2002 Supreme(SC) 579

2002(3) Supreme 632
SUPREME COURT OF INDIA
(From Allahabad High Court)
D.P. Mohapatra and Brijesh Kumar, JJ.
Ram Narayan Sharma -Appellant
versus
Shakuntala Gaur -Respondent
Civil Appeal No. 3159 of 2002
(Arising out of SLP (C) No. 5179 of 2000)
Decided on 29-4-2002
Counsel for the Parties :
For the Appellant : Aman Hingorani, Ms. Priya Hingorani, Advocates for M/s. Hingorani and Associates, Advocates.
For the Respondent : Parag P. Tripathi, Sr. Advocate, A.K. Yadav, Ms. Sangita Garg, K.V. Mohan, Advocates.

VERY IMPORTANT POINT
There is no reason with Revisional Court or High Court to treat the appellant as prospective allottee. In fact he was an allottee in possession. The bona fide requirement under Section 6(1)(b) of U.P. Urban Buildings (RLRXE) Act, 1972 of respondent-landlady could not be entertained in an infructuous pending revision proceeding by a heir of former landlord. The order passed in infructuous proceedings is inconsequential and ineffective. Respondent could not file suit for eviction on bona fide need under Section 21(1)(a) of Act due to bar of 3 years of purchasing the property under proviso to Section 21. She could not do something indirectly by resorting to Section 6(1)(b) which she could not do directly under Section 21(1)(a) r/w proviso to Act.

Headnote:U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972-Sections 16(1)(a), 16(1)(b), 18, 21(1)(a) r/w proviso-Allotment and release of vacant building-Revision against allotment-Eviction of tenant on bona fide need-House in Muzaffarnagar (U.P.)-1st and 2nd floor in occupation of respondent as tenant-Gound floor falling vacant-Appellant applying for allotment under Section 16(1)(a)-Than landlord dying-His two sons brought on record-No objection made despite service-Allotment made to appellant and he also took possession-One of the two heirs brought on record challenging allotment in revision under Section 18-Pending revision-Two sons of deceased landlord became owner of building by arbitration award -They sold it to respondent-Respondent got impleaded to pending revision-District Judge allowed the revision-Cancelled allotment and remanded case to RC and EO-Respondent applied under Section 16(1)(b) for release in her favour on bona fide need-Allowed-Writ against dismissed-Appeal to Supreme Court by appellant-Whether appellant was prospective allottee or already an allottee in possession? (the later)-Whether respondent was entitled to release under Section 16(1)(b)? (No)-What was proper remedy for respondent? (Eviction petition under Section 21(1)(a) r/w proviso after three years of purchase)-High Court s and revision Court s holding that appellant was prospective allottee and respondent s application under Section 6(1)(b) was entertainable are perverse-Appeal allowed-RC and EO s order restored with certain observations.

       Held : So far the legal position is concerned, we feel that there is hardly any doubt that a prospective allottee shall have no right to oppose an application for release moved by the landlord. The need of the landlord is bona fide or not is a matter for satisfaction of the District Magistrate and on being so satisfied, an order of release can be passed. The Release application is to be disposed of first before passing an order on the application for allotment. (Para 12)

       In the present case we find that the position is very peculiar which has not been properly appreciated in correct perspective. The position that emerges is that respondent was not the landlady when the accommodation was allotted to the appellant in 1990 nor on March 20, 1994 when Hari Mohan Bhatnagar and Mohan Bhatnagar became landlords thus on Ravi Mohan Bhatnagar s interest in property as an heir of Bankey Lal coming to an end, the revision No. 19 of 1990 filed by Ravi Mohan Bhatnagar even if it was pending, it was an inconsequential and infructuous petition having no life so as to be prosecuted by him. The respondent had purchased the house from Hari Mohan and Mohan Bhatnagar and not from Ravi Mohan Bhatnagar who obviously was left with no right or interest in the property. She moved an application for release thereafter on 15.2.96. It may be particularly noted that the order of allotment passed on 3.8.1990 was in operation on March 20, 1994 when Hari Mohan Bhatnagar and Mohan Bhatnagar became owner of the accommodation. Between Bankey Lal and his heirs including Ravi Mohan Bhatnagar and the landlady-Respondent there stood her vendors having ownership rights of their own which they transferred to her. She had no connection with Bankey Lal or his heirs so as to be entitled for moving an application under Section 16 (1)(b) for release of accommodation already allotted to the appellant before her predecessor in interest had acquired rights in property exclusively. The appellant therefore could not be treated as a prospective allottee nor the respondent as owner subsequent to allotment could take up Revision filed by Ravi Mohan Bhatnagar whose interest as an heir of Bankey Lal had ceased on the property vesting in Hari Mohan and Mohan Bhatnagar by virtue of arbitration. (Para 13)

       In such a situation as indicated above the landlady namely the respondent in case had any bona fide requirement of the accommodation could only move for eviction of the appellant under the provisions of Section 21 of the Act. (Para 14)

       Perhaps due to the hurdle in the way of the landlady for moving an application for eviction under Section 21(1)(a) for period of three years by virtue of proviso, she tried to find a short cut to be impleaded as one of the revisionists in RCA No. 19 of 1990 in which the Respondent Ravi Mohan Bhatnagar was not left with any kind of interest nor even semblance of any right to challenge the allotment. In the facts and circumstances indicated above the Revisional Court and the High Court both erred in considering the appellant as a "prospective allottee". His position was more akin to an allottee in possession. The only course open to the Respondent was to move under Section 21(1)(a) of the Act for his eviction. The release application under Section 16(1)(b) of the Act moved by the Respondent was misconceived. The order passed on the infructuous proceedings namely Revision No.19/90 would be inconsequential and shall not enure any benefit either to Ravi Mohan Bhatnagar who had filed the revision nor to the respondent who moved application for impleadment as a revisionist. Initially also Ravi Mohan Bhatnagar had no justifiable reason to file the revision once having failed to file objections to the allotment application in the year 1990 more particularly on the ground that notice was not served upon some other heirs of late Bankey Lal. Whatever right, if at all he had to file the revision as one of the heirs of Bankey Lal, he had lost the same after the property came to be owned by Hari Mohan Bhatnagar and Mohan Bhatnagar on March 20, 1994 by virtue of arbitration award in their favour. So far respondent is concerned, her impleadment as one of the revisionists rightly or wrongly would also be inconsequential since she had purchased the property from Hari Mohan and Mohan Bhatnagar as the owners and predecessor in interest in the property and not from heirs of late Bankey Lal. It is thus clear that there is no reason to treat the appellant as prospective allottee. The bona fide requirement of the respondent could not be considered in the infructuous proceedings of the Revision 19/1990. The order passed in infructuous proceedings is inconsequential and ineffective. She could not be permitted to do something indirectly which was impermissible directly, in view of proviso to sub-section (1) of Section 21 of the Act namely, she could not get the premises vacated on the ground of her bona fide requirement within three years of purchasing the property. In the result the appeal is allowed and the order of the High Court as well as of the revisional court are set aside and that of the Rent Control & Eviction Officer is restored. In case the appellant has been dispossessed from the premises in pursuance of the orders passed by the revisional court or the High Court, the Rent Control and Eviction Officer will take steps to restore possession of the premises to him. The appellant on getting possession of the premises will pay to the respondent-landlady arrears of rent for the period he was in occupation of the premises, within three months. It will however be open to the respondent if so advised to move any appropriate application as may be permissible under the law for eviction of appellant. There shall, however, be no order as to costs. (Paras 15, 16, 17 and 18)