Smt. Dhanwati Devi v. Rama Shanker Prasad And Another

A.N Verma, J.:— The question which falls for determination in this case is whether the petitioner as the assignee of the landlord of the premises has a right to apply for eviction of the tenant in pursuance of an order of eviction obtained by the transferor-landlord prior to the transfer of the premises. The Court below has answered this question in the negative.

2. The facts necessary for determination of the aforesaid point lie within a narrow compass. One Radha Kishan was the landlord of the building in question of which Rama Shanker, respondent No. 1, herein, as a tenant. Radha Kishan filed an application under Section 21(1)(a) of the U.P Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) against Rama Shankar his brother Naumi Prasad and mother Smt. Narbadeshwari Prasad. This application was dismissed by the Prescribed Authority on 25.3.1977 but on appeal it was allowed by an order dated 2.9.1978 in so far as the residential portion of the building under tenancy was concerned. The tenants filed a writ petition in this Court which has since been dismissed. During the pendency of the writ petition the land-lord Radha Kishan transferred the building under tenancy to the present petitioner Smt. Dhanwati Devi through a sale deed dated 9.7.1980 After execution of the sale deed Smt. Dhanwati Davi the petitioner filed an application under Section 23 of the Act for eviction of Rama Shankar from the residential portion in question. The application was opposed by the said respondent on the ground that the petitioner had no right to apply for enforcement of the order of eviction passed in favour of her predecessor. The order of eviction was passed on the representation that the accommodation in question was needed for the personal occupation of Radha Kishan. Under such circumstances the petitioner would have no right to apply for the eviction of the said respondent. The Prescribed Authority has by the impugned order upheld the objection of the tenant and dismissed the petitioners application. He has held on a careful analysis of the relevant provisions of the statute and judicial precedents that an assignee has under such circumstances no right to apply for eviction of the tenant under Section 23.

3. Sri V.P Misra learned counsel for the petitioner assailing the correctness of the view taken by the Prescribed Authority submitted that on a true and proper interpretation of the applicable provisions of the Statute and the scheme??? thereunder, it must be held that even an assignee, has a right to apply for an order of eviction under Section 23. Shri Murli Dhar learned counsel for the respondent urged that the view taken by the Court is correct and sound and is fully supported by the scheme of the enactment.

4. Having heard learned counsel for the parties, I find no merits in the above contentions of the petitioner. In order to appreciate the controversy it will be necessary to set out a few relevant provisions of the enactment. Section 21(1)(a), in so far as it is relevant, reads thus:

“21. Proceedings for release of building under occupation of tenant.—(1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof it is satisfied that any of the following grounds exist, namely—

(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust.”

5. The fourth proviso to this section is important and may also be reproduced, here:

“Provided also that the prescribed authority shall, except in cases provided for in the explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.”

6. sub-section (7) of Section 21 which has been the subject of considerable debate says—

“(7) Where during the pendency of an application under clause (a) of sub-section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application farther on the basis of their own need in substitution of the need of the deceased.”

7. An examination of the aforesaid statutory provision shows that an order of eviction can be passed against a tenant on the landlord's establishing two facts:

(1) that the building is bona fide required by the landlord for occupation by himself or any member of his family either for residential purposes or for purposes of any profession, trade or calling.

(ii) that in granting the application the Prescribed Authority is bound to compare the hardship likely to be caused to that landlord from the refusal of the application with the hardship likely to be caused the tenant of from the grant of it.

8. It is thus apparent that an application under Section 21(1)(a) is allowed only upon proof of the bona fide need of the particular landlord applying for eviction of the tenant and further upon a comparison of relative hardship of that landlord and such members of his family for whose occupation the application is made vis-a-vis the hardship likely to be caused to the tenant from the grant of the application. The important thing is that the comparison of the hardship is between a particular landlord and his family on the one hand and the tenant on the other. The other important feature is that the bona fide need examined by the Prescribed Authority is the personal and individual need of the landlord applying for eviction or the members of his family for whose benefit or occupation the eviction is sought.

9. The next striking feature is that if the landlord dies during the pendency of an application under clause (a) of sub-section (1) of Section 21, his legal representatives have no automatic right to prosecute such application on the basis of the personal or individual need of the deceased landlord. They can do so but only on the basis of their own specific need in substitution of the need of the deceased.

10. It would thus seem clear that it is not until the Prescribed Authority has had an occasion to consider the personal need of the particular landlord or that of his legal representatives applying under Section 21(7) that an application under Section 21 is allowed. Further, it is allowed only upon a comparison of the specific hardship likely to be suffered by the original landlord or his legal representatives applying for substitution under sub-section (7) of Section 21 with that of the tenant.

11. From these provisions and other provisions which shall be referred to herein below the conclusion seems inescapable that the assignee of a landlord purchasing the building after passing of the order of eviction under Section 21(1)(a) whose need and comparative hardship the Prescribed Authority has had no occasion to investigate and adjudicate upon cannot apply for enforcement of the order of eviction under Section 23. In my judgment recognition of such a right would without doubt result in complete frustration of the entire scheme of the enactment. It will put the assignee in a position of incomparable advantage over the tenant—in that the assignee shall have a right to evict a tenant under Section 23 even though he may not be needing the accommodation bona fide or at all or, if he may be needing the accommodation bona fide the hardship likely to be suffered by him by the refusal to grant him the relief under Section 23 may be nil in comparison with the hardship likely to be suffered by the tenant by the grant of that relief. It is further to be noted here that there is no machinery provided either under Section 23 or else where in the statute for investigation of bona fide need of the landlord under Section 23 or for the comparison of the relative hardship. The inevitable result of??? holding the petitioner's contention would be that the tenant under such circumstances shall have to go on the mere asking of the assignee even though he may not be needing the accommodation at all. It is also not difficult to see that even the entire adjudication of the claim of bona fide need of the transferor-landlord and the comparison of relative hardship shall have been rendered wholly meaningless.

12. The next important provision to be noted is Section 24(1) of the Act which runs thus:

24. Opinion of re-entry by tenant—(1) Where a building is released in favour of the landlord and the tenant is evicted under Section 21 or on appeal under Section 22, and the landlord either puts or causes to be put into occupation thereof any person different from the person for whose occupation according to the landlord's representation, the building was required, or permits any such person to occupy it, or otherwise puts it to any use other than the one for which it was released, as the case may be, omits to occupy it within one month or such extended period as the prescribed authority, may for sufficient cause allow from the date of his obtaining possession or in the case a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, or in the case of a building which was proposed to be demolished, omits to demolish it within two months or such extended period as the preseribed authority may for sufficient cause allow from the date of his obtaining possession, then the prescribed authority or, as the case may be, the District Judge, may, on application in that be healf within three months from the date of such act or omission, order the landlord to place the evicted tenant in occupation of the building on the original terms and conditions, and on such order being made, the landlord and any person who may be in occupation thereof shall give vacant possession of the building to the said tenant, failing which the Prescribed Authority shall put him into possession and may for that purpose use or cause to be used force as may be necessary.”

13. It is obvious that if the assignee is permitted to evict the tenant under Section 23 on the strength of the order passed in favour of the assignor, the aforesaid provisions will be attracted at once and the assignee would be liable to be evicted. For where the assignee is a person different from the person for whose occupation according to the landlord's representation the building was required, the landlord would be deemed to have put or caused to be put into occupation a person different from the individual or individuals for whose occupation the landlord had sought and obtained the order of eviction under Section 27. The landlord would be deemed under such circumstances, in any case, to have omitted to occupy it in pursuance of the order passed under Section 21, thereby inviting, or throwing it open to the Prescribed Authority to take action against the assignee under Section 24.

14. Where such is the inevitable consequence of the assignee being permitted to occupy the accommodation under Section 23, it seems difficult to uphold the contention that in spite of that result the assignee would still have the right to apply under Section 22 for enforcement of the order of eviction. The entire process of putting the assignee into possession under Section 23 would be an exercise in futility.

15. It cannot have been intended by the Legislature that on the one hand the assignee shall have the right to apply for enforcement of the order of eviction passed in favour of the assignor and, on the other hand, it would at once leave the assignee exposed to the consequence of being evicted under Section 24.

16. Another provision which needs to be noticed, in this context is the first proviso to Section 21(1) which provides that where the building was in occupation of a tenant since before its purchase by the landlord no application can be entertained under clause (a) unless a period of three years has elapsed since the date of such purchase and the landlord has given notice in that behalf to the tenant not less than six months before such application. This provision too supports the tenant's contention. An schematic analysis of the statute, therefore, points unmistakably to the conclusion that where the assignee is not a person for whose occupation the landlord sought the eviction of the tenant, he cannot claim the right to evict the tenant under Section 23 on the strength merely of the purchase of the property. He can do so by bringing a fresh application under 21 with all the constraints of that provision.

17. In Shama Bano v. Jagdish Prasad 1 the Delhi High Court had occasion to consider an identical controversy arising under the Delhi Rent Control Act 1958 the provisions of which are analogous to those of the U.P Urban Building (Regulation of Letting, Rent and Eviction Act). The question raised was whether the transferee of a landlord had a right to apply for execution of a decree for ejectment obtained by his transferor on the ground that the premises were bona fide required by the transferor landlord. The Delhi High Court answered the question emphatically in the negative and held that the assignee could not take any advantage of the order passed in favour of his predecessor, because the said order was founded on a need which was personal to the transferor landlord. The Delhi High Court held that having regard to the scheme of the enactment it must follow by necessary intendment that the right to evict the tenant was personal to a particular landlord and was incapable of being transmitted to a purchaser of the property. The learned Judge observed thus:

“The Controller has to see whether the requirement of the landlord is bona fide. bona fide is a condition of the mind. The controller has to be satisfied of the genuineness of the landlord. It can be predicated of a particular landlord that his need is genuine. Similarly the means of the particular landlord to rebuild the premises have to be seen. What is predicative of landlord A is not necessarily predicative of the transferee landlord B,

18. This decision fully supports the view which I have indicated above.

19. Now I turn to the facts of the present case. It was not disputed by the learned counsel for the petitioner that the eviction of the tenant was not sought for the occupation of the petitioner, i.e, the petitioner was not among the persons for whose occupation the eviction of the tenant was sought by the landlord Radha Kishan under Section 21(1), It is also not disputed that neither the need of nor the hardship likely to be suffered by the petitioner was the subject of adjudication which resulted in the order of eviction of the tenant under Section 21(1)(a). That being so, the Court was right in holding that the petitioner's application was incompetent.

20. Learned Counsel for the petitioner urged that the same meaning should be assigned to the term ‘legal representatives’ occurring in sub-section (7) of Section 21 in construing Section 23, i.e if the legal representatives of the original landlord have a right to continue the proceedings launched by the original landlord by virtue of sub-section (7), the assignees, we are undoubtedly the legal representatives of the original landlord, ought also to be able to apply for eviction under Section 23. I cannot agree. Indeed, far from supporting his contention, sub-section 7 completely courts across the petitioner's contention. For, in first place, sub-section 7 deals with the right of the landlord's legal representatives where the landlord dies during the pendency of the proceedings. It confers no such right in the event of the landlord's interest passing otherwise than by his death. Secondly and more importantly such a right has been conferred but subject to the condition that the legal representatives have to establish their own need in substitution of the landlord's. This clearly leads to the conclusion that only those legal representatives have the right to claim eviction under Section 23 whose needs and hardship have been subjected to the scrutiny of the Prescribed Authority.

21. Learned counsel next submitted that the definition of the landlord under Section 3(j) is wide enough to cover the case of an assignee and consequently it must be held that the assignee can also apply under Section 23. I am unable to accept the contention. Section 3 which defines various terms occurring in the statute itself says that unless the context otherwise requires the various terms defined thereunder shall have the meaning assigned to them under that provision. I have already examined the context at some length and in my opinion the contextual setting of the provisions under consideration completely, excludes an assignee from the defintion of the landlord in so far as Section 23 is concerned.

22. The last submission of the learned counsel for the petitioner was that Section 23 consists of two parts, one is to cause eviction of the person found in actual occupation and the other is to put the landlord into possession. Even if therefore it is assumed that the petitioner does not have the right to occupy the accommodation, the Prescribed Authortiy was still enjoined to cause the eviction of the tenant and it committed an illegality in rejecting the petitioner's application. In my opinion no such dichotomy can be read into Section 23. The two acts, one of evicting the tenant and the other of putting the landlord into possession constitute a single integrated action. Where the person applying for being put into possession under Section 30 does not possess the right to claim eviction under that provision the Prescribed Authority would be perfectly empowered to refuse to take action against the tenant under Section 23 at the instance of such a landlord. There is no such compulsion or duty cast on the Prescribed Authority to evict the tenant, even though the person applying as no right to be put into possession.

23. No other point was urged.

24. In the result, the petition fails and is dismissed with costs.