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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3763 OF 2007   

 Anil Kalra         … Appellant

Versus

 J.D. Pandey and others           …Respondents

WITH

CIVIL APPEAL NOS. 5688-89 OF 2007

J U D G M E N T

Prafulla C. Pant, J.

The dispute in the present matter pertains to a hundred

year old building, which is covered under Uttar Pradesh Urban

Buildings (Regulation of Letting, Rent and Eviction) Act, 1972

(for short UP Act 13 of 1972”).  Section 13 of said Act placed

restriction on landlord, tenant and also on any other person

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from occupying  the  building  in  any  capacity,  without  there

being an order  of  release  in  favour  of  landlord,  or  order  of

allotment in case of tenant.  The building in question is known

as 7, Dalibagh situated in Lucknow.  Originally said property

was  owned  by  a  Barrister  Mohammad  Wasim  and  on  his

migration to Pakistan, vested with the Custodian of Evacuee

Property,  and  thereafter  settled  in  favour  of  Rai  Bahadur

Lakshman  Das,  a  displaced  person.   But  it  appears  that

physical possession could not be delivered to the allottee as

the  building  was  in  occupation  of  several  tenants.   It  is

pleaded that the appellant Anil Kalra, along with his brother,

sister  and  two  others,  has  stepped  into  the  shoes  of  the

landlords through Dr. Mulk Raj, Dwarika Das and Banarasi

Das, heirs of Rai Bahadur Lakshman Das by way of sale deeds

executed in the years 1982-1983.  It is alleged by the appellant

that  after  the  tenants  vacated  the  premises,  an application

was moved under Section 16(1)(b)  of UP Act 13 of 1972 for

release  of  the  building  for  demolition  and  reconstruction

before the Competent Authority (authorized Additional District

Magistrate).

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2. The Competent Authority called for a report from Rent

Control  Inspector,  who  inspected  the  spot  and  reported  on

14.11.1984 that the Office of Cane Commissioner (tenant on

the part of the building) was in the midst of vacating the same.

He  further  reported  that  as  per  information  received,

Respondent No.  2 Mrigendra Pandey and Respondent No.  3

Nripendra Pandey (both sons of Dr. J.D. Pandey), under the

banner of M/s. Swargiya Sanjay Gandhi Sahkari Avas Samiti

Ltd,,  after  breaking  open  the  locks,  had  unauthorizedly

occupied the building.  It  was further reported by the Rent

Control  Inspector  that  the  Deputy  Cane  Commissioner  had

apprehended that the part vacated by him was also likely to be

occupied by said society, and a First Information Report was

lodged to that effect and the District Magistrate, Lucknow, was

also informed about it.  With the above information, the Rent

Control  Inspector  recommended  that  deemed  vacancy  be

declared in respect of the building under Section 12(1)(b)  of

UP Act 13 of 1972, and further reported that there was a case

in  favour  of  the  landlord-appellant  for  getting  released  the

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building  for  the  purpose  of  demolition  and  reconstruction.

(Co-landlords  also  joined  Anil  Kalra  by  moving  separate

application before the Competent Authority (Additional District

Magistrate, City, Lucknow).  On perusal of the report of the

Rent  Control  Inspector  and  after  inviting  objections  of

concerned  parties,  vacancy  was  declared.   Thereafter,  vide

order dated 30.12.1986 (on application dated 25.2.1986), the

Competent  Authority  issued  the  order  for  release  of  the

building under Section 16(1)(b) of UP Act 13 of 1972 in favour

of  the  appellant  and  co-landlords.   When after  issuance  of

Form-C unauthorized occupants failed to vacate the building,

Form-D was issued.

3. The unauthorized occupants filed a review petition before

the Competent Authority (Additional District Magistrate, City),

but  the  same  was  dismissed  with  the  finding  that  the

occupants  were  transferees  from  Swargiya  Sanjay  Gandhi

Sahkari Avas Samiti Ltd., which has no title or authority to

occupy the building.   On this  a Rent Revision was filed by

respondent  Nos.  1 to  3  (Dr.  J.D.  Pandey and his  two sons

Mrigendra  Pandey  and  Nripendra  Pandey,  both  advocates).

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The  revision  was  decided  by  V  Additional  District  Judge,

Lucknow,  vide  order  dated  28.10.1991,  in  favour  of  said

respondents.   The appellant  and co-landlords filed the  Writ

Petition  No.  183  (R/C)  of  1991  before  the  High  Court  of

Judicature  at  Allahabad,  Lucknow  Bench,  challenging  the

order passed by the revisional court.  After hearing the parties,

the writ petition was allowed by the High Court,  vide order

dated 26.5.1999 with the direction that  the proceedings for

delivery of possession to the landlord shall be re-initiated from

the stage they were stayed.  The application for recall, filed by

respondent  Nos.  1 to  3,  was  dismissed on 4.7.2002.   That

round  of  litigation  attained  finality  with  the  dismissal  of

Special  Leave  Petition  (C)  Nos.  24659-60  of  2002  on

10.12.2002, by this Court.

4. In  the  above  circumstances,  the  appellant  moved

application for execution of  Form-D before the Rent Control

Officer  (Additional  District  Magistrate,  City,  East,  Lucknow),

and on 22.2,2003 said authority issued direction for execution

of Form-D.  It is alleged by the appellant that to frustrate the

release order, respondent Nos. 1 to 3 offered to give possession

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of thirteen rooms only, and got the eviction proceedings stalled

against  unauthorized  occupants.   This  gave  cause  to  the

appellant to file Contempt Petition No. 265 of 2003 before the

High Court.  In said proceeding also respondent Nos. 1 to 3

expressed  willingness  to  hand  over  possession  of  thirteen

rooms only and not the building.  The single Judge, hearing

the  contempt  petition,  directed  the  Rent  Control  Officer

(Additional District Magistrate, City) to comply the order of the

High Court, passed in the writ petition, against which Special

Leave Petition (C) Nos. 24659-60 of 2002 had been dismissed.

Respondent Nos. 1 to 3 filed Contempt Appeal No. 51 of 2006

against  the  interim  order  dated  1.12.2006,  passed  by  the

Judge hearing the contempt petition.   The contempt appeal

was  dismissed  as  not  maintainable.   Thereafter,  the

respondents filed Special Appeal (Intra Court Appeal) No. 923

of  2006  before  the  High  Court.   The  appellant  raised  a

preliminary objection that no Special Appeal is maintainable

against the order of the Judge hearing the contempt petition.

However,  the High Court  rejected the  preliminary objection.

Hence,  this  appeal  through  special  leave,  before  us.

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Connected  Civil  Appeal  Nos.  5688-89  of  2007  are  filed  by

respondent Nos. 1 to 3 of the Civil Appeal No. 3763 of 2007

against  the  judgment  and  orders  dated  1.12.2006  and

8.12.2006,  passed  by  the  High  Court  in  Criminal

Miscellaneous Case No. 265 of 2006 and Contempt Appeal No.

51 of 2006.

5. Mr.  Pradeep  Kant,  learned  senior  counsel  for  the

appellant,  submitted that respondent Nos. 1 to 3 cannot be

allowed to frustrate the orders of the court passed in the first

round of litigation, which attained finality with the dismissal of

Special  Leave  Petition  (C)  Nos.  24659-60 of  2002.   On the

other hand, Mr. Dinesh Kumar Garg, learned counsel for the

respondents and affected parties, submitted that the landlords

are not  entitled  to  the release of  more than thirteen rooms

vacated by the Cane Commissioner.

6. However, the respondents failed to show that under what

authority the building was being occupied by respondent Nos.

1 to 3 and let out to various occupants in violation of Section

11 of the UP Act 13 of 1972.  Section 11 reads as under: - “11.  Prohibition  of  letting  without  allotment order.  –  Save  as  hereinafter  provided,  no  person

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shall  let  any  building  except  in  pursuance  of  an allotment order issued under Section 16.”

7. There is no allotment order issued in favour of any of the

alleged occupants under Section 16 of the UP Act 13 of 1972.

It is not in dispute that the building is old and covered under

sub-section  (2)  of  Section  2  of  the  Uttar  Pradesh  Urban

Buildings (Regulation of Letting, Rent and Eviction) Act, 1972,

which was initially applicable to ten years old buildings as on

15.7.1972.   By  UP Act  28  of  1976 words  “ten  years”  were

substituted by “twenty years”, and by UP Act No. 11 of 1988

“twenty years” were substituted with “forty years”.  As such, in

any  case  the  building  was  covered  under  the  Act  and  not

exempted under any of the clauses mentioned in Section 2 of

the UP Act No. 13 of 1972.

8. The expression “District Magistrate” is defined in clause

(c)  of  Section  3  and  includes  an  officer  authorized  by  the

District Magistrate to exercise,  perform and discharge all  or

any of his powers, functions and duties under the Act.  Clause

(b) of sub-Section (1) of Section 12 of UP Act No. 13 of 1972

provides  that  a  landlord or  a  tenant  of  a  building  shall  be

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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.   Section 13 of  the Act  provides that

where a landlord or tenant ceases to occupy a building or part

thereof, no person shall occupy it in any capacity on his behalf

of otherwise than under an order of allotment or release under

Section 16.  Clause (b) of sub-section (1) of Section 16 provides

that the District Magistrate may by an order release the whole

or any part of the vacant building in favour of the landlord.

9. In  Firm  Ganpat  Ram Rajkumar  v.  Kalu  Ram and

others1,  this  Court,  commenting  on  the  conduct  of  the

occupants  on  behalf  of  the  firm,  in  a  case  under  Haryana

Urban (Control of Rent and Eviction) Act, 1973, has observed

as under: - “5. In the aforesaid view of the matter, the question that requires consideration is how will this order of eviction passed by the High Court and confirmed by this Court by dismissing the special leave petition on the terms mentioned hereinbefore on 24-8-1987 is to be enforced or implemented? In our opinion, the said order must be implemented and cannot be allowed  to  be  defeated  by  the  dubious  methods adopted by the partners of the said firm of Ganpat Ram  Rajkumar.  The  whole  conduct  betrays  a calculated attempt to defeat the order of this Court

1 1989 Supp (2) SCC 418

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and to mislead this Court. If that is the position, in our opinion, parties cannot be allowed to do so and get away by misleading this Court………..”

10. In  Zahurul Islam v.  Abul Kalam and others2, after a

decree  of  eviction  passed  by  the  Competent  Court,  a

miscellaneous judicial case was filed before the Second Court

of the Assistant District Judge, Alipore, West Bengal on the

basis of forged rent receipts to get the execution proceedings

stalled.  Commenting on the conduct of  the tenant,  in said

case this Court made following observations: - “11. After considering the respective contentions of the learned counsel for the parties and the affidavits filed  by  Respondent  6,  M/s  Hind  Barrel  Co.  and Respondents 13 to 15, it appears to us that in the facts and circumstances of the case, the petitioner is entitled to a direction from this Court that  the decree  should  be  executed  immediately  by  the executing court and delivery of  the entirety of  the suit  premises  covered  by  the  decree  under execution, should be delivered to the decree-holder, the  petitioner,  Zahurul  Islam,  by  the  executing court by evicting Respondent 1, Abul Kalam and the other respondents including Respondents 6 and 13 to 15 and any other  person in possession of  any portion of the disputed premises, if necessary, with the police help…………….”

2 1995 Supp (1) SCC 464

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11. In Gayatri Devi and others v. Shashi Pal Singh3, in a

case  initiated  under  Delhi  Rent  Control  Act  challenging

eviction decree, this Court expressed its concern in following

words: - “13. The history of this litigation shows nothing but cussedness and lack of bona fides on the part of the respondent.  Apart  from  his  tenacity  and determination  to  prevent  the  appellants  from enjoying the fruits of the decree, there appears to be nothing commendable in the case. Even before us the  same  arguments  of  fraud,  and  that  the appellants  were  not  legally  owners  of  the  suit property, were pleaded.

xxx xxx xxx

18. Considering  that  the  respondent  has deliberately  delayed  the  execution,  the  executing court  shall  dispose  of  the  execution  proceedings with utmost dispatch.”

12. In M. Meeramytheen and others v. K. Parameswaran

Pillai and others4, considering the delay made by tenants in

vacating  the  premises  after  orders  passed  under  Kerala

Buildings  (Lease  and  Rent  Control)  Act,  1965,  by  getting

inducted sub-tenant, this Court issued following directions: - “14. The  executing  court  will  see  that  delivery  of possession is effected within a period of fifteen days from the date of filing of the execution petition or

3 (2005) 5 SCC 527 4 (2010) 15 SCC 359

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the application aforementioned. In case for delivery of  possession  any  armed  force  is  necessary,  the same  shall  be  deputed  by  the  Superintendent  of Police  within  forty-eight  hours  from  the  date requisition  is  received therefor.  It  is  also  directed that in case anybody else, other than the tenants, is found in possession, he shall also be dispossessed from the premises in question.”

13. In  Atma Ram Builders Private Limited  v.  A.K. Tuli

and others5, deprecating the conduct of the tenant after the

first round of litigation was over by getting inducted another

person, this Court expressed its anguish as under: - “4. It is deeply regrettable that in our country often litigations between the landlord and the tenant are fought up to the stage of  the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant  or  as  a  sub-tenant  or  in  some  other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot  get  possession  despite  the  order  of  this Court.  The  time  has  come  that  this  malpractice must now be stopped effectively.”

14. In view of law laid down by this Court,  as above, and

considering the facts and circumstances of the present case,

and conduct of respondents whereby persons in large number

inducted unauthorisedly by them without any allotment order,

Civil Appeal No. 3763 of 2007, filed by the landlord, deserves

5 (2011) 6 SCC 385

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to be allowed, and Civil Appeal Nos. 5688-89 of 2007, filed by

the respondents (contemnors before the single Judge of  the

High Court) are liable to be dismissed.  We order accordingly.

We further direct the Competent Authority (Additional District

Magistrate,  City,  East,  Lucknow)  to  execute  the  Form-D.

However,  keeping  in  mind that  there  are  several  occupants

(inducted  unauthorisedly  without  any  allotment  order),  on

humanitarian  ground  they  are  allowed  three  months’  time

from today to vacate the premises voluntarily, whereafter they

or anyone occupying in their place along with respondent Nos.

1  to  3  in  Civil  Appeal  No.  3763  of  2007,  shall  be  forcibly

dispossessed within 48 hours in compliance of this order, as

directed  above.  The  District  Magistrate  and  the  Senior

Superintendent  of  Police,  Lucknow,  are  directed  to  provide

every assistance in execution of the order of release, affirmed

by the High Court in Writ Petition (R/C) No. 183 of 1991 on

26.5.1999.  Needless  to  say  that  this  Court  has  already

dismissed Special Leave Petition (C) Nos. 24659-60 of 2002 on

10.12.2002, challenging the order passed in the writ petition

by the High Court.  We also clarify that the landlords are not

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allowed  to  let  out  the  released  building  (in  the  existing

condition),  and  they  shall  demolish  the  building  for

reconstruction for which the building has been released by the

authority concerned.

15. With the directions, as above, Civil Appeal No. 3763 of

2007 is allowed and Civil Appeal Nos. 5688-89 of 2007 stand

dismissed.  There shall be no order as to costs.

……………….....…………J. [Dipak Misra]

New Delhi;             .……………….……………J. September 29, 2015.             [Prafulla C. Pant]