# Chandra Mohan Sama v. Banwari Lal Ghai and another

- **Citation:** (2010) 3 ILRA 983
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-13
- **Case number:** Civil Misc. Writ Petition No. 26826 of 2009
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-mohan-sama-v-banwari-lal-ghai-and-another-41765
- **Pages:** 5

## Headnote

Constitution of India Art.226-Declaration
of vacancy-Challanged by tenant on
ground of limitation claiming to be in
unauthorised possession since 1975-if
any mafiya forcibly accupy the building
and due to his fere land lord fails to
approach-be allowed justified its illegal
possession-even in absence of provision
of time limit-held-limitation not to be
read where not specifically provided.

Held: Para 23 & 24

If limitation of 12 years as reasonable
period is read in the provision of the U.P.
Urban Building (Regulation of Letting,
Rent and Eviction) Act, 1972, though
there is a definite lack of legislative
intent in the Act in this regard, it would
amount to permitting illegal occupants
to grant legal sanction to their acts.
Occupation of building without allotment
would frustrate the regulatory provisions
of the Act and not germane to the object
for which the Act was legislated.

It may in circumstances be also misused
or misutilised e.g. if an influential
powerful person or mafia occupies a
building or portion thereof by force of
muscle power/State power then the
landlord would never be able to move
any application for release for fear of
him and his family. There can be other
such
examples
also,
hence
in
my
considered opinion, limitation should not
be read where it is not specifically
provided for.
Case law discussed:
(2005(1)
ARC-144),(1994
A.L.J.-999(F.B.),
2005(2)
A.R.C.-665,
(2006(63)
ALR-677),
(2006(62) ALR 383), (2009(10) A.D.J.-607),
(1984(1) ARC 17),(AIR 1964 SC-752).

## Text

3 All] Chandra Mohan Sama V. Banwari Lal Ghai and another
983
appreciated in correct perspective by the
Joint
Director
of
Education
while
proceeding to pass the impugned order.

15. Accordingly, the writ petition is
allowed and the orders dated 28.2.2004
and 8.3.2004 are set aside. The matter is
remitted back to the Regional Level
Committee to pass fresh orders after
hearing both the parties in the light of the
observations made herein above within 3
months from the date of production of a
certified copy of this order before the
concerned authority.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2010

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 26826 of 2009

Chandra Mohan Sama
 ...Petitioner
Versus
Banwari Lal Ghai and another

 ...Respondents

Counsel for the Petitioner:
Mr. Amitabh Agarwal
Mr. Pramod Kumar Jain

Counsel for the Respondents:
Mr. V.P. Misra
Mr. J. Nagar

Constitution of India Art.226-Declaration
of vacancy-Challanged by tenant on
ground of limitation claiming to be in
unauthorised possession since 1975-if
any mafiya forcibly accupy the building
and due to his fere land lord fails to
approach-be allowed justified its illegal
possession-even in absence of provision
of time limit-held-limitation not to be
read where not specifically provided.

Held: Para 23 & 24

If limitation of 12 years as reasonable
period is read in the provision of the U.P.
Urban Building (Regulation of Letting,
Rent and Eviction) Act, 1972, though
there is a definite lack of legislative
intent in the Act in this regard, it would
amount to permitting illegal occupants
to grant legal sanction to their acts.
Occupation of building without allotment
would frustrate the regulatory provisions
of the Act and not germane to the object
for which the Act was legislated.

It may in circumstances be also misused
or misutilised e.g. if an influential
powerful person or mafia occupies a
building or portion thereof by force of
muscle power/State power then the
landlord would never be able to move
any application for release for fear of
him and his family. There can be other
such
examples
also,
hence
in
my
considered opinion, limitation should not
be read where it is not specifically
provided for.
Case law discussed:
(2005(1)
ARC-144),(1994
A.L.J.-999(F.B.),
2005(2)
A.R.C.-665,
(2006(63)
ALR-677),
(2006(62) ALR 383), (2009(10) A.D.J.-607),
(1984(1) ARC 17),(AIR 1964 SC-752).

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

2. The petitioner claims himself to
be tenant of house, F-48 Shanti Nagar,
Kanpur Nagar since 1975 without there
being any allotment order. It appears that
respondent no, 2 moved an application for
declaration of vacancy and for allotment
on the ground that petitioner is an
unauthorised occupant. Objections were
filed by the petitioner and he also filed
certain rent receipts.
984 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

3. The Prescribed authority vide its
order dated 21.2.2005 held that petitioner
occupied the property in 1975 and that
there is no allotment order in his favour.
The property was released in favour of the
landlord vide order dated 28.12.2005.
Revision filed by the petitioner has also
been dismissed by order dated 10.4.2009
by the revisional court.

4. Contention of the counsel for
petitioner is that even if finding of the
Prescribed Authority is upheld that
petitioner is an unauthorised occupant and
he occupied the property in 1975, even
then
the
proceedings
were
not
maintainable after 21 years and were
barred by period of limitation. It is on
these grounds that this petition has been
filed. No other point has been argued.

5. Counsel for the petitioner has
relied upon three judgments of this Court.
First decision relied on by the counsel is
Munna Lal Agrawal Vs. Rent Control
and Eviction Officer/City Magistrate,
Mathura and others (2005(1) ARC144), in which three shops in dispute were
let out without allotment order, hence the
Prescribed.
Authority
declared
the
vacancy Court held that proceedings for
release initiated by the landlord after
reasonable period of time suffer from vice
of limitation.

6. The Full Bench decision in
Nootan Kumar Vs. A.D.J.(1994 A.L.J.-
999(F.B.) was in operation at that time. It
may be pointed out at this stage that
judgement in Nootan Kumar's case
(supra) has been set aside by the Apex
Court in 2005(2) A.R.C.-665. The court in
paragraph no. 9 of the judgement, has
held that after reversal of the Full Bench
judgment by the Supreme Court, entire
scenario has changed and now agreement
is binding between the landlord and tenant
and landlord can file suit for eviction on
the grounds mentioned under section
20(2) of the Act and and also release
application under section 21 of the Act on
the ground of bonafied need.

7. In the second decision relied on
by the counsel for petitioner Rajdhari
Vs.
Smt
Ranjana
Gupta
and
another(2006(63) ALR-677), eviction of
the tenant was also sought on the ground
of vacancy and it was argued that
limitation of 12 years will have to be read.
Proceedings for eviction of unauthorised
occupant were initiated after 21 years
from the date of unauthorised occupation
and it was held that proceedings for
eviction on the ground of vacancy after
such period is not maintainable and
liberty was given to the landlady to seek
eviction on the grounds available to her in
law.

8. Last case cited by the counsel for
petitioner is Anil Kumar Dixit Vs. Maya
Tripathi and another(2006(62) ALR
383). In that case also building was let out
without allotment order and it was held
that it may be deemed to be vacant and
open to allotment as agreement of letting
is not binding upon Rent Control and
Eviction Officer. In paragraph no. 5 and 7
of this decision, it was held that in view of
section 12 and 16 of the Act, there was no
limitation for initiating proceedings but
application is to be filed within a
reasonable period of time.

9.

Learned
counsel
for
the
respondent has urged that finding of the
prescribed
authority that there was
vacancy while allowing the release
application, has been confirmed by the
3 All] Chandra Mohan Sama V. Banwari Lal Ghai and another
985
revisional court in Rent Revision no. 3 of
2006, Chandra Mohan Sama Vs. Banwari
Lal and others.

10. It may be noted here that
aforesaid
revision
was
allegedly
dismissed ex parte vide judgment and
order dated 10.04.2009 and the petitioner
has moved application dated 15.5.2009
for setting aside and recall of the order
dated 10.4.2009 and restoring the revision
to its original number. This application is
pending.

11. In Smt. Jamuna Devi Vs.
District Judge, Kanpur Nagar and others
(2009(10) A.D.J.-607), relied upon by the
counsel
for
respondent,
the
Court
considered provisions of section 12(1) and
16(2) of U.P. Urban Building (Regulation
of Letting, Rent and Eviction) Act, 1972,
and the order declaring the vacancy and
release of premises in favour of landlordrespondent. Petition was filed by the
petitioner(tenant) on the ground that she
was residing in the disputed premises for
more than 20 years and erstwhile landlord
had not initiated any action nor sent any
notice for initiating any action against the
petitioner and she was being evicted by
respondent-builders who was trying to grab
the property evicting the petitioner. The
Court in those peculiar circumstances, held
that Rent control and Eviction Officer had
failed to consider the real question as to bar
of the proceedings: that landlord during all
these years had not taken any action against
the petitioner and that rent was being
regularly paid to the landlord who had no
grievance
at
all,
hence
the
release
application filed by the builders was
quashed. It may be noted here that decision
in Anil Kumar Dixit(supra), cited by the
counsel for petitioner as well as decision of
Apex Court in Mansa Ram Vs. S.P.
Pathak and others(1984(1) ARC 17), were
considered in this case.

12. Further contention of the counsel
for respondent is the petitioner has filed
before this Court a photo copy of his driving
license as annexure no. 5 to this petition to
establish the fact that he was tenant of the
building in dispute. He submits that from its
perusal, it is clear that driving licence is of
one Chandra Mohan and not of Chandra
Mohan Sama- the Petitioner .The Address
given in the Driving Licence is resident of
Shashtri Nagar, Kanpur whereas the
petitioner in the courts below has given his
address as F-48, Shanti Nagar, Kanpur
Nagar. He was vehemently argued that the
person whose driving licence has ben filed
as annexure no. 5 is a different person from
the petitioner. Admittedly, this driving
licence was not filed before the courts
below.

13. As regards limitation is concerned
, counsel for the respondents has urged that
limitation will not come in the way in filing
release application as petitioner being an
unauthorized occupant of the building ,
there is recurring cause of action.

14. Having heard counsel for the
parties and on perusal of the record, it
appears that there is positive discrepancy in
the name and address of the petitioner
Chandra Mohan Sama as os apparent from
annexure no. 5 filed by him

15. In the case of Anil Kumar Dixit
(supra) and Rajdhari (supra) relied upon by
the counsel for the petitioner, the Court has
categorically held that a building which is
let out without allotment order is deemed to
be vacant and is open to allotment as the
agreement of letting id not binding upon
Rent
Control
and
Eviction
Officer.
986 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
However as regards limitation is concerned,
the Court has held that under section 12 and
16 of the Act. There is no limitation for
initiating the proceedings but application is
to be filed within a reasonable period of
time and period of 12 years should be taken
as
reasonable
time
for
initiating
proceedings.

16. In the decision in Munna Lal
Agarwal's case (supra), the Court was
considering the effect of judgment in
Nootan Kumar's case which was set aside
by the Apex Court as has been noted in
paragraph no.9 of the judgment.

17. What should be taken as
reasonable time would, therefor depends on
facts and circumstances of each case.

18. In my considered opinion, once th
provision do not provide for any specific
limitation, then cause of action would not be
barred by limitation. An unauthorized
occupant cannot be clothed with legal right
to remain in possession of the building, for
it is to be alloted by Rent Control and
Eviction Officer in accordance with law .
The Petitioner in this case came into
unauthorized occupation since 1975 as
claimed by him, it cannot be regularized
and is bound by the provision of the Act.

19. In The Bombay Gas Co. Ltd Vs.
Gopal Bhiva nand others (AIR 1964 SC752), the Apex Court has held that Court
has no power to fix any limitation where it
is not provided in the statue as this would
amount to legislate the statue. In this regard,
paragraph no. 13 of this decision is quoted
below:

"In dealing with this question, it is
necessary to bear in mind that though the
legislature knew how the problem of
recovery of wages had been tackled by the
Payment of Wages Act and how limitation
has been prescribed in that behalf, it has
omitted to make any provision for limitation
in enacting S.33C.(2). The failure of the
legislature to make any provision for
limitation cannot, in our opinion, be
deemed to be an accidental omission. In the
circumstances, it would be legitimate to
infer that legislature deliberately did not
provide for any limitation under S. 33C(2)
may not always be conscious of their rights
and it would not be right to put the
restriction of limitation in respect of claim
which they may have to make under the said
provision . Besides, even if the analogy of
execution
proceedings
is
treated
as
relevant, it is well known that a decree
passed under the Code of Civil Procedure is
capable of execution within 12 years,
provided, of course it is kept alive by taking
step in aid of execution from time to time as
required by Art. 182 of the Limitation Act;
so that the test of one year r six months
limitation prescribed by the Payment of
Wages Act cannot be treated as a uniform
and universal test in respect of all kinds of
execution claims. It seems to us that where
the legislature has made no provision for
limitation, it would not be open to the
courts to introduce any such limitation on
grounds of fairness or justice. The words of
S. 33C(2) are plain and unambiguous and it
would be the duty of the Labour Court to
give effect to the said provision without any
considerations of limitation. Mr. Kolah no
doubt emphasised the fact that such belated
claims made on a large scale may cause
considerable
inconvenience
to
the
employer, but that is a consideration which
the legislature may take into account, and
if the legislature feels that fair play and
justice require that some limitation should
be prescribed, it may proceed to do so. In
the absence of any provision, however, the
Labour Court can not import any such
3 All] Ram Kumar and another V. Addl. District Judge, Chandausi and others
987
consideration
in
dealing
with
the
applications made under S.33C(2)."

20. The cases cited by the counsel for
petitioner is decision of coordinate Bench
presided over by learned single Judge
whereas the ratio in Bombay Gas's
case(supra) has binding effect under Art.
141 of the Constitution.

21. It may also be noted that decision
in Smt. Jamuna Devi's case cited by the
counsel for respondent is dated 19.9.2008
and since the matter of limitation is pending
before the Supreme Court, I am of the
opinion that in the facts and circumstances
the question of limitation would not arise
and the release application has rightly been
allowed by the prescribed authority.

22. Since this Court has already heard
the petitioner on merits of the judgements
passed by the prescribed authority as well as
revisional court, hence remanding the
matter on restoration application would be a
futile exercise.

23. If limitation of 12 years as
reasonable period is read in the provision of
the U.P. Urban Building (Regulation of
Letting, Rent and Eviction) Act, 1972,
though there is a definite lack of legislative
intent in the Act in this regard, it would
amount to permitting illegal occupants to
grant
legal
sanction
to
their
acts.
Occupation of building without allotment
would frustrate the regulatory provisions of
the Act and not germane to the object for
which the Act was legislated.

24. It may in circumstances be also
misused or misutilised e.g. if an influential
powerful person or mafia occupies a
building or portion thereof by force of
muscle power/State power then the landlord
would never be able to move any
application for release for fear of him and
his family. There can be other such
examples also, hence in my considered
opinion, limitation should not be read where
it is not specifically provided for.

25. For all reasons stated above, the
writ petition fails and is accordingly
dismissed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2010

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 44792 of 2010

Ram Kumar and another ...Petitioners
Versus
Addl. District Judge, Chaundausi and
others

 ...Respondents

Counsel for the Petitioner:
Sri Vishesh Kumar Gupta
Sri T.P. Bhardwaj

Counsel for the Respondents:
Sri Vishnu Gupta

Code of Civil Procedure-Order 9 Rule 13Application for setting a side ex party
Decree-on
ground
earlier
judgment
passed after hearing same of heirsrepresenting. Estate-Decree upheld by
the Apex Court-held-application under
order 9 Rule 13 not maintainable.

Held: Para 6

In view of the law laid down by the
Hon'ble Apex Court, the application filed
by the petitioners under Order IX Rule
13 C.P.C. for recall of the ex parte decree
on the ground that they were also the
heirs of the deceased defendant, who