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MC Mitter v. The District Judge, Kanpur and others - WRIT - C No. 10793 of 1981  RD-AH 26 (27 May 1999)
1999(3) AWC 2127
CIVIL MISC. WRIT PETITION NO. 10793 OF 1981
M.C. Mitter and others .................Petitioners
The District Judge, Kanpur and others ..Respondents
HON'BLE YATIDNRA SINGH, J.
1. This was a simple case. Difficulties have arisen due to the passage of time. It was more than thirty years ago that Dr.Kalindi Mittal, (the landlady for short) filed an application. It was to obtain permission under section 3 of U.P. Temporary (Control of Rent and Eviction) Act, 1947 (the old Act for short) to file a suit to evict the tenant on the ground of her personal need. With the passage of time new equity, new laws have come up, complicating the case. These are the vagaries of ''time consuming litigation'; leaving one in doubt, which side Themis1 is. But then I have to do my bit, take a decision and side with one on whose side Themis is. In short it is a landlords' writ petition against the orders dated 21.05.1981 and 6.5.1980 rejecting their application under section 21(1) read with section 43 (rr) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act for short).
2. Dr. Kalandi Mittal (the landlady) was the owner of the building situate at 7/152 Swaroop Nagar, Kanpur. She was doctor by profession. Smt.Sushila Saigahl, respondent no. 3 is the tenant. The landlords wanted to open a clinic in the premise in dispute. She filed an application under the old Act in late 1950's for obtaining permission to file a suit. The District Magistrate dismissed this application and this order was upheld. Subsequently, she filed second application in March 1966. The District Magistrate ultimately granted permission to file suit on 9.12.1968. The tenant filed a revision against this order under the old Act. During pendency of the revision the Act came into force. The revision filed by the tenant was transferred to District Judge under section 43(2)(m) of the Act. It was dismissed on 22.09.1973. The tenant filed a writ petition No. 6609 of 1973 Mrs. K.L. Saigal v.2nd ADJ Kanpur against the same. It was also dismissed on 12.03.1976. Few paragraphs of this judgement will explain this part of the case. The court held:
''The Addl. District Judge rightly pointed out that the respondent no.4 was a lady doctor [the landlady] in Gynaecology and, therefore, one can take note of the fact that a large number of patients must have been visiting her at odd hours and as her nursing home at present is situate at a distance of 3 miles from her residence, it is not only most inconvenient to respondent no. 4, but her patients must have been put to substantial discomfort and trouble. This is really a genuine ground, which was rightly taken into account by the Addl. District Judge as well as the prescribed authority for finding that her need was genuine...
On the question of greater hardship, the learned District Judge was required to consider whether the petitioner [the tenant] had an alternative accommodation available for her residence. Accordingly he rightly found that as the petitioner's [the tenant] husband has his own house, she would not suffer in case she was evicted from the premises.
Another finding which was given by the learned Addl. District Judge on the question of greater hardship was that the husband of the petitioner is a rich man and that he could afford to take another house at a higher rent. Counsel for the petitioner attacked this finding of the learned Addl. District Judge pointing out that an application made by a landlord against a tenant cannot be allowed on this ground as this will frustrate the very object of the old Act for which it was enacted. Be that as it may, it appears to me that what the appellate court intended to convey was that since litigations are going on between the petitioner and respondent no. 3 for the last several years and as the petitioner does not have any financial, difficulty, she could solve her problem of accommodation by taking another.'
3. The landlady after dismissal of the writ petition filed an application on 29.3.1976 under section 21 read with section 43(2)(rr) of the Act for the eviction of the tenant. She died during pendency of this application and petitioners nos. 1 to 3 are her heirs. They sold off the property to petitioner nos. 4 to 9. They now have become landlords of the premises in dispute. The Prescribed Authority dismissed this application on 06.05.1988. The appellate court dismissed the appeal on 21.05.1981. Hence the present writ petition.
SUBMISSIONS - POINT FOR DETERMINATION
4. The counsel for the parties agree that no appeal lay against the order under section 43(2)(rr) of the Act and the appeal was filed under the mistaken advice and the validity of the order of Prescribed Authority may be seen. In any case appellate court has mere approved the order. The point for determination is that whether the reasons mentioned by the prescribed authority in its order dated 6.5.1980 are sustainable or not? The prescribed authority has given following three reasons for dismissing the application.
The building is a residential accommodation. The permission was sought to open a clinic, a business purpose. The application under section 43(2)(rr) of the Act can not be allowed in view of the section 21(1) 3rd proviso (ii) of the Act.
The need of the landlady was personal. It does not subsist after her death.
The premises have been sold. There is no bonafide need of the transferees. They have not even set up their need.
RESIDENTIAL BUILDING FOR BUSINESS PURPOSE
5. It is not disputed by the parties that the building in dispute is residential in nature and the permission sought by the landlady was for business purpose. There was no prohibition under the old Act for granting such permission. But under the new Act no such application can be entertained. It is prohibited by the section 21(1) 3rd proviso (ii) of the Act.2 Does it mean is that the valid permission granted under section 3 of the old Act becomes invalid on the enforcement of the Act it can not be enforced?
6. Section 43(2)(rr)3 states that if the landlord has obtained permission under section 3 of the old Act on the ground mentioned under section 21(1) and (2) of the Act, then the Prescribed Authority shall order the eviction of the tenant on the application of the tenant. It is further clarified that ''it shall not necessary' for the Prescribed Authority to satisfy itself afresh as to the existence of the grounds mentioned in section 21. A full bench of our court4 has interpreted ''it shall not be necessary' to mean, ''it shall not be open'. In other words, the prescribed Authority has no jurisdiction to reopen the question and satisfy itself again. The order granting permission under section 3 of the old Act is final and conclusive. His jurisdiction is only to see if the permission was obtained on the grounds specified under Section 21(1) and (2) of the Act or not. If he is so satisfied, then he has no option but to order the eviction of the tenant ''from the building in his tenancy. The purpose of insertion of section 43(2)(rr) in the Act was that the landlord may get speedier remedy in case he has already obtained the permission under the old Act. It is a kind of execution proceeding provided for the permission granted on the ground similar to section 21(1) and (2) of the Act.
7. Here we are not concerned with section 21(2) of the Act but with section 21(1) of the Act. Let's see what are the grounds mentioned in section 21(1) of the Act. There are only two grounds in Section 21(1) of the Act. One if the building is bonafide 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. The second, if that the building is in a dilapidated condition and is required for purposes of demolition and new construction. We are concerned with the first ground. The landlady had obtained permission for the release of the building on the ground that it is bonafide required by her. This has been allowed. The landlady was granted permission under the old Act on the ground mentioned under section 21(1) of the Act. It is not relevant that in case she files a similar application now it can not be entertained/allowed. Section 21(1) 3rd proviso (ii) of the Act bars the entertainment of such an application now. It neither invalidates a valid permission already granted nor should it bar a remedy; be it a suit or an application under section 43(1)(rr) of the Act.
8. The landlady after obtaining the permission could have filed a suit for eviction of the tenant. The counsel disagree if such a suit can now be filed. But counsel for the tenant is right. No suit can now be filed. Section 20 of the Act will bar it; though a suit filed earlier will continue under Section 43(2)(r) and (s) 5 of the Act. These subsections clarify that any suit for eviction filed after obtaining permission under section 3 of the old Act may be continued and concluded in accordance with old Act. There is no justification to discriminate between the two landlords. Ones who have filed a suit: The others who have filed an application under section 43(2)(rr) of the Act. Section 43(2)(rr) offers additional remedy in cases where suit was filed earlier and the only remedy where no such suit was filed6. Both classes fall in the same class. Such interpretation should be given which will treat them similarly. If the landlord filing the suits have remedy then so should the landlords filing application under section 43(2)(rr) of the Act. The reason given by the courts below that the permission is not on the ground mention in section 21(1) of the Act in view of Section 21(1) 3rd proviso (ii) of the Act is not correct.
9. Dr. R.G.Padia, counsel for the tenant has cited a Division Bench decision in Dr. Bashir Uddin v. District Judge7 to show that such application could not be allowed. This case is distinguishable. In this case an application was filed under section 3 of the old Act for setting up a dental clinic in a residential portion. But before the permission could be granted the Act came into force and the application of the landlord was transferred to the Prescribed Authority under section 43(2)(a) of the Act8. It is clear from section 43(2)(a) of the Act that such application is deemed to be an application under section 21 of the Act and is to be disposed of in accordance with the provision of this Act and not the old Act. It is for this reason that the court did not allow the application. It could not be allowed according to the provision of the Act. The words ''in accordance with provisions of the Act' in the section 43(2)(a) of the Act are missing in section 43(2)(rr) of the Act which talks only about the ground specified in section 21(1) of the Act. Section 43(2)(a) of the Act says that such an application will be allowed only if such application could have been allowed in accordance with the provision of this Act. In absence of these words the intention is clear. The permission granted under the old Act is to be treated as final and can not be questioned.
NEED OF THE HEIRS - TRANSFEREES
10. The second and third reasons given by the Prescribed Authority are similar. The second reason given by the Prescribed Authority is that the bonafide need of the landlady was personal; her heirs do not want to open a clinic at Kanpur; they do not reside there. The third reason is that the transferee from the heirs; what to say of the need,ndlady under section 3 of the old Act has already been upheld by this Court. It was in pursuance of that she had filed the application under section 43(2)(rr) of the Act. It is mentioned under section 43(2)(rr) of the Act that ''it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid.' This has been subject matter of interpretation. A full bench decision of our court in Banshi lal Sahu v. Prescribed Authority Allahabad9 has interpreted ''it shall not be necessary to mean it shall not be open. In other words, the prescribed Authority has no jurisdiction to reopen the question and satisfy itself afresh that the grounds specified under sub-section (1) or sub-section (2) of Section 21 do exist. In this respect, the order granting permission under Section 3 of the old Act is final and conclusive. Its jurisdiction is only to see that the grounds on which the permission was obtained answer the description of the grounds specified under sub-section (1) or sub-section (2). If it is so satisfied, then it has no option but to order eviction of the tenant from the building under tenancy.' It was not open to prescribed authority to again go into the question of the need of the heirs or of the transferees. This reason given by the court below rejecting the application is also not correct.
11. The reasons given by the court below are not correct. The writ petition is allowed with costs. The orders of the courts below dated 23.5.81 and 6.5.80 are quashed. The matter is sent back to the prescribed authority to proceed in light of the observations. However, the tenants may not be evicted from the building in dispute for a period of six months from today provided they file an undertaking in the form of an affidavit within two months before the prescribed authority concerned that they will vacate the premises within six months and pay the rent for the period of their occupation.
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