Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Misc. Writ Petition No. 221 of 1986

Judges

N.N Mithal, J.

Acts

U.P Act 13 of 1972, the provisions of Sections 11 and 13 read with Section 16
SECTION 53 TRANSFER OF PROPERTY ACT
1987 (1) ARC 116. Non-compliance of Rule 8
provisions of U.P Act 13 of 1972
Section 16. Likewise Section 13
provisions of U.P Act
U.P Act 3 of 1947,

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Smart Summary

Structured Summary of Judicial Opinion (N.N Mithal, J.)

Factual and Procedural Background

The landlady (Respondent No. 3) is the admitted owner of the disputed premises in which the petitioner was inducted in 1977. Because Respondent No. 3 was in service, the property was managed by one Mrs. Suntaram. On Respondent No. 3's retirement in 1978, she applied for release of the accommodation for personal need on the ground that there being no order of allotment in favour of the petitioner, he was an authorised (sic) occupant and the premises should be declared vacant and released to her.

The application for release was contested by the petitioner but, after proceedings, the application was allowed and the petitioner's revision was dismissed. The petitioner filed the present writ petition challenging both the release order and the dismissal of his revision.

Legal Issues Presented

Whether the petitioner can be treated as a tenant or licensee of the premises, or is to be deemed an unauthorised occupant in the absence of a valid order of allotment under the applicable U.P. legislation.
Whether the release order is invalid for failure to declare or notify vacancy in accordance with the procedure (Rule 8) required by the relevant rules.
Whether the landlady (Respondent No. 3) is estopped from denying the petitioner's tenancy or licence because she previously admitted him as a tenant or licensee (i.e., whether estoppel prevents the landlady from claiming the petitioner is an unauthorised occupant).

Arguments of the Parties

Petitioner's Arguments

The petitioner contended he could not be treated as an unauthorised occupant because he was an accepted tenant of the premises; alternatively, he argued he was at least a licensee.
He argued the release order was invalid because no vacancy had been declared or notified in compliance with Rule 8.
The petitioner argued the landlady was estopped from disputing his status as tenant/licensee because she had herself admitted him as such.

Respondent No. 3 / Landlady's Position (as set out in the record)

Respondent No. 3 applied under Section 21 for release of the accommodation on the allegation that the petitioner had been inducted as a licensee by her agent (Smt. Sunia Ram).
The factual record shows that the application was amended and, at one stage, the petitioner was admitted to be a tenant; later, procedural developments included amendments and appellate proceedings in which issues of validity of tenancy without a valid allotment were raised.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Murlidhar Agarwal v. State of U.P., (1974) 2 SCC 472 : AIR 1974 SC 1924	Upheld an earlier Full Bench decision (Udho Das) and addressed a lacuna in the older U.P. Act regarding the bar on creating tenancy without an allotment order.	The court noted that under the old U.P. Act there had been a lacuna addressed by Murlidhar Agarwal and that this decision supported the conclusion that tenancy created without a valid allotment was problematic; the opinion treats Murlidhar Agarwal as confirming the earlier Full Bench view.
Udho Das v. Prem Prakash, AIR 1964 Alld 1 (Full Bench)	Earlier Full Bench decision on the effect of creating tenancy without order of allotment under prior statutory regime.	The Supreme Court in Murlidhar Agarwal upheld this Full Bench decision; the present Court refers to that line of authority in explaining the evolution of the law.
Geep Industrial Syndicate Ltd., 1982 (1) ARC 586 (Division Bench)	Considered Sections 11, 13 and 16 of U.P. Act 13 of 1972 and held that a contract of tenancy without a valid allotment order would be void; explained the changed position from the earlier Act.	The court relied on this Division Bench decision as stating the accepted legal position that any contract of tenancy in respect of accommodation subject to U.P. Act 13 of 1972 is void in the absence of a valid order of allotment.
Rajendra Singh v. District Judge, Kanpur, 1987 (1) ARC 116	Held that non-compliance with a procedural rule (Rule 8) will not vitiate proceedings if the affected party participated in the proceedings and was not prejudiced.	The court applied this principle to hold that mere irregularity in following Rule 8 would not invalidate the release order where the petitioner had an opportunity to be heard and was not prejudiced.
Geep Industrial Syndicate Ltd. v. Rent Control and Eviction Officer, Allahabad (Division Bench) (referred to as 'supra')	Addressed vacancy declaration procedure and held that where the petitioner had full opportunity to prove there was no vacancy, the order could not be invalidated merely for being founded on an ex parte report.	The court considered this decision analogous and held its ratio applicable: because the petitioner had an opportunity to participate and was not prejudiced, the procedural irregularity did not invalidate the order.
Nathu v. District Judge, 1983 (1) ARC 477	Single Judge held that an occupant put in possession under an agreement to sell could not turn around to claim the possession was unauthorised; the occupant's position in that case was protected under Section 53-A of the Transfer of Property Act (not tenancy-based).	The court distinguished Nathu on its facts and statutory basis (Section 53-A) and held it was not applicable to the present case involving a purported tenancy created without a valid allotment order.

Court's Reasoning and Analysis

The court proceeded through the issues in the following manner, applying statutory provisions and precedents cited in the record:

On status (tenant/licensee/unauthorised occupant): The court observed that the petitioner had taken differing stances during the proceedings (at one point being admitted to be a tenant, later seeking to contend tenancy was void). The court emphasized statutory bars in Sections 11 and 13 (as interpreted under U.P. Act 13 of 1972) which prohibit letting or occupying buildings except pursuant to an order of allotment under Section 16. Reading Sections 11 and 13 together, the court held the bar to creating a tenancy without an allotment is complete and any person occupying such accommodation without an allotment is deemed an unauthorised occupant. Relying on the Division Bench decision in Geep Industrial Syndicate Ltd. (1982) and earlier authority, the court concluded that a contract of tenancy in the absence of a valid allotment order would be void under the present Act.
On the licensee claim: The court analysed the statutory definition of 'licensee' (Section 2-A and Section 14 referred to in the opinion) and noted that only a temporary occupant permitted for a term not exceeding three months would qualify. The petitioner did not claim temporary occupation for three months or less; therefore the licensee argument failed.
On procedural compliance (Rule 8 and vacancy declaration): The court acknowledged the petitioner's contention that Rule 8 procedures for declaring and notifying vacancy were not complied with. However, the court emphasised that Rule 8's underlying objective is to ensure affected persons are given an opportunity to be heard and not to be taken behind their back. Because the petitioner had been given full opportunity to be heard and to present his case before the authority, the court held that mere irregularity in following the procedure—where no prejudice is shown—would not vitiate the order. The court relied on Rajendra Singh and the Geep Industrial Syndicate precedent to support the proposition that non-compliance with Rule 8 is immaterial where the tenant participated and was not prejudiced.
On estoppel (landlady's prior admission): The court addressed the petitioner's estoppel argument that the landlady, having admitted the petitioner as tenant/licensee, could not now deny that status. The court observed that the procedural history showed the petitioner himself had sought amendments and had advanced the plea that a tenancy contract without a valid allotment was void. The petitioner had earlier advanced the position that benefited him; he could not now reverse course to claim estoppel against the landlady. The court also noted that the rights of the District Magistrate to treat the possession as unauthorised for want of an allotment order remain unaffected; a deemed vacancy would allow the landlady to seek release.
On reliance to contrary authority (Nathu): The court considered Nathu but distinguished it on the ground that the occupant in that case was protected by Section 53-A of the Transfer of Property Act and the situation was not based on a contract of tenancy. Therefore Nathu did not support the petitioner's position here.

Summarily, the court found no illegality or error of law in the impugned orders: the petitioner's contentions on tenancy, licence and procedural defect were rejected on the statutory and factual basis set out above.

Holding and Implications

Holding: The writ petition is dismissed. The court found that the orders challenged (the release order and the dismissal of the petitioner's revision) did not suffer from any illegality or error of law so as to warrant interference; the writ petition was dismissed with costs.

Implications:

The direct effect is that the release order in favour of the landlady stands and the petitioner's challenge fails.
The court applied and reiterated the principle (as stated in Geep Industrial Syndicate Ltd. and related decisions) that a contract of tenancy in respect of accommodation subject to U.P. Act 13 of 1972 is void in the absence of a valid order of allotment.
The court made clear that procedural irregularity in declaring/ notifying vacancy (Rule 8) will not invalidate an order if the affected person had an opportunity to participate and was not prejudiced—drawing on Rajendra Singh and related authority.
The opinion does not purport to announce a novel legal principle beyond applying existing case law and statutory interpretation; it affirms the conclusions already reflected in the cited authorities.

Disposition: Petition dismissed.

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Lachhman Prasad Richaria v. Iv Additional District Judge

N.N Mithal, J.:— Respondent No. 3 is admittedly the owner and landlady of the disputed premises in which the petitioner was inducted in 1977. Since the respondent No. 3 was in service, the property was under the management of one Mrs. Suntaram. On her retirement in 1978, the respondent No. 3 applied for release of the accommodation for her personal need on the ground that there being no order of allotment in favour of the petitioner, he was an authorised occupant and declaring the premises as being deemed to be vacant the same may be released in her favour.

2. Despite contest the application was allowed and petitioner's revision was also dismissed. In the present writ petition both these orders are being challenged. Sri Keshri Nath Tripathi for the petitioner made a three pronged attack urging that the petitioner can not be treated as an unauthorised occupant as he was an accepted tenant thereof, in any case he was a licensee. Secondly, no vacancy having been declared or notified by complying Rule 8, the release order was invalid and lastly he urged sat the respondent No. 3 herself having admitted the petitioner as tenant or licensee, she is estopped from challenging her status as a tenant and to contend that he was an unauthorised occupant.

3. Before taking up the objections, it would be better to set out the relevant facts relating to the controversy. The respondent No. 3 had initially filed an application under Section 21 for the release of the accommodation on the allegation that he was inducted in the premises as a licensee by her agent Smt. Sunia Ram. In his defence, the petitioner claimed to be a tenant of the disputed premises. The application was subsequently amended and the petitioner was admitted to be tenant thereof. After contest the application for release was allowed. The petitioner filed an appeal and during the pendency of that appeal, he sought an amendment introducing a plea that tenancy between the respondent No. 3 and himself in the contract of absence of any to the provisions of U.P Act tenant between them was void, urged that the application for release was not legally amendment was allowed and while the appellate Court it allowed the appeal on the between the it was sub-sec under Section 13 read with after declaring the vacancy.

4. Coming now to the first submission made by the petitioner that he was a tenant of the accommodation and was in any case a licensee thereof, it may be stated that in view of the stand earlier taken by the tenant, he can not be allowed to take a somersault and urge once again that he was a tenant. As a matter of fact, under Section 11, there is a total bar against the landlord not to let any building except in pursuance of an order of allotment issued under Section 16. Likewise Section 13 creates a specific bar that no person shall occupy any building in any capacity after the landlord or the tenant ceases to occupy it otherwise than under an order of allotment or release under Section 16. The Section further provides that if any such person is in occupation of a building, he shall be deemed to be an unauthorised occupant thereof. Reading Sections 11 and 13 together, the bar for creating a tenancy of any building is complete. Neither the landlord of a building nor the occupant can claim tenancy rights in respect of such building without an allotment and he shall be deemed to be unauthorised occupant thereof.

5. Under the old U.P Act 3 of 1947, then was a lacuna in the provision and the provision and the bar for creating tenancy without an order of allotment only applied to the landlord but did not apply to the occupant. It was on account of this that in the case of Murlidhar Agarwal v. State of U.P, (1974) 2 SCC 472 : AIR 1974 SC 1924, the earlier Full Bench decision of this Court rendered in Udho Das v. Prem Prakash, AIR 1964 Alld 1 (FB), was upheld. After the coming into force of U.P Act 13 of 1972, the provisions of Sections 11 and 13 read with Section 16 came up for consideration before a Division Bench in the case Geep Industrial Syndicate Ltd., 1982 (1) ARC 586 (DB). Considering the dictum laid down by thes Supreme Court in the case of Murlidhar Agarwal (supra) and after analysing the various provisions of the present Act, the Bench was of the opinion that a contract of tenancy, in the absence of a valid allotment order, would be void. In fact that the Division Bench explained the distinction drawn by the Supreme Court in Murlidhar Agarwal's case as regard the binding character of contract between the District Magistrate on the one hand and the landlord and the tenant on the other and come to the conclusion that no such distinction existed any longer since there was an express prohibition both in the letting and occupying of the building. The accepted legal position, therefore. Is that any contract of tenancy in respect of an accommodation which is subject to the provisions of U.P Act 13 of 1972 would be void in the absence of a valid order of allotment.

6. Proceeding to the second leg of this argument that the petitioner was at least a licensee, it may be stated that only possession of such a licensee can be regularised under Section 14 as may come within the scope of the term ‘licensee’ as defined in Section 2-A of the Act i.e One who is only temporarily permitted to occupy a residential building for a term not exceeding three months. Admittedly such is not the case with the petitioner. He does not claim that he was allowed to stay in the residential accommodation in question temporarily for a term not exceeding three months. This plea therefore, must fail.

7. It is next urged that no vacancy was declared nor the same notified as required by the Rules. It was urged that the procedure laid down in Rule 8 was not followed in the instant case. These arguments, however, lost much of their force once it is realised that before the application for release was allowed, the petitioner was given full opportunity of being heard and presenting his case before the concerned authority. The real object of Rule 8 is to ensure that the proceedings are not taken behind back the either the landlord or the tenant or other occupants and its underlying object is that proper opportunity of being heard should be given to these persons so that an adverse order is not obtained behind their back. This object can be achieved not only by proper intimation to them of the initiation of proceedings with regard to the property in question but also by allowing them to join the issue at a later stage but before any final order is passed. Even if the procedure as laid down is not strictly followed and there is no consequent injury or prejudice caused to the affected party, then a mere irregularity in following the procedure laid down will not vitiate the order as held in the case Rajendra Singh v. District Judge, Kanpur, 1987 (1) ARC 116. Non-compliance of Rule 8 will be of no consequence if the tenant had participated in proceeding for allotment and had an opportunity to file objections. Similarly in Geep Industrial Syndicate Ltd. v. Rent Control and Eviction Officer, Allahabad (supra), a Division Bench of this Court had occasion to deal with this aspect of the matter and it was held that since the petitioner had full opportunity to prove his case that there was no vacancy, the order can be said to be invalid on the ground that the order declaring vacancy was founded on an ex parte report. The ratio of decision in the above cases is dearly applicable to the present case. There is nothing to Indicate that the petitioner has in any way been prejudiced in the proceedings or that the order was passed behind his back. This point also, therefore, has no merit and must fail.

8. Lastly, it was argued that the landlord cannot claim her need to be bona fide as she herself has let in the petitioner as a tenant being herself guilty of violating the provisions of the Act she can not now take advantage of the same. It is urged that she is estopped from disowning her own Act. The truth, however, is otherwise. In fact, as stated earlier while narrating the history of the dispute, the landlady had filed her application under Section 21 treating the petitioner as her tenant. The petitioner himself sought an amendment in his written statement when his appeal was pending and it was he who raised the plea that the contract of tenancy was void for want of a valid allotment order and as such application under Section 21 was not maintainable. This plea was accepted and the landlady's application was dismissed. Having himself taken this stand, the petitioner can not be permitted to accuse the landlady of estoppel when she takes the stand suggested by the petitioner himself. Having himself reaped the benefit of this plea earlier, he can not now retrace his steps.

9. In support the learned Counsel has relied upon a decision in Nathu v. District Judge, 1983 (1) ARC 477, where a learned Single Judge was of the view that where an occupant was put in possession of a property in pursuance of an agreement to sell, he can not turn around to claim that the possession of the person was unauthorised. However, in that case the position of the occupant was protected under Section 53-A of the Transfer of Property Act and was not based on a contract of tenancy. It is true that the scope of Section 13 is very wide for it prohibits the occupation of a building by any person without allotment in any capacity unless it is covered by an order of allotment. As a matter of fact the learned Single Judge in that case was not concerned about the legal consequences on the relationship of landlord and tenant if the same is created without an allotment order as held in 1982 (1) ARC (supra). In my opinion, the landlady in this case is not estopped from raising this plea. Apart from this there is no bar on the rights of the District Magistrate to treat this possession as unauthorised for want of allotment order. If the premises is deemed vacant by the District Magistrate, it certainly provides an opportunity to the landlady to seek release thereof in her favour. In my opinion, therefore, the mere fact that proceedings in this case were initiated at the instance of the landlady herself is not sufficient to warrant imposition of a bar or estoppel against her. In view of what has been discussed above, I find that the orders challenged herein do not suffer from any illegality or other error of law so as to warrant any interference by this Court. The writ petition accordingly fails and is hereby dismissed with costs.

10. Petition dismissed.

Lachhman Prasad Richaria v. Iv Additional District Judge

Structured Summary of Judicial Opinion (N.N Mithal, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent No. 3 / Landlady's Position (as set out in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Lachhman Prasad Richaria v. Iv Additional District Judge

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