9911796707
TMI Blog2000 (3) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... 59, filed an application for permission under Section 3 of the old Act for filing a suit for the eviction of Smt. Sushila Saigal. The application was allowed by the Rent Control and Eviction Officer by his order dated 23.4.1960 against which a revision was filed by Smt. Sushila Saigal before the Commissioner which was dismissed but a further revision filed by her before the State Government under Section 7-F of the old Act was allowed on 27th of June, 1961 and the application of Dr. Kalindi Mitter for permission under Section 3 of the old Act to file a suit for eviction was rejected. It appears that on the basis of the permission granted by the Rent Control and Eviction Officer on 23.4.1960, Dr. Kalindi Mitter instituted regular suit No.1664 of 1961 which came to be disposed of by the IInd Addl. Munsif, Kanpur, by judgment dated 24.11.1965. In that suit, several issues were framed but three relevant issues are reproduced below:- 1. Whether the State Government quashed the order of permission in favour of the plaintiff on 27.06.1961 under Section 7-F of the U.P. Act III of 1947? 2. Whether the operation of the order of the State Government dated 12.10.1961 has been stayed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely dismissed by the Second Addl. District Judge, Kanpur, on 22.9.1973. This order was challenged in Writ Petition No. 6609 of 1973 in the Allahabad High Court in which an interim order was passed by the High Court on 11th of October, 1973. During the pendency of the Writ Petition, an application was filed on behalf of Dr. Kalindi Mitter that the interim order dated 11th of October, 1973 be vacated on the ground that Dr. Kalindi Mitter did not want to proceed with Regular Suit No.654 of 1969 already instituted by her in the court of Addl. Judge, Small Causes, Kanpur. The High Court, by its order dated 27.3.1974, directed the Addl. Judge, Small Causes, to consider the application of Dr. Kalindi Mitter for withdrawal of the suit and pass appropriate orders thereon. The interim order dated 10.11.1973 was, therefore, vacated. The application for withdrawal of suit, filed by Dr. Kalindi Mitter, was ultimately allowed by the Addl.Judge, Small Causes, Kanpur, by his order dated 24.4.1974 and the suit was allowed to be withdrawn. During the course of the order, the learned Addl. Judge, Small Causes Court observed as under:- I have heard the learned counsel for the parties and have peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r proceeding, on the basis of that permission could have been legally instituted for the eviction of the appellants. It is contended that Section 43(2)(rr) is a mode prescribed under the new Act for execution of the permission already granted under Section 3 of the old Act. But before the permission is put to execution under Section 43, it has to be shown that the permission was subsisting on the date on which an application is filed for its execution under Section 43(2)(rr). It is also contended that before the permission granted under the old Act could be put to execution under Section 43(2)(rr), it had to be shown to have been obtained on any of the grounds specified in Sub-section (1) or Sub- section (2) of Section 21 of the new Act and if it is shown that such a permission, as was granted under the old Act, could not have been granted under Section 21 of the new Act, it could not be executed under Section 43(2)(rr). Mr. G.L. Sanghi, learned Senior Counsel appearing on behalf of the respondents, has, on the other hand, contended that the permission under Section 3 of the old Act was granted in favour of Dr. Kalindi Mitter by the Rent Control and Eviction Officer on being satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion -- No decree for the eviction of a tenant from any accommodation passed before the date of commencement of this Act, shall in so far as it relates to the eviction of such tenant, be executed against him as long as this Act remains in force, except for any of the grounds mentioned in Section 3: Provided that the tenant agrees to pay to the landlord reasonable annual rent or the rent payable by him before the passing of the decree, whichever is higher. So also, in regard to pending suits for eviction, it was provided in Section 15 (old Act) as under : 15. Pending suits for eviction -- In all suits for eviction of a tenant from any accommodation pending on the date of the commencement of this Act, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 3. It was provided in Section 14 that a decree for eviction already passed against the tenant would not be executed so long as the old Act remained in force. But there was an exception made in favour of a decree passed on any of the grounds mentioned in Section 3. That is to say, if the decree was passed on the ground that the tenant was in arrears of rent for more than 3 months which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 7-F of the old Act. If the permission was granted either by the District Magistrate or the Commissioner or, for that matter, by the State Govt. under Section 7-F of the old Act, the landlord, on the basis of that permission, could institute a suit for eviction of the tenant. The new Act came into force with effect from 15.7.1972. Section 1 provides for the extent, application and commencement of the Act. Sub-section (4) of Section 1 provides that the Act shall come into force from the date, as the State Govt. may, by notification in the Gazette, appoint. Sub-section (2) provides for the exemption of certain buildings from the operation of the Act. Chapter III deals with Regulation of letting . Section 11 contained in that chapter prohibits the landlord from letting out any building to any person, except in pursuance of an allotment order issued under Section 16. Section 12 provides for deemed vacancy of building in certain cases. Section 13 provides that where a landlord or the tenant has ceased to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf otherwise than under an order of allotment or release under Section 16. Section 14 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust; (b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction: Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years: Provided further that if the application under (a) is made in respect of any building let out exclusively for non-residential purposes, the prescribed authority while making the order of eviction shall, after c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Amendment Act, 1972 (U.P. Act 37 of 1972) may be continued and concluded in accordance with the old Act which shall for that purpose, be deemed to continue to be in force. (rr) Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in sub-section (1) or sub-section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act, whether or not a suit for the eviction of the tenant has been instituted, the landlord may apply to the prescribed authority for his eviction under Section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under Section 22 : Provided that no application under this clause shall be maintainable on the basis of a permission granted under Section 3 of the old Act, where such permission became final more than three years before the commencement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, it would not be necessary for the Prescribed Authority to be satisfied afresh as to the existence of the grounds for such eviction. The two Provisos appended to this Clause deal with the period of limitation within which an application could be filed for the eviction of the tenant, with which we are not concerned. But there are other important words which cannot be ignored and they provide the key to the interpretation of this Clause. The significant words are contained in the first part of this Clause. They are WHERE ANY PERMISSION REFERRED TO IN SECTION 3 OF THE OLD ACT HAS BEEN OBTAINED ON ANY GROUND SPECIFIED IN SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 21. The other significant words are contained in the last part of the Clause which are : AND IT SHALL NOT BE NECESSARY FOR THE PRESCRIBED AUTHORITY TO SATISFY ITSELF AFRESH AS TO THE EXISTENCE OF ANY GROUND AS AFORESAID. Considered in the light of these significant words, the requirements for the applicability of Clause (rr) would be :- (a) There should have been a permission obtained under Section 3 of the old Act. (b) Permission should have been obtained on any ground specified in Sub-section (1) or Sub- sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to the coming into force of the old Act, it would be executable under that Act and the tenant would be evicted from the accommodation in his occupation. These Clauses, namely, Clause (r) and Clause (rr) thus operate in two different fields. So interpreted and understood, there will be no conflict in the two Clauses. Let us now examine the facts of the present case to see whether an application under Clause (rr) was maintainable against the appellants and whether such an application on the basis of the permission already granted under the old Act could have been executed under Clause (rr). Under Sub-section (1) of Section 21, a landlord can apply for eviction of a tenant on the ground that the building was bona fide 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 either for residential purposes or for purposes of any profession, trade or calling or on the ground that the building which was in a dilapidated condition was required for purposes of demolition and new construction. The second Proviso to Sub-section (2) however provides that AN APPLICATION UNDER CLAUSE (a) SHALL ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
