Holding

An application under Section 16(1)(a) is maintainable even before actual vacancy, and the landlord’s request for allotment was valid.

Summary

The appellants, landlords of a building occupied by tenant Keshar Singh who ran Hotel Waldrof, obtained a decree for his eviction due to rent default. Anticipating vacancy, they filed an application under Section 16(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 to have the premises released to them. Respondent No. 3, Harbans Singh, claimed to be a partner of the tenant and sought to block the eviction, but his claim was rejected by the district court and his subsequent suit to set aside the decree was dismissed. The Eviction Officer released the property to the landlords, but the appellate authority reversed this, holding the Section 16 application invalid because the premises were not yet actually vacant; the High Court upheld that view and dismissed the landlords' writ petition. The Supreme Court held that Section 16(1)(a) does not require actual vacancy before filing the application and that the appellate authority erred. Consequently, the appeal was allowed, the High Court judgment set aside, and the eviction officer’s order in favour of the landlords restored, with costs awarded to the appellants.

Issues considered

Whether an application under Section 16(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is maintainable before the premises actually become vacant.
Whether the landlord was entitled to have the vacant premises allotted to him despite the pending suit by Respondent No. 3.
Whether Respondent No. 3 had a right to be heard before the eviction officer notified vacancy.

Legislation cited

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 16(1)(a)

Subjects

evictionvacancy noticeSection 16landlord-tenantU.P. Urban Buildings Actwrit petitionpartnership claim

Judgment

!'104
(
A ASHOK KUMAR & ORS.
\'.

I ADDITIONAL DISTRICT JUDGE, NAINITAL & ORS.
January 9, 1981
8 [P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]

Uttar Prade3h Urban Buildings (Regulation of Lttting, Rent and Eviction)
Act, 1972-Sectlon 16(1)(a)-Scope of.

The appellant. were the landlords of a building in which the tenant was
running a hotel. They filed a suit for the tenant's eviction on the ground that··~
c he !lad defaulted in the payment of rent. The suit was decreed. The landlord,
in anticipation of the premises falling vacant, filed an application before the
Rent Controller and Eviction Officer under section 16 of the. U.P. Urban Buildinas
(Regulation of Lelling, Rent and Eviction) Act, 1972 for release of the building
in question.

In the meantime respondent No. 3 filed a petition before the District Judge
D alleging that he was a partner in the hotel business with the consent and permb-
sion of the landlord and that the landlord be directed not to dispossess him.
This application was rejected on the ground that respondent No. 3 was neither
a party to the ejectment suit nor was any objection filed by him during the
pendency of the suit alleging' that he bad a share in the business carried out by
!he tenant.

E After physical JlO"'e"ion of the premises was delivered to the appellant decree-
holder respondent No. 3 filed a suit against the appellant and the former tenant
faii setting aside the ejectment decree. He claimed that it was he who was the
sole tenant and, that for this reason the decree could not have been passed
against the former tenant. The suit was dismi.!sed.

The appellant made an application before the Eviction Officer that the pre-
mises be allotted to him. The Eviction Officer rejected the objection raised
by respondent No. 3 and released the property in favour of the appellant. Th•
Appellate Authority, however, allowed respondent No. 3 ·, appeal holding
the application filed by the landlord ,... not maintainable under section 16 of
that""
the Act as the tenant bad not been actually ejected when the application for
notifying the vacancy was made.
G The appellant'• writ petition was dismissed by the High Court on the ground
that before notifying the vacancy tho Eviction Officer did not hear reipondent
No. 3: .
Allowing the appeal

HEW : The High Court w.. in error in dismis.ling the appellant's writ
petition. The High Court doeo not appear to have con•idered the history Of
H the case and the various proceedings leading to the eviction of the tenant and
to the fact that respondent No. 3 bad ao claim or right to the property. Re<1-
pondent No. 3 never came in po11C11ion of the premises but tried to defeat or
. j
ASHOK KUMAR v. I ADDL. DISTT. JUDGE (Fazal Ali, !.) 505

delay the decree by varioll8 subterfuges and pretexts. At no stage could he A
show that ho was either a sub-tenant or a partner of tho tenant. There wOi,
therefore, no question of his being heard by the Eviction Officer after possession
waa delivered to the landlord and the vacany notified. If at all, such a hearing
would have been futile and would have ultimately led to the same reswt.
[508E&DJ
The Appellate Authority took a wrong view of the law in allowing the res- B
pondent's appeal. Under section 16(1) of the Act it was not necessary that
tho application for notifying the vacancy should be made only after the premises
have become actually vacant. Section 16(1)(a) so far as relevant, provides that
tho District Magistrate may require a landlord to let any building which is about
"o fall vacaut to any person specified in the order. Manifestly it is not necessary
that under section 16(l)(a) the premises must actually become vacant before
an application under it could be filed before tho District Magistrate. In the C
instant case as the decree for ejectment was under contemptation it 'vas open
to the appellant to move the District Magistrate for notifying the vacancy under
the section. [507 E-GJ

CML APPELLATE JURISDICTION : Civil Appeal No. 1154 of 1974.
Appeal by Special Leave from the Judgment and Order dated
16-11-1978 of the Allahabad High Court in Writ Petition No. D
1086/76.
.... R. K. Garg, Vi;ay K. Jain and R. K. Gupta for the Appellants.
Bishamber Lal for Respondent No. 3.
'The Judgment of the Court was delivered by E
FAZAL Au, J. This appeal by special leave is directed against an
Order dated November 16, 1978 of the High Court of Allahabad
dismissing the writ petition filed by the appellants.

The facts of the case fall within a narrow compass and may be
,J"l=arised ~bus. F

The premises in question which are situated in Nainita! were
commonly known as 'Waverly Quarters' and properly called as
'Hotel Waldrof. According to the appellants the premises were
rented out to one Keshar Singh on an annual rent of Rs. 14,000 on
) November 17, 1953 and the allotment of Hotel Waldrof to the tenant, G
Keslµr Singh, was confirmed by the Rent Controller sometime in the
year 1954. Thereafter, the tenant-Keshar Singh defaulted in the
payment of rent resulting in a suit filed by the appellants for his
eviction. This suit was filed on 9-4-72 for ejectment and for reco-
very of arrears amounting to Rs. 26,743, due up to June 4, 1971.
On March 12, 1973 the tenant was asked to furufah . security for B
arrears which he failed to do and an application by the tenant for
extension of time for furnishing security was also rejected by the
(
506 SUPREME COURT REPORTS [1981] 2 S.C.R.

A District Judge on 31st March, 1973. On April 25, 1973, the land-
lord-appellant in anticipation of the premises falling vacant filed an
application before !he Rent Control and Eviction Officer, Nainital
(hereinafter referred to as the 'Eviction Officer') under s.16 of The
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred
B to as the 'Act') for release of the building in question. On this
application, the Eviction Officer directed the Inspector to submit a
report on the question as to whether or not the premises had fallen
vacant. Meanwhile as the tenant had not deposited the rent as.
directed by the Court, nor furnished the security his defence was•
struck off and the appellant's suit for eviction was decreed on 9-5-1973.
c
After the decree for ejectment was passed against the tenant,
Respondent No. 3, Harbans Singh, filed an application on 11-5-1973
in the court of District Judge, Kumaon, Nainital on the allegation that
he was a partner of Keshar Singh in the business of Hotel Waldrof
with the consent a.nd permission of the landlord and had purchased
D the moveables of the aforesaid Hotel from Keshar Singh. He further
prayed that the landlord-appellant be directed not to dispossess him
(Harbans Singh). This application was, howev•er, rejected by the
District Judge on the ground that Harbans Singh was neither a party
to the ejectment suit nor was any objection filed by him during the
pendency of the suit alleging that he had any share in the business.
E The application of Harbans Singh was accordingly rejected by the
District Judge on 12-5-73 .
• Subsequently on 21-5-1973, the Rent Control Inspector reported
to the Eviction Officer that the building in suit which was allotted to
Keshar Singh in 1954 had fallen vacant ih pursuance of the decree
F for ejectment obtained by the appellant. During the pendency of ~
snit, the original tenant, Keshar Singh had been appointed a Receiver
of Hotel Waldrof but after the decree was passed, he delivered phy-
sical possession of the Hotel to the appellant-decree holder in the
presence of witnesses. It appears that Harbans Si'ngh tried to resist
the delivery of possession and abused the Conunissioner but to no
G avail. (

Thus, having failed in his attempts, to resist the delivery of pos-
session to the appellant, Harbans Singh filed a suit (No. 47 of 1973)
in the court of District Judge against the appellant and the former
tenant, Keshar Singh for setting aside the ejectment decree passed in
II suit No. 27 of 1972 alleging that as he had become the sole tenant,
Keshar Singh ceased to be a tenant of the disputed properly and the
decree was wrongly passed against Keshar Singh. He also pleaded
ASHOK KUMAR v. I ADDL. DISTT. JUDGE (Fazal Ali, J.) 507
,
that the suit being a collusive one, the decree should be set aside. A
The suit filed by respondent No. 3 does not appetr to have been
pursued and ultimately it stood dismissed on 11-6-1975.
Sometime in July 1973 the appellant by means of an application
informed the Eviction Officer that the landlord had been delivered
possession of the Hotel and prayed that since the premises had fallen B
vacant, the same may be allotted to him. Respondent No. 3,
however, on 8-11-1973 filed objectious to the application of the
landlord for releasing the accommodation on the allegation that he
had filed a suit for setting aside the decree. The Rent Control Ins-
r
pector on being asked to report the exact position submitted his report
to the ~viction Officer who rejected the application filed \Jy respon- c
dent No. 3 and by an order dated 18-11-1974 released the property
in favour of the appellant with the exception of the outhouses which
were in possession of different tenants. Harbans Singh then tiled an
appeal on 11-4-1974 before the appellate authority challenging the
order of the Eviction Officer. This appeal was admittedly time-barred.
The appeal was, however, allowed by the appellate authority on the D
ground that the application filed by the landlord was not maintainable
... under s.16 of the Act as the tenant had not been actually ejected when
the application for notifying the vacancy was made.
There can be no doubt that the appellate authority took a wrong
view of law in allowing the appeal because under the provisions of E
s.16 ( 1) of the Act it was not necessary that the application for
notifying the vacancy should be made only after the premises have
become actually vacant. Section 16(1)(a) runs thus:
"16(1) Subject to the provisions of this Act, the District
Magistrate may by order-(a) require the landlord to Jet
F
any building which is or has fallen vacant or is about to fall
vacant, or a part of such building but not appurtenant land
&lone, to any person specified in the order (to be called an
allotment order),." (Emphasis supplied).
It is manifest that under s.16(1)(a), it is not necessary that the
) premises must actually become vacant before an application under G
s. 16 could be filed before the District Magistrate. In the instant case,
as a decree for ejectment was under contemplation, it was open to
the appellant to have moved the District Magistrate for notifying the
vacancy under s.16(1)(a) of the Act.
We have already pointed out that the premises did fall vacant sub- H
sequently and the delivery of possession was also given to the landlord
in pursuance of the decree of ejectment passed by the civil court.

---<--
sos SUPRE11E COURT REPORTS [1981] 2 S.6.11..

A Respondent No. 3 appears to have made a futile attempt to make
confusion worse confounded by representing that the premises were
not vacant when he knew full well that the delivery of possession was
given to the landlord in bis presence and he had later filed a suit for
setting aside the decree which was dismissed. Thus, it appears from
the record that respondent No. 3, Harbans Singh, never came in
B
possession of the premises in question but tried to defeat or delay !be
decree passed by the civil court in favonr of the appellant by various
subterfuges and pretexts. However, as the appellate authority bad
accepted the appeal filed by respondent No. 3 , the appellants were
compelled to take the matter to the High Court by way of a writ
petition. The High Court, however, dismissed the writ petition }
c
mainly on the ground that before notifying the vacancy, the
Eviction Officer did not bear respondent No. 3 . The High Court does
not appear to have considered the history of the case and the various
proceedings leading to the eviction of Keshar Singh and to the fact
that respondent No. 3 had absolutely no claim or right to the property.
At no stage could Harbans Singh prove that either be was a sub-tenant
D
or a partner of Keshar Singh. His attempt to get !he decree, passed
in favour of the appellant, set aside failed.

In these circum.stances, therefore, there was no question of his
beiug heard by the Eviction Officer after !he possession was delivered
to the landlord and the vacancy was notified. If at all, such a hearing
E would have been futile and would have ultimately led to the same
result. In these circumstances, we are clearly of the op;nion !hat
the High Court erred in law in dismissing the writ petition and up
holding the judgment of the District-Judge remanding the matter to
the Eviction Officer. We, therefore, allow this appeal, set aside the
judgment of the High Court as also that of the District Judge ( the
];'
appellate authority) and restore the order of the Eviction Officer
releasing the accommodation in favour of the appellant. The appel
land will be entitled to costs in this Court quantified at Rs. 2,000 1
(Rupees two thousand m:;� ) .

11'.B.R. Appeal allowed.

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