Arun Kumar v. Rent Control and Eviction Officer,Dehradun and others

By means of this petition, moved under article 227 read with article 226 of constitution of india, the petitioner has sought writ in the nature of certiorari quashing the judgment and order dated 20-01-2004 passed by the Rent Control and Eviction Officer, Dehradun, in case No. 54 of 1998, whereby vacancy has been declared in respect of the property No. 53-H, Ground floor, Rajpur Road, Dehradun.

2. Brief facts of the case, as nar­rated in the petition, are that the peti­tioner was initially a tenant in the afore­said property consisting of two rooms and a bathroom, in the ground floor, since 1991. Thereafter, an agreement for sale of the said property was alleg­edly entered between the petitioner Arun Kumar and respondent No.2, Ashok Kumar and an amount of Rs. 5,000/- was paid to him as earnest money on 30th August, 2001. On said date, a receipt-cum-possession letter was issued by the respondent No.2, a copy of which is Annexure-1 filed with the petition. However, respondent No.3, Km. Poornima Pathak, thereafter moved an application (copy Annexure-2 to the petition) under section 16 of the u.r urban buildings (regulation of letting, rent and eviction) act, 1972 for allotment of said accommodation. The Rent Control and Eviction Officer on said application, invited the report of the Rent Control Officer, who sub­mitted his report dated 07-09-1998 (copy Annexure-3 to the petition). However, the petitioner alleges that his possession in the property is protected under section 53a of the transfer of property act, 1882, and his occupation cannot be said to be an unauthorized occupation. The petitioner has admit­ted that the document which was ex­ecuted by the respondent No.2 was im­pounded vide order dated 27-12-2002, as the same was not sufficiently stamped. Meanwhile, the petitioner has filed a suit for specific performance of contract against the respondent No.2, impleading respondent No.3 also, as a party therein. After considering the ob­jection of the petitioner, the Rent Con­trol and Eviction Officer passed order dated 20-01-2004 (copy Annexure-6 to the petition), whereby vacancy has been declared in respect of the property in question holding that petitioner Arun Kumar is in un-authorized occupation of the accommodation in question. The petitioner had challenged said order on the ground that his occupation was not un-authorized one as his possession is protected under section 53a of the transfer of property act, 1882.

3. Respondent No.2 (the landlord) did not contest this petition, but re­spondent No.3 (applicant for allotment) has filed a counter affidavit, wherein she has stated that since the petitioner was allowed to occupy the accommo­dation in question as tenant by the landlord (respondent No.2) without an allotment order, as such, since 1991, the possession of the petitioner in the accommodation was an un-authorized occupation. Challenging the agreement between the petitioner and respondent No.2, it has been stated in the counter affidavit that it was neither a registered document nor a valid agreement. It is further stated that petitioner did not file any objection relating to protection un­der section 53a of the transfer of property act, 1882 before the Rent Control and Eviction Officer, nor is he entitled to said protection. However, she has admitted that a suit has been filed by the petitioner for specific per­formance of contract but the answering respondent has alleged that it has no ef­fect on the question of vacancy, which has been declared by the Rent Control and Eviction Officer (respondent No. 1).

4. I heard learned counsel for the parties and perused the record.

5. It is not disputed between the parties that the U.R Urban Buildings (Regulation of Letting, Rent and Evic­tion) Act, 1972, (Act No. 13 of 1972) is applicable to the building in question. It is also not disputed between the par­ties that petitioner was inducted as ten­ant by respondent No.2 (landlord) in the year 1991, without any allotment order. section 11 of the u.r act no. 13 of 1972, reads as under :

"11. Prohibition of letting without allotment order .-Save as hereinaf­ter provided, no person shall let any buildings except in pursuance of an allotment order issued under Section 16."

Section 12 of said Act further pro­vides as under :

"12. Deemed vacancy of building in certain case.- (1) A landlord or ten­ant of a building shall be deemed to have ceased to occupy the building or a part thereof if-

(a) he has substantially removed his effects there from, or

(b) he has allowed it to be occupied by any person who is not a member of his family, or

(c) in the case of a residential build­ing, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.

(2) ........

(3)

(4)

(5)

Impugned order shows that the va­cancy has been declared under section 12 of the aforesaid act i.e. the U.R Act No. 13 of 1972. The reasons men­tioned in the impugned order show that the Rent Control and Eviction Officer has found that since the occupation of Arun Kumar (petitioner) is un-author­ized in the building (in violation of Sec­tion 11 and clause (b) of Section 12, quoted above), as such, he has de­clared it a vacant building. Respondent No.3 is applicant for allotment of the house in question. In the circumstances, since the U.R act no. 13, 1972 is ap­plicable to the building, and the peti­tioner was inducted in the year 1991 by the landlord (respondent No. 2) in vio­lation of section 11 and 12 of said act, as such, the finding of the Rent Con­trol and Eviction Officer that occupation of the petitioner is unauthorized, since 1991, cannot be said to be erro­neous or against the law.

6. Now, only question before this Court is, whether, the possession of the petitioner is protected under section 53a of the transfer of property act, 1882, if so, its effect ?

The section 53a of the transfer of property act, 1882, reads as under :

"53A. Part Performance.- Where any person contracts to transfer for consid­eration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascer­tained with reasonable certainty, and the transferee has, in part per­formance of the contract, taken pos­session of the property or any part thereof, or the transferee, being, al­ready in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the con­tract, though required to be regis­tered has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner pre­scribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract; Provided that nothing in this section shall affect the rights of transferee for consideration who has no notice of the contract or of the part per­formance thereof."

A plain reading of aforesaid section clearly shows that a transferee who has already in possession if continues in possession on account of contract with the transferor he can protect his posses­sion but, at the same time, the protec­tion provided under the aforesaid Sec­tion 53A is available only against the transferor or the person claiming under him. Neither the Rent Control and Eviction Officer, nor respondent No. 3, Poornima Pathak are transferor nor any person claiming right under him. At the most, it is respondent No.2, Ashok Kumar, the landlord who can be said to be a transferor (if the alleged agree­ment is treated to be valid). In other words possession of transferee is pro­tected only against transferor. As such, the impugned order passed against the landlord (the alleged transferor) by the respondent No.l, remains unaffected. However, this Court is not inclined to express any view as to the validity of the alleged agreement and impounding of the document for being insufficiently stamped, as a civil suit No. 632 of 2002, appears to have been pending before the civil court regarding the spe­cific performance of contract between the petitioner and respondent No.2.

7. Learned counsel for the petitioner drew my attention to the principle of law laid down in Rajendra Tiwary Vs. Basudeo Prasad reported in 2001 A.I.R. S.C.W. page 4708, and it is argued that the Rent Control and Eviction Officer has no authority to go into the question of ti­tle of the accommodation in question and he should have not declared the va­cancy till the title is declared by the civil court. I have gone through the aforesaid case law. In its paragraph 16, the Apex court has held that under the Bihar Build­ing (Lease, Rent and Eviction) Control Act, 1983, the court has no power to enquire into the title of the plaintiff. But the aforesaid case law does not help the present petitioner for the reason that no­where in the impugned order, the Rent Control and Eviction Officer has entered into the controversy of title. Rather, it is admitted fact that respondent No. 2, Ashok Kumar, is the owner of the build­ing in question and even if he has ex­ecuted any agreement of sale in favour of the petitioner, the sale deed is yet to be executed, as such, neither said con­troversy was before the Rent Control and Eviction Officer nor has it given any find­ing as to the validity of the agreement.

8. In view of aforesaid discussion, there appears no illegality in the im­pugned order dated 20-01-2004 declar­ing vacancy in respect of accommoda­tion in question. Therefore, the petition is liable to be dismissed. The same is dismissed. No order as to costs.

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