of documentary evidence and in face of the landlord's denial, the finding that the petitioner was not a tenant did not suffer from illegality.
- Regarding whether the civil suit (Suit No. 571 of 1989) prevented eviction proceedings under the Act, the court held that instituting a civil suit does not operate as a stay on enforcement of a Section 21 order. If a person claims an independent right, that person must raise the claim before the Prescribed Authority by way of objection, and the Prescribed Authority is competent to consider and decide that objection. Thus pendency of the civil suit did not preclude the Prescribed Authority from adjudicating the petitioner's claim in the Section 23 enforcement proceeding.
- On the legal scope of Section 23, the court analyzed the statutory language and authoritative case law. Section 23 empowers the Prescribed Authority to evict not only the tenant against whom a Section 21 order is made but also "any other person found in actual occupation" and to use necessary force for that purpose. The court relied on Section 108(q) of the Transfer of Property Act and cited precedents (Pt. Kishan Lal; Padmawati) to explain the tenant's duty to put the landlord into possession on determination of the lease, and that possession transferred to a third person without lawful basis does not create an independent right. The court further relied on decision(s) (Hukum Singh; Ubaidur Rahman; Durga Prasad) holding that a third person who claims co-tenancy but fails to prove it can be evicted under Section 23 even if not a party to the Section 21 proceedings.
- The court considered and distinguished authorities relied upon by the petitioner (Ravi Sahkari Avas Samiti; Deepali Bhattacharya) which dealt with occupants claiming independent title or co-sharer status. Those decisions were inapplicable because they involved claims of title or co-ownership; the petitioner in the present case was not asserting independent title but claiming tenancy and failed to prove it.
- Finally, the court observed that in absence of proof of tenancy the petitioner’s possession would be unlawful under the Act (no order of allotment/release under Section 16) and that Article 226 did not entitle the petitioner to equitable relief to remain in possession when he failed to establish tenancy rights. The court invoked Hari Sharan Mishra to state that a trespasser has no locus to resist execution under Section 23.
Holding and Implications
Holding: The writ petition is dismissed with costs.
Implications:
- The Prescribed Authority's finding that the petitioner was not a tenant is affirmed and the Prescribed Authority was entitled to reject the petitioner's objection to the Section 23 execution application.
- The Prescribed Authority may enforce a release order under Section 21 against the tenant and also against any person found in actual occupation who cannot establish an independent right to remain; pendency of a civil suit does not automatically stay such enforcement proceedings before the Prescribed Authority.
- The direct effect on the parties is that the petitioner cannot resist delivery of possession to the landlord under Section 23, and the landlord's right to obtain possession pursuant to the earlier release order remains enforceable.
- The opinion does not purport to create a novel legal precedent; it applies established statutory interpretation and existing case law to the facts of this case.
Petition dismissed. (As recorded in the opinion: "Petition Dismissed.")
Sudhir Narain, J.:— This writ petition is directed against the order dated 21.1.1994, passed by respondent No. 1, whereby the objection of the petitioner against an application for delivery of possession filed by the landlord—respondent No. 2 under Section 23 of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) has been rejected.
2. Respondent No. 2 is landlord of building bearing Municipal No. 989, Muthiganj, Allahabad. Respondent No. 3 was admittedly a tenant of the said premises. Respondent No. 2 filed an application for release of the building in question under Section 21(1)(a) of the Act on 4.8.1989, on the allegation that the premises in question was let out to respondent No. 3 in the year 1976 for his transport business which was being run in the name and style of Shiva Ji Transport Company. He used to book goods as well as ply his trucks. At the time of letting out the premises in question respondent No. 2 was in the employment with Hanuman Prasad and Brothers which used to deal with the business of sale of Indian made foreign liquors. The firm closed its business on account of heavy losses. The service of the employees including that of landlord-respondent No. 2 were retrenched. He became jobless and now wants to establish himself in business. It was further averred that the tenant-respondent No. 3 illegally accommodated Sri Lalta Prasad (petitioner) who was participating in his trade. The petitioner filed suit No. 571 of 1989 Lalta Prasad Jaiswal v. Jagannath Sahai Verma in the Court of Munsif West, Allahabad for permanent injunction restraining respondent Nos. 2 and 3 from evicting him from the disputed premises on the allegation that respondent No. 3 had vacated the accommodation which was under his tenancy. It was alleged that respondent No. 2 let out front portion of the building in question to the petitioner and the back portion of it was retained by respondent No. 2. He cannot be evicted illegally and forcibly. The trial court is alleged to have passed an order restraining the defendants from evicting the petitioner except in accordance with law.
3. The petitioner also filed an application for his impleadment as a party in P.A Case No. 105 of 1989, filed by respondent No. 2, under Section 21(1)(a) of the Act against respondent No. 3 on the allegation that he was a tenant of the premises in question. The Prescribed Authority rejected his application by its order dated 27.6.1991 After rejection of the application, the tenant-respondent No. 3 entered into a compromise with landlord-respondent No. 2. The Prescribed Authority on 2nd July 1991 allowed the application filed by respondent No. 2 under Section 21 of the Act and released the disputed premises in his favour by its order dated 2nd July 1991. The petitioner preferred Rent appeal No. 102 of 1991 before the District Judge, against the order dated 27.6.1991 rejecting his application for impleadment as a party in the case and also against the order dated 2nd July, 1991, whereby the Prescribed Authority had allowed the release application of respondent No. 2. The Appellate Authority dismissed the appeal on 21.5.1992 The petitioner challenged these orders in writ petition No. 20923 of 1992. This writ petition was dismissed by this court on 28.9.1992 with the observation that the order of release passed in the case against respondent No. 2 shall not binding upon the petitioner.
4. Respondent No. 2 filed an application for delivery of possession under Section 23 of the Act in pursuance of the release order passed by the Prescribed Authority on 2nd July, 1991. The petitioner filed objection and it was stated by him that he was a tenant of the premises in question and the order which has been passed against respondent No. 3 is not binding upon him and he cannot be evicted in pursuance of that order. The Prescribed Authority recorded a finding that the petitioner is not a tenant of the premises in question and rejected the objection of the petitioner by its order dated 21.9.1994
5. Leaned counsel for the petitioner firstly urged that the finding recorded by the Prescribed Authority that the petitioner is not a tenant of the premises in question is erroneous in law. Secondly, the petitioner has filed suit No. 571 of 1989 in the Civil Court and the question involved is whether the petitioner is a tenant and till the matter is decided finally in the suit, he is not liable to be evicted and lastly, it is urged that the petitioner was not party in the proceedings under Section 21 of the Act which was initiated against respondent No. 3 alone. He cannot be evicted on the basis of the order passed in that proceeding.
6. The petitioner had filed objection stating that respondent No. 3 was earlier a tenant and running his business in the disputed premises. He closed his business and handed over its possession to landlord-respondent No. 2, who later on let out front portion to the petitioner in the year 1975 and retained its back portion with him. The petitioner, admittedly, did not file any rent receipt. It was averred that no rent receipt was issued by him to respondent No. 3. Respondent No. 3 denied that the accommodation in question was ever let out to the petitioner. He filed an affidavit stating that in fact, respondent No. 3 had sublet the accommodation to the petitioner. The petitioner filed a copy of the registration certificate of the Transport Company of the year 1983. This document was considered by the Prescribed Authority and it was found that the mere fact of registration of the Transport Company in the year 1983 does not establish that the petitioner was occupying this premises as a tenant. There was no other document to prove that the petitioner was a tenant since the year 1975. The Prescribed Authority recorded a finding that the petitioner was not a tenant of any portion of the disputed accommodation. The petitioner was claiming that he was a tenant of the disputed premises and the burden of proof was upon him. There was admittedly, no documentary evidence to prove that he was a tenant. His version in the affidavit was denied by the landlord. The finding recorded by the Prescribed Authority that the petitioner is not a tenant of the disputed premises does not suffer from any illegality.
7. The second submission of learned counsel for the petitioner is that till the suit filed by him in the Civil Court is not decided, in respect of his rights, the petitioner cannot be evicted, has no substance. The petitioner filed suit No. 571 of 1989 for permanent injunction restraining respondents 2 and 3 from evicting him forcibly and illegally on the allegation that he is a tenant. The mere fact that he has filed the suit does not operate as stay of the proceedings for enforcement of the order passed under Section 21 of the Act against the tenant. If any person has independent right, he can establish the same by filing an objection in that proceeding also. The Prescribed Authority can consider the objection and record its own finding while disposing of the objection filed by a person who claims his own independent right to remain in occupation of the premises in dispute.
8. The last submission of learned counsel for the petitioner is that the Prescribed Authority cannot execute an order passed under Section 21 of the Act against a person who was not a party in the proceedings under Section 21 of the Act. Section 23 of the Act contemplates enforcement of eviction order passed under Section 21 of the Act. It reads as under:
“23. Enforcement of eviction order—(1) The Prescribed Authority may use or cause to be used such force as may be necessary for evicting any tenant against whom an order is made under Section 21 or an appeal under Section 22, as the case may be, or against any other person found in actual occupation, and for putting the landlord into possession.
(2) Every order of the Prescribed Authority in proceedings under this section shall be final.
9. The Prescribed Authority under Section 23 of the Act may evict any tenant against whom an order has been passed under Section 21 of the Act and also against any other person found in actual occupation. It is not confined only against the tenant. The tenant may have left the possession or put any other person in possession which was under his tenancy or on its possession some person unauthorisedly occupies it. These persons can be evicted by the Prescribed Authority under Section 23 of the Act, where it is found that the tenant was in its occupation and later on, on its vacation it has been occupied by a person either claiming through him or otherwise. The tenant is liable to restore the possession to the landlord from whom he had taken the possession at the time of its letting and if he fails to deliver possession and permits it to be occupied by some other person either by his act or omission, the landlord is entitled to take possession from him and the Prescribed Authority will not feel helpless in a situation where the possession has been passed on to some one after it has been vacated by the tenant and he can enforce the order against such person when an order has been passed against a tenant under Section 21 of the Act.
10. Section 108(q) of the Transfer of Property Act provides that on the determination of the lease, the lessee is bound to put the lessor into possession of the property. In Pt. Kishan Lal v. Ganpat Ram Khosla,1 it was held that the tenant does not absolve himself from the obligation of his tenancy by intimating that as from a particular date he will cease to be in occupation under the landlord and that someone else whom the landlord is not willing to accept as tenant. It is one of the obligations of contract of tenancy that the tenant will on determination of a tenancy, put the landlord in possession of the property demised. Unless possession is given to the landlord he continues to hold the premises during the period as tenant.
11. In Padmawati v. Pyare Lal Vacher,2 where the tenant alleged to have vacated the accommodation and was allotted to some one it was held that till the tenant delivered the possession to the landlord, his liability to pay the rent continues as he is bound to put the landlord into possession under Section 108(q) of the Transfer of Property Act.
12. In case the landlord has put a tenant into possession, it is the duty of the tenant to deliver possession to the landlord when he vacates the possession but in case he either delivers possession to someone else unauthorisedly or someone takes possession unauthorisedly, such person cannot claim any undependent right. He comes into possession only when the tenant has vacated the accommodation. A third person who has obtained the possession when the tenant has vacated cannot claim an independent right to remain in possession except in accordance with law. His possession shall be deemed to be on behalf of the person who was already occupying as tenant. If a person has occupied the premises on the basis that it was not in occupation of a tenant, as alleged by the landlord, he can establish his independent right but once it is established that a tenant was occupying and subsequently on his vacation comes to its possession, his possession cannot be treated in his own independent right unless he establishes that he obtained the possession of the premises in question in accordance with law.
13. A Division Bench of this Court in Hukum Singh v. Prescribed Authority Muzaffamagar,3 wherein a claim was made by a third person that he was a co-tenant of the accommodation, he cannot be evicted under Section 23 of the Act when he was not made a party in the proceedings under Section 21 of the Act, this Court held that as he failed to prove that he was a co-tenant, he can be evicted by the Prescribed Authority under Section 23 of the Act. The order under Section 23 of the Act can be enforced not only for evicting a tenant against whom an order is made under Section 21 but also against any other person in actual occupation and for putting the landlord into possession.
14. In Ubaidur Rahman v. District Judge, Saharanpur . 1986 1 ARC 364., Hon'ble R.M Sahai, J. (as he then was) held that Section 23 of the Act empowers the Prescribed Authority to use force, if necessary to evict not only a tenant against whom an order of release under Section 21 or an appeal under Section 22 has been passed but also a person found in occupation to enable the landlord to obtain possession. The person who filed objection under Section 23 of the Act claiming himself to be a co-tenant but as he failed to establish his claim, it was held that he was liable to be evicted though he was not a party in the proceedings under Section 21 of the Act. Similar view was expressed in Durga Prasad v. Prescribed Authority/Ist Addl. Civil Judge, Varanasi.
15. Learned counsel for the petitioner has placed reliance upon the decision Ravi Sahkari Avas Samiti Allahabad v. Prescribed Authority Allahabad, wherein the question was whether a person claiming title in the property in dispute on the basis that he had purchased it from its true owner, is entitled to be impleaded as a party in an application filed under Section 21 of the Act by a person claiming himself as a landlord. It was held that he is not entitled to be impleaded as a party and as to who is owner of the property is a matter of adjudication by a regular Court. It was, however, observed that if an order is passed under Section 21 of the Act such person would not be bound by the order of the Prescribed Authority as he claims possession independently of the tenant. In this case the person was claiming title to the property and not tenancy rights.
16. Another case Deepali Bhattacharya v. Ramji is also not applicable to the facts of the case as in that case the persons in occupation were claiming title as co-sharers in the premises in question. The Court, however, made it clear that the legislative intent of Section 23 is to evict the tenant against whom the order has been passed for eviction or any person claiming through the tenant or a person who may be found to be a tresspasser in the disputed accommodation is liable to be evicted. The petitioner is not claiming any independent title to the property in question.
17. The petitioner is otherwise also not entitled to any equitable relief in this petition under Article 226 of the Constitution of India. He was claiming as tenant in the property in question. It has been found that he failed to establish his tenancy rights in the disputed premises. A person either claiming through a tenant or is found otherwise in unlawful possession, cannot resist a lawful order passed under Section 21 of the Act against a tenant. No person is entitled to occupy any building governed by U.P Act No. 13 of 1972 unless there is an order of allotment or release passed in his favour under Section 16 of the Act and in absence of any such order his possession will be unlawful under Section 13 of the Act. A person who is in unlawful possession cannot claim any relief to remain in possession of the disputed accommodation under Article 226 of the Constitution of India. In Hari Sharan Mishra v. Prescribed Authority, Munsif Dehradun, it has been held that the Rent Control Act does not recognise occupation of trespasser of the building and he has no locus standi to challenge the proceedings for execution of the release order under Section 23 of the Act. As the petitioner failed to prove that he was tenant of the premises in question, he is not entitled to resist the delivery of possession to the landlord under Section 23 of the Act.
18. In view of the above there is no merit in this writ petition and it is accordingly dismissed with costs.
19. Petition Dismissed.
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