Geeta Gupta vs Ramesh Chandra Dwivedi

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4750 OF 2011

GEETA GUPTA …… APPELLANT

v.

RAMESH CHANDRA DWIVEDI & ORS. …… RESPONDENTS

J U D G M E N T

ABHAY S. OKA, J.

1. By this appeal, the appellant who was the writ petitioner

before the High Court at Allahabad has taken an exception to

the Judgment and Order dated 9th October, 2009 passed by the

learned Single Judge of Allahabad High Court.

2. The appellant is claiming to be the owner of premises No.

74/13, Collectorganj, Kanpur Nagar, Uttar Pradesh. The

appellant acquired the said premises by a sale deed dated 13 th Signature Not Verified

March, 1994 executed by power of attorney holder on behalf of Digitally signed by NEETU KHAJURIA Date: 2021.09.20 18:03:09 IST Reason:

the original owners Shri Vishnu Swaroop Mishra and Shri Gopal 2

Swaroop Mishra. The petitioner claimed that the physical

possession of the premises subject matter of the sale deed was

handed over to her by her vendors which includes two Gaddis,

two godowns and a tin shed (collectively referred as “the

disputed premises”) which was earlier given by the appellant’s

vendor to one Dhruv Narayan Tripathi by way of tenancy.

3. An application was made by the second respondent for

allotment of the disputed premises by invoking Section 16 of

the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent

and Eviction) Act, 1972 (for short the “the said Act”). The

application was made on the premise that the disputed

premises have fallen vacant in accordance with sub-section (4)

of Section 12 of the said Act. On the basis of the said

application, in accordance with Rule 8(2) of the Uttar Pradesh

Urban Buildings (Regulation of Letting, Rent and Eviction) Rules,

1972, an inspection report dated 20 th May 1995 was submitted

to the District Magistrate. The report recorded that the first

respondent-Ramesh Chandra Dwivedi was carrying on business

in the disputed premises in the name and style of M/s Ramesh

Chandra Pravesh Kumar. It was stated in the report that first

respondent informed that he was inducted as a tenant by Shri 3

Dhruv Narayan Tripathi in the disputed premises in November

1975 at monthly rent of Rs.500/-. The District Magistrate (Addl.

City Magistrate-VI) while exercising the powers under the said

Act held that on the basis of the agreement dated 15 th

November, 1975, the first respondent was inducted as a tenant

by the said Dhruv Narayan Tripathi acting as a power of

attorney holder and manager of the owners. He held that the

original owners never objected to the action of the said Dhruv

Narayan Tripathi. The Addl. City Magistrate held that the first

respondent was in continuous possession as a tenant on the

basis of the said agreement dated 15 th November, 1975 and

therefore, he has become a tenant of the disputed premises.

Hence, it was held that the disputed premises were not vacant

within the meaning of sub-section (4) of Section 12 of the said

Act.

4. A writ petition was preferred by the petitioner against the

said Judgment and Order of the Addl. City Magistrate, which

was rejected by the impugned Judgment and Order dated 15th

November, 1975.

5. The learned counsel appearing for the appellant in support

of the appeal submitted that the said Dhruv Narayan Tripathi 4

had no authority to induct the first respondent as a tenant on

behalf of the predecessors-in-title of the petitioner. She

submitted that the said Dhruv Narayan Tripathi was the tenant

inducted by the predecessors-in-title of the appellant. She

submitted that on 5th July, 1976, the disputed premises were

vacant. She submitted that the petitioner purchased the

property in the year 1994 and from that day, she has not

received any income from the disputed premises. She

submitted that the writ petition before the Allahabad High Court

was of the year 1997 which was decided on 09 th October, 2009

and that the present appeal is of the year 2011. Thus, the

submission is that during the last 27 years, the appellant has

not received any benefit from the disputed premises.

6. The learned counsel appearing for the appellant placed

reliance on the decisions of the Apex Court in the case of Achal

Misra v. Rama Shanker Singh & Ors.,1 Ram Murti Devi v.

Pushpa Devi & Ors.2 and Harish Tandon v. Addl. District

Magistrate, Allahabad, U.P. & Ors.3

11(2005) 5 SCC 531 2 (2017) 15 SCC 230 3 (1995) 1 SCC 537 2 3 5

7. The learned counsel appearing for the first respondent

invited our attention to the findings recorded by the Addl. City

Magistrate holding that the first respondent has been in

possession of the disputed premises since 1975 and is paying

rent even prior to 5th July, 1976. He invited our attention to the

deposit of the rent made by the first respondent in the Court of

Civil Judge, (Junior Division) Kanpur Nagar by taking recourse to

sub-section (1) of Section 30 of the said Act. He submitted that

as per his instructions, the first respondent has been regularly

depositing the rent in the said proceedings and even if some

part of the rent is not deposited, the first respondent shall do

so.

8. The learned counsel appearing for the appellant by way of

rejoinder to the submissions made by the learned counsel

appearing for the first respondent urged that it will be unjust to

drive the appellant to file a suit for eviction 27 years after she

purchased the disputed premises.

9. We have carefully considered the submissions. We have

perused the material on record, as well as the provisions of the

said Act. Sub-section (1) of Section 12 incorporates the

concept of deemed vacancy of the building in certain cases. 6

Under clause (b) of sub-section (1) of Section 12, a tenant of a

building shall be deemed to have ceased to occupy the building

or a part thereof if he has allowed it to be occupied by any

person who is not a member of his family. Sub-section (2) of

Section 12 lays down that in case of non-residential buildings,

where a tenant carrying on business in the building admits a

person who is not a member of his family as a partner, the

tenant shall be deemed to have ceased to occupy the building.

Sub-Section (4) of Section 12 of the said Act provides that any

building or a part of which landlord or tenant has ceased to

occupy within the meaning of sub-sections (1) or (2) of Section

12 shall be deemed to be vacant.

10. Under clause (a) of sub-section (1) of Section 16 of the

said Act, the District Magistrate is empowered to require any

landlord to let any building which has fallen vacant to any

person specified in the order.

11. Section 14 of the said Act is material which is thus:

“14. Regularisation or occupation of existing tenants.-[Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2- A) or a tenant in occupation of a building with the consent of the landlord 7

immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building].” Under Section 14, a tenant in occupation of a building with the

consent of the landlord immediately before the commencement

of the U.P. Urban Buildings (Regulation of Letting, Rent and

Eviction) (Amendment Act), 1976 shall be deemed to an

authorised tenant. The date of commencement of the

Amendment Act is 5th July, 1976.

12. The first respondent relied upon the agreement dated 15 th

November, 1975 purportedly executed by the said Dhruv

Narayan Tripathi claiming to be the power of attorney holder

and manager of the original owners. The first respondent is the

second party to the said Agreement on whom tenancy in

respect of the disputed premises was conferred. The finding of

fact recorded by the Addl. City Magistrate is that the original

owners never denied that the said Dhruv Narayan Tripathi was

their attorney or manager and that the original owners neither

served any notice nor filed a suit for eviction. In the counter, 8

the first respondent has relied upon the said agreement at

Annexure R-4 in paragraph 5. In the rejoinder, the appellant

alleged that the said document was fabricated. However, the

petitioner has not produced on record anything to show that

from 1975 to 1994, the original owners raised any objection to

the induction of the first respondent as a tenant of the disputed

premises in the year 1975. Thus, the first respondent was

inducted in possession as a tenant prior to 5 th July, 1976. The

finding recorded by the Addl. City Magistrate is that to the

presence of the first respondent, the predecessors-in-title, of

the appellant had never raised any objection right from the

year 1975. Therefore, the Addl. City Magistrate concluded that

in absence of the evidence of predecessors-in-title of the

appellant, it is very difficult to accept that right from the year

1975, the first respondent continued to be in possession

without the consent of the original owners. There is nothing

wrong about this inference drawn by the Addl. Magistrate that

the first respondent was inducted with the consent of the

predecessors-in-title of the appellant. We find no error in the

said view taken by the Addl. City Magistrate and confirmed by

the High Court.

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13. As the first respondent was a tenant in possession on 5th

July, 1976 with the consent of the original owners, he shall be

deemed to be a tenant by virtue of Section 14 of the said Act.

14. Therefore, there is no reason to find fault with the Order of

the Addl. City Magistrate. By virtue of Section 14, the first

respondent gets the protection as a tenant under the said Act.

Therefore, if the appellant wants the first respondent to be

evicted, she will have to take recourse to section 20 of the said

Act. Depending upon the circumstances, she has also an option

to take recourse to section 21 of the said Act.

15. We have carefully perused the decisions relied upon by

the appellant. The decision in the case of Achal Misra (supra)

holds that an order notifying vacancy under section 12 of the

said Act can be challenged by filing a writ petition or it can be

challenged after an order of allotment is made by adopting a

remedy under section 18 of the said Act. Even the decision in

the case of Harish Tandon (supra) has no bearing on the

controversy in this appeal. Lastly, the decision in the case of

Ram Murti Devi (supra) does not deal with the issue involved.

It deals with the issue of unlawful subletting. None of these

decisions have any application to the facts of this case. 10

16. Though there is no merit in the appeal, it will be

necessary to ensure that the first respondent regularly pays

rent in respect of the disputed premises. In the objections filed

by the first respondent, he has specifically taken a stand that

the first respondent has filed Misc. Case No. 284/70/04 in the

Court of Civil Judge, (Junior Division) at Kanpur Nagar under

sub-section (1) of Section 30 of the said Act. The learned

counsel appearing for first respondent claimed that the entire

amount of rent has been deposited in the said case.

17. We direct the first respondent to deposit all the arrears of

rent, if any, up to 31st August, 2021 within a period of six weeks

from today and thereafter, continue to regularly deposit the

rent in the aforesaid proceedings. He can also pay the amount

to the petitioner. The petitioner can always apply for withdrawal

of the rent amount in accordance with sub-section (3) of section

30 of the said Act. If eviction proceedings are filed by the

petitioner, considering the case of the petitioner that she is

deprived of the benefit of the disputed premises right from year

1994, the concerned authority or the Court, as the case may

be, shall give priority to the disposal of the eviction

proceedings.

11

18. Subject to what is directed above, there is no merit in the

appeal and the same is accordingly dismissed.

…………..…………………J (AJAY RASTOGI)

…………..…………………J (ABHAY S. OKA) New Delhi;

September 20, 2021.