# Smt. Krishna Devi v. Additional District Judge, Kanpur Nagar and others

- **Citation:** (2010) 3 ILRA 1379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-08
- **Case number:** Civil Misc. Writ Petition No. 70333 of 2010
- **Bench:** Shashi Kant Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-krishna-devi-v-additional-district-judge-kanpur-nagar-and-others-41810
- **Pages:** 14

## Headnote

Act No. 13 of 1972-Section-12, 13Declaration
of
Vacancy
resisted
by
petitioner
on
ground
of
limitation-
1380 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Objection based on possession since
1981 to 2006-as barred by limitation-for
all purposes-petitioner is within meaning
of unauthorised occupant-No right to
obstract the proceeding-view taken by
both authorities perfectly justified.

Held: Para 23

The premises in the possession of an
unauthorized occupant would be deemed
to be vacant for the purposes of Rent
Control Act, even if an unauthorized
occupant is inducted into the premises
contrary to the provisions of the Act by
the landlord himself, the legislature has
not placed any restriction on the rent
control
authorities
to
initiate
proceedings under Section 12 of the Act.
So far as the release of such premises
which are deemed to be vacant under
Section 12 (4) of the Act is concerned,
the application of release has to be
considered on merit in accordance with
law by the District Magistrate. The
unauthorized/prospective allottee has
no right to interfere in the aforesaid
proceeding of release.
Case law discussed:
Uttam Namdeo Mahale (supra), AIR 1964 SC
752, 2002 (2) ARC 645, 2008 (2) ARC 264,
Rent Case 1982 (585), ARC 1995 1995 (2)
309, Manoj Krishna Shukla Vs. Mahaveer 2007
(2) ARC 209,Nutan Kumar and others Vs. Iind
Additional District Judge and others 2002 (2)
Allahabad Rent Cases 645, Jamuna Prasad Vs.
Incharge, District Judge, Kanpur Nagar and
others 2003 (2) ARC 299, 2001 (2) Allahabad
Rent Cases 516.

## Text

_Characters 0–39,686 of 45,531. This is a partial read: ask again with offset=39686 for what follows._

3 All] Smt. Krishna Devi V. Additional District Judge, Kanpur Nagar and others
1379
systematically conspired to cheat the
petitioner by advancing the loan for
purchase of the truck. Petitioner claims to
have sent an application to the police
authorities to register an F.I.R. and when
no steps had been taken, criminal writ
petition was filed in the High Court for
issuing
direction
to
register
first
information report and with certain other
reliefs. The High Court directed the Senior
Superintendent
of
Police
to
ensure
registration of the case by a competent
Police Officer. The said order was
challenged by the Bank. The Apex Court
allowed the appeal by directing that on
deposit of Rs. 50,000/- the Bank shall
forthwith release the truck of the petitioner
which was seized. The apex Court in the
said
context
has
made
following
observation in paragraph 18.

"18. Before we part with this matter,
we wish to make it clear that we do not
appreciate the procedure adopted by the
Bank in removing the vehicle from the
possession of the writ petitioner. The
practice of hiring recovery agents, who are
musclemen, is deprecated and needs to be
discouraged. The Bank should resort to
procedure recognized by law to take
possession of vehicles in cases where the
borrower may have committed default in
payment of the instalments instead of
taking resort to strong arm tactics.

There shall be no order as to costs.

Appeal allowed."

10. There cannot be any dispute to
the proposition as laid down by the Apex
Court in the above case. The Bank has to
resort to the procedure recognised by law
to take possession of the vehicle. However,
in case the Bank commits any violation or
commits an offence, it is always open for
an aggrieved person to take such criminal
or civil action as permissible under law.

11. In view of the aforesaid, the
above case which arose out of criminal
writ petition does not help the petitioner in
the present case.

12. In view of the foregoing
discussions, we are of the view that no
grounds have been made out to issue any
mandamus to a purely private body
namely; i.e. Commercial Auto Sales Pvt
Ltd. in the facts of the present case. We,
however, observe that it is open for the
petitioner to take such civil or criminal
action against the private body which may
be permissible under law.

13. With the aforesaid observations,
writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2010

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.

Civil Misc. Writ Petition No. 70333 of 2010

Smt. Krishna Devi

 ...Petitioner
Versus
Additional District Judge, Kanpur Nagar
and others

 ...Respondents

Counsel for the Petitioner:
Sri K.P. Shukla
Sri Arvind Kumar Tewari

Counsel for the Respondents:
Sri Atul Dayal

U.P. Urban Building (Letting and Rent)
Act No. 13 of 1972-Section-12, 13Declaration
of
Vacancy
resisted
by
petitioner
on
ground
of
limitation-
1380 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Objection based on possession since
1981 to 2006-as barred by limitation-for
all purposes-petitioner is within meaning
of unauthorised occupant-No right to
obstract the proceeding-view taken by
both authorities perfectly justified.

Held: Para 23

The premises in the possession of an
unauthorized occupant would be deemed
to be vacant for the purposes of Rent
Control Act, even if an unauthorized
occupant is inducted into the premises
contrary to the provisions of the Act by
the landlord himself, the legislature has
not placed any restriction on the rent
control
authorities
to
initiate
proceedings under Section 12 of the Act.
So far as the release of such premises
which are deemed to be vacant under
Section 12 (4) of the Act is concerned,
the application of release has to be
considered on merit in accordance with
law by the District Magistrate. The
unauthorized/prospective allottee has
no right to interfere in the aforesaid
proceeding of release.
Case law discussed:
Uttam Namdeo Mahale (supra), AIR 1964 SC
752, 2002 (2) ARC 645, 2008 (2) ARC 264,
Rent Case 1982 (585), ARC 1995 1995 (2)
309, Manoj Krishna Shukla Vs. Mahaveer 2007
(2) ARC 209,Nutan Kumar and others Vs. Iind
Additional District Judge and others 2002 (2)
Allahabad Rent Cases 645, Jamuna Prasad Vs.
Incharge, District Judge, Kanpur Nagar and
others 2003 (2) ARC 299, 2001 (2) Allahabad
Rent Cases 516.

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. This writ petition is directed
against the judgment and order dated
15.11.2010 passed by the Additional
District Judge, Court No. 14, Kanpur
Nagar in Revision No. 21 of 2010
upholding the order dated 28.1.2010
passed by the Rent Control and Eviction
Officer in Case No. 4 of 2010 whereby
the disputed premises was declared vacant
and consequently released in favour of the
landlord-respondents No. 3 and 4.

2. Brief facts of the case are as
follows;

3. Premises in dispute i.e. 119/2766
A Darshanpurwa, Kanpur (hereinafter
referred to the as 'disputed premises') was
alloted to the petitioner in the year 1957
thereafter, the disputed premises was
purchased by one Gaya Prasad who filed
a suit No. 1187 of 1966 for arrears of rent
and ejectment against the petitioner and
the said suit was decreed against the
petitioner. In pursuance of the execution
proceedings (Execution Case No. 197 of
1968) the petitioner was evicted from the
disputed premises and the decree holder
got the possession thereof. The petitioner,
however, after vacating the premises
again forcefully occupied the disputed
premises, therefore, a Suit No. 526 of
1976 was filed by Gaya Prasad on
26.8.1981 for possession and damages for
the use and occupation. The said suit was
decreed on 26.8.1981 but the said decree
was not executed, as a result whereof the
petitioner continued in the possession
over the disputed premises. The said
premises was subsequently sold by Gaya
Prasad vide sale deed dated 13.12.2006 to
the respondents No. 3 and 4, Anil Kumar
Agrawal and Smt. Kanchan Agrawal.

4. On 22.5.2007 an allotment
application was filed by the respondent
No. 2, whereupon and the Rent Control
and Eviction Officer (hereinafter referred
to as 'the RCEO') called for a report from
the Rent Control Inspector. The petitioner
submitted his written statement before the
Rent Control Inspector wherein he
claimed himself to be the tenant of the
disputed premises on the rent of Rs. 10/-
3 All] Smt. Krishna Devi V. Additional District Judge, Kanpur Nagar and others
1381
per month. By order dated 19.9.2008, the
RCO declared the vacancy of the said
premises. Consequently, the petitioner
filed a Writ Petition No. 63294 of 2008
against the order of the vacancy which
was
dismissed
as
not
pressed
on
15.9.2008. In the meantime, the premises
was released on 21.1.2010 in favour of
the landlord-respondents No. 3 and 4.
Aggrieved and dissatisfied with the order
dated 21.8.2010 passed by the RCEO, the
petitioner filed a Revision No. 21 of 2010,
which was dismissed by the judgment and
order dated 15.11.2010 by the Additional
District Judge, Court No. 14, Kanpur.
Hence, the present writ petition.

5. The learned counsel for the
petitioner has submitted that even though
the decree was passed against him for
possession and damages for use and
occupation in the year 1981, the said
decree was not executed within the
stipulated period, therefore, the petitioner
acquired ownership rights by adverse
possession. It was further submitted that
the provisions of Sections 11, 12 and 13
of the UP Act No. 13 of 1972 (hereinafter
referred to as 'the Act') cannot be invoked
against the trespasser. Next contention of
the learned counsel for the petitioner is
that the declaration of vacancy in the year
2008 is time barred, since the petitioner
was living in the premises uninterruptedly
since 1981 and no attempt was made by
the landlords to initiate the vacancy
proceedings qua disputed premises.

6. Per contra, learned counsel for the
respondents submitted that the petitioner,
at no point of time, had ever claimed
ownership by adverse possession before
the court below and in this connection
also referred to the paragraphs No. 3 and
9 of the affidavit dated 6.9.2007, wherein
the petitioner claimed himself to be a
tenant of the disputed premises on the rent
of Rs. 20/- per month with effect from
1971 and also admitted that the petitioner
continuously paid rent of the disputed
premises upto 5.8.2006 to the erstwhile
owner Gaya Prasad and Radha Devi.
Learned counsel for the respondents
further submitted that Sections 11, 12 and
13 of the Act are fully applicable in the
matter since the petitioner is occupying
the premises without any allotment order,
as such, the petitioner under Section 13 of
the Act will be deemed to be an
unauthorized occupant of the disputed
premises. He further submitted that the
Limitation Act is not applicable in the
matter. He further contended that the
present petition is not maintainable as the
previous writ petition No. 63294 of 2008
filed against the declaration of vacancy
dated 28.1.2010 was dismissed by this
Court as not pressed without granting any
liberty to the petitioner to file a fresh writ
petition, therefore, the present writ
petition is liable to be dismissed on this
ground alone.

7. Heard Sri Arvind Kumar Tiwari,
learned counsel for the petitioner, Sri Atul
Dayal,
learned
counsel
for
the
Respondents No. 3 and 4 and perused the
record.

8. It is not disputed that the
petitioner was evicted in execution of a
decree (execution case No. 197 of 1968),
from the premises in dispute in the year
1969 however the petitioner after vacating
the premises again forcefully occupied the
said premises, as such, the suit for
possession and damages for use and
occupation was filed against him in 1976
which was decreed against the petitioner
in the year 1981. However, the decree
1382 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
was not put to execution as a result the
petitioner continued in the possession.
Later on, the disputed property was sold
to the present owners in the year 2006.
Thereafter, an allotment application was
filed by respondents, as a result whereof
the vacancy was declared on 28.1.2010.
Aggrieved with the said order, the
petitioner filed a writ petition No. 63294
of 2008, however, the said writ petition
was dismissed as not pressed and no
liberty was granted by this Court to the
petitioner
to
file
a
fresh
petition.
Subsequent
thereto,
the
release
application filed by the landlords was
allowed by the R.C.E.O. Against the said
order, revision under Section 18 of the
Act was filed which was dismissed by the
ADJ, Kanpur. Hence, the present writ
petition.

9. The first contention of the
petitioner weaves round the argument that
the declaration of vacancy is time barred
as the petitioner is living in the disputed
premises uninterruptedly from 1981 and
no effort was made to initiate vacancy
proceedings until 2006.

10. Relying upon the principles laid
down in the case of Smt. Brij Bala Jain
(supra), he submitted that even though the
said Statute does not provide for any
limitation to declare vacancy but it should
be exercised within a reasonable time.

11. Per contra, learned counsel for
the respondent landlord submitted that the
law of limitation will not come in the way
in filing the release application as the
petitioner is an unauthorized occupant of
the premises in dispute and there is a
recurring cause of action.

12. The Apex court in the Case of
Uttam Namdeo Mahale (supra) has held
as under:

"Mr. Bhasme, learned counsel for
the appellant, contends that in the
absence of fixation of rule of limitation,
the power can be exercised within a
reasonable time and in the absence of
such prescription of limitation, the power
to enforce the order is vitiated by error of
law. He places reliance on the decisions
in State of Gujarat vs. Patel Raghav
Natha &Ors. [(1970) 1 SCR 335]; Ram
Chand & Ors. vs Union of India&
Ors.[(1994)1 SCC 44 ]; and Mohamad
Kavi Mohamad Amin vs. Fatmabai
Ibrahim [CA No. 5023/85 decided on
August 22, 1996]. We find no force in the
contention. It is seen that the order of
ejectment against the applicant has
become
final.
Section
21
of
the
Mamalatdar's
Court
Act
does
not
prescribe any limitation within which the
order needs to be executed. In the absence
of
any
specific
limitation
provided
thereunder, necessary implication is that
the general law of limitation provided in
Limitation Act (Act 2 of 1963) stands
excluded. The Division Bench, Therefore,
has rightly held that no limitation has
been prescribed and it can be executed at
any time, especially when the law of
limitation for the purpose of this appeal is
not there. Where there is statutory rule
operating in the field, the implied power
of exercise of the right within reasonable
limitation does not arise. The cited
decisions deal with that area and bear no
relevance to the facts."

13. In The Bombay Gas Co. Ltd.
Vs. Gopal Bhiva and Others (AIR 1964
SC 752), the Apex Court has held that
Court has no power to fix any limitation
3 All] Smt. Krishna Devi V. Additional District Judge, Kanpur Nagar and others
1383
where it is not provided in the statute as
this would amount to legislate the statute.
In this regard the relevant portion of
paragraph no.13 of this decision is
extracted as under:

"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
had 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). It may have
been thought that the employees who are
entitled to take the benefit of s. 330 (2)
may not always be conscious of their
rights and it would not be right to put the
restriction of limitation in respect of
claims 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 steps in aid of execution
from time to time as required by art. 182
of the Limitation Act, so that the test of
one year or 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 emphasized 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
limitations be prescribed, it may proceed
to do so. In the absence of any provision,
however, the Labour Court cannot import
any such consideration in dealing with the
applications made under s. 33C (2)."

14. The principles laid in the
aforesaid decision has been followed by
this court in Civil Misc. WP 26826 of
2009, Chandra Mohan Sama Vs.Banwari
Lal Ghai and another dated 13.8.2010
wherein this court has held that if the
limitation of 12 years as reasonable period
is read in the provision of U.P. Act No. 13
of 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.

15. Thus, in view of the above, this
Court is of the considered opinion that
limitation should not be read where it is
not specifically provided for.

16. The second contention of the
learned counsel for the petitioner that he
has acquired ownership rights by way of
adverse possession is totally untenable for
1384 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the following reasons; firstly, this plea
was never taken by the petitioner before
the court below. Secondly, the petitioner,
in paragraphs 3 and 9 of the affidavit filed
before the court below as well as before
the Rent Control Inspector, has very
categorically claimed himself as a lawful
tenant of the disputed premises. He also
stated therein that the rent of the disputed
premises was paid upto the year 2006 to
the erstwhile landlord Gaya Prasad, as
such, the petitioner cannot be permitted to
take two contradictory pleas at the same
time.

17. The third contention of the learned
counsel for the petitioner is that the
provisions of Sections 11, 12 and 13 of the
Act are not applicable in the matter and the
proceedings under the Act cannot be in
initiated against trespasser. The contention
of
the
learned
counsel
is
totally
misconceived and without any foundation
The petitioner has claimed himself to be a
tenant of the disputed premises on the rent
of Rs. 10/- per month and made categorical
averment to this effect in paragraphs 3 and 9
of the affidavit filed before the court below.

18. At this stage the relevant
provisions of the said Act need to be set out.
Sections 11, 12, 13 and 31 read as follows:

"11. Prohibition of letting without
allotment order. - Save as hereinafter
provided, no person shall let any buildings
except in pursuance of an allotment order
issued under Section 16.

12. Deemed vacancy of building in
certain cases.- (1) A landlord or tenant of a
building shall be deemed to have ceased to
occupy the building or a part thereof if -

(a) he has substantially removed his
effects therefrom, or

(b) he has allowed it to be occupied by
any person who is not a member of his
family, or

(c) in the case of a residential building,
he as well as members of his family have
taken up residence, not being temporary
residence, elsewhere.

(2) In the case of non-residential
building, where a tenant carrying on
business in the building admits a person
who is not a member of his family as a
partner or a new partner, as the case may
be, the tenant shall be deemed to have
ceased to occupy the building.

(3) in the case of a residential
building, if the tenant or any member of his
family builds or otherwise acquires in a
vacant state or gets vacated a residential
building in the same city, municipality,
notified area or town area in which the
building under tenancy is situate, he shall
be deemed to have ceased to occupy the
building under his tenancy;

Provided that if the tenant or any
member of his family had built any such
residential building before the date of
commencement of this Act, then such tenant
shall be deemed to have ceased to occupy
the building under his tenancy upon the
expiration of a period of one year from the
said date.

xxx xxx xxx

xxx xxx xxx

(3-A) If the tenant of a residential
building holding a transferable post
under any Government or local authority
3 All] Smt. Krishna Devi V. Additional District Judge, Kanpur Nagar and others
1385
or a public sector corporation or under
any other employer has been transferred
to some other city, municipality, notified
area or town area, then such tenant shall
be deemed to have ceased to occupy such
building with effect from the thirtieth day
of June following the date of such transfer
or from the date of allotment to him of
any residential accommodation (whether
any accommodation be allotted under this
Act or any official accommodation is
provided by the employer) in the city,
municipality,

notified area or town area to which
he has been so transferred, whichever is
later.

(3-B) If the tenant of a residential
building is engaged in any profession,
trade, calling or employment in

any city, municipality, notified area
or town area in which the said building is
situate, and such engagement ceases for
any reason whatsoever, and he is
landlord of any other building in any
other city, municipality, notified area or
town area, then such tenant shall be
deemed to have ceased to occupy the first
mentioned building with effect from the
date
on
which
he
obtains
vacant
possession of the last mentioned building
whether as a result of proceedings under
Section 21 or otherwise.

(4) Any building or part which a
landlord or tenant has ceased to occupy
within the meaning of sub-section (1), or
sub-section (2), or sub-section (3), subsection (3- A) or sub-section (3-B), shall,
for the purposes of this Chapter, be
deemed to be vacant.

(5) A tenant or, as the case may be, a
member of his family, referred to in subsection (3) shall, have a right, as
landlord of any residential building
referred to in the said sub-section which
may have been let out by him before the
commencement of the Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) (Amendment) Act,
1976 to apply under clause (a) of subsection (1) of Section 21 for the eviction
of
his
tenant
from
such
building,
notwithstanding that such building is one
to which the remaining provisions of this
Act do not apply.

13. Restrictions on occupation of
building without allotment or release.-
Where a landlord or tenant ceases to
occupy a building or part thereof, no
person shall occupy it in any capacity on
his behalf, or

otherwise than under an order of
allotment or release under Section 16,
and if a person so purports to occupy it,
he shall, without prejudice to the
provisions of Section 31, be deemed to be
an
unauthorised
occupant
of
such
building or part.

31. Penalties.- (1) Any person who
contravenes any of the provisions of this
Act or any order made

thereunder or attempts or abets such
contravention, shall be punished on
conviction with imprisonment of either
description for a term which may extend
to six months or with fine which may
extend to five thousand rupees or with
both.

(2) Whoever demolishes any building
under tenancy or any part thereof without
1386 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
lawful excuse shall be punished, on
conviction, with imprisonment of either
description for a term which may extend
to one year or with fine which may extend
to five thousand rupees or with both.

(3) Where a person has been convicted
for contravention of sub-section (1) of
Section 4, the court

convicting him may direct that out of
the fine, if any, imposed and realised from
the person so convicted, an amount not
exceeding the amount paid as premium of
additional payment over and above the rent
for admission as a tenant or sub-tenant to
any building may be paid to the tenant by
whom such payment was made :

Provided that any amount so paid to
the tenant shall be taken into account in
awarding compensation or restitution to
him in any subsequent claim."?

19. The plain reading of Section 13 of
the Act clearly goes to show that any person
occupying the premises without any
allotment order will be deemed to be an
unauthorized occupant of the premises and
in the present case, neither the petitioner
was able to produce any allotment order in
his favour nor was entitled for any benefit
under section 14 of the Act.

20. In terms of Section 13 of the Act,
without an order of allotment, tenants status
under the deeming provision is that of an
unauthorized occupant and that of trespasser
and the suit for getting back possession
from the trespasser can also be filed.
However, it does not debar the rent control
and eviction officer/appropriate authority
under the Act from setting in motion the
machinery for declaring vacancy of the
premises in dispute when he is of the
opinion that the premises which comes
within the ambit of the rent control act is
being
occupied
by
the
unauthorized
occupant/trespasser without an allotment
order. The UP Act No. 13 of 1972 of the
Act does not make any distinction between
the
unauthorized
occupant
and
the
trespasser so as to limit the power of the
Rent Control Eviction
Officer/District
Magistrate from initiating the proceedings
under Section 12 of the Act particularly
when the landlord fails to taken any eviction
proceedings against the trespasser.

21. The Apex Court in the case of
Nutan Kumar and others Vs. IInd
Additional District Judge and others,
2002 (2) ARC 645 has held that Section 13
of the said Act specifically provides that a
person who occupies, without an allotment
order in his favour, shall be deemed to be an
unauthorized occupant of such premises. As
he is in unauthorized occupation he is like a
trespasser. A suit for ejectment of a
trespasser to get back possession from a
trespasser could always be filed.Such a Suit
would not be on the contract/agreement
between the parties and would thus not be
hit by principles of public policy also.
However,
the
Apex
Court
in
the
aforementioned case has not said that for
ejecting
an
unauthorized
occupant/trespasser only the suit is a
remedy. It has not any where put any
restriction on the appropriate authority, to
seek
ejectment
of
the
unauthorized
occupant/trespasser
by
initiating
the
proceedings under Section 12 of the Act in
the light of sections 11 and 13 of the Act.

22. I am fortified in my view by the
following decisions which I wish to
briefly refer to as follows;
3 All] Smt. Krishna Devi V. Additional District Judge, Kanpur Nagar and others
1387

1. Ajay Pal Singh and others Vs.
District Judge, Meerut and others 2008
(2) ARC 264

"22- From the provisions of the Act
and Rules framed thereunder, it is
apparently clear that the legislature is
aware of the fact that an unauthorized
occupant is necessarily inducted into the
premises contrary to the provisions of the
Act by the landlord himself and despite
such facts being in the knowledge of the
legislature, it has nor placed any
restriction on the right of the right of the
landlord so far as release of such
premises. which are deemed to be vacated
under Section 12(4) of 1972 Act is
concerned, either under the 1972 Act or
Rules framed thereunder".

"23. In such circumstances, the
intention of the legislature is cleared that
the right of the landlord to make an
application for release in respect of
deemed vacancy covered by Section 12
(4) be not hampered or impaired part in
any manner only because of his being
inducted an unauthorized occupant. No
restriction on his right to make an
application under Section 16 (1)(b) has
been provided for and therefore no
restriction is required to be provided by
the Court in such right of the landlord."

2.
G.
Industrial
Syndicated
Allahabad Vs. Rent Control and
Eviction Officer Allahabad Rent Cases
1982 (585)

"13. From the above, it would
appear that in case of an illegal letting or
subletting, the view taken was that the
contract may be binding on the parties to
it, but not on the authorities, which would
mean that the possession of a person who
has been illegally let in would be
unauthorised. Section 11 and 13 of the
present Act make that position very clear.
No one now can either let out any
premises without an allotment order nor
can anyone occupy the same. If any one
occupies
the
premises
without
an
allotment order, he would not only be an
unauthorized occupant but also liable to
prosecution under section 31 of the said,
Act. His possession being unauthorised
cannot be recognised in the eye of law
and if it cannot be recognised in the eye
of law, there would be a vacancy. That
would entitle the Rent Control and
Eviction Officer under Section 16 to pass
an allotment order."

"15. Counsel for the petitioner,
however, urged that the use of the
expression ?where a landlord or a tenant
ceases to occupy a building or part
thereof? in indicative of the fact that this
section
will
apply
only
to
cases
contemplated by Section 12 inasmuch as
the words ?cease to occupy? have been
used in Sub-section (4) of Section 12. To
us, it appears that Section 13 serves the
dual purpose. It may apply to a case
covered by Section 12 but it has to be
read along with Section 11 as well.
Section 13 is common to both the
provisions.
That
being
so,
the
applicability of Section 13 cannot be
restricted to cases covered by Section 12"

"19. Assuming that Section 13 of the
Act applies only to cases contemplated by
Section 12, alternatively we find that, as
possession
of
Nizam
Shervani
was
unauthorised and illegal, there was a
vacancy even at the time when the house
was in his occupation and after it was
vacated by him. Section 11 prohibits a
person from letting any building except in
1388 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
pursuance of an allotment order issued
under Section 16. Since there is a
prohibition imposed on the right of any
person, which will include a landlord and
tenant both, the person occupying the
premises would be in an unauthorised
possession. Such a person could not be
treated to be a tenant. The authorised
possession of a person gives a right or
authority
to
occupy
it,
whereas
unauthorised would mean that the person
occupying is not possessed of rightful or
legal power and, as such, no legal
competency
which
can
have
any
recognition in the eye of law, as a result
of which the premises would be deemed to
be unoccupied or unfilled, or empty. It
that is so, the Rent Control and Eviction
Officer under Section 16 would be entitled
to pass an order of allotment. The
vancancy talked of in Section 16 takes
within its purview also possession of a
person which is not recognised in law. If
a person without any authority occupies a
premises, his possession would be of no
value and the premises would be
available to the District Magistrate for
passing an allotment order under Section
16."

"20. In Murli Dhar Agrawal v. State
of U. P. (supra), the Supreme Court found
that since there was no prohibition in U.
P., Act No. III of 1947 for letting or
occupying,
the
contract
arrived
at
between the two would be binding. The
lacuna has not been removed. In Act XIII
of 1972, there is a prohibition on the right
of any person to let out which will impose
a corresponding obligation not to occupy
the same. In the absence of a provision
like section 11 of the present Act, the
Supreme Court held that the contract of
letting in that case was binding between
the landlord and the tenant. However,
what is material to consider is that even
in that case the Supreme Court found that
such a contract was not binding on the
District Magistrate and he could treat the
building as vacant and evict therefrom the
tenant. Section 11 has made the position
crystal clear. The District Magistrate can
ignore the contract arrived at between a
landlord and the tenant and pass an
appropriate order for allotment under
Section 16. What he may be required to
do is to afford an opportunity of hearing
before evicting the tenant."

3. Jamil Ahmad Vs. Additional
District Judge ARC 1995 1995 (2) 309

"9. The findings given by Prescribed
Authority (Munsif), Dehradun on 13-041990 vide Annexure C.A.-13 is a judicial
pronouncement after considering all
aspect of the case and the present
petitioner being a party to it is bound by
it. In view of this judgment Annexure
C.A.-13 this Court has no hesitation in
coming to the conclusion that petitioner
Jameel Ahmad son of Safique Ahmad is a
rank trespasser. Section 13 of the Act lays
down that no person shall occupy a
building otherwise than under an order of
allotment or release under Section 16 and
if he does so he shall be deemed to be an
unauthorized occupant of such building.
The provisions of Section 13 are in
addition to Section 31 which prescribes a
penalty for unauthorized occupation of a
house. The contention on behalf of the
petitioner that even if he is a trespasser he
cannot be evicted under the provisions of
Act No. 13 of 1972 and a regular suit
should have been filed for his ejectment,
is not tenable. It is the petitioner himself
who in collusion with respondent No. 4
Pradeep kumar brought the matter within
the purview of Act No. 13 of 1972. The
3 All] Smt. Krishna Devi V. Additional District Judge, Kanpur Nagar and others
1389
petitioner persuaded respondent No. 4 to
file an application under the Act and he
had succeeded in getting the house
allotted in the name respondent No. 4. In
revision the matter was remanded by the
learned District Judge and it was thin that
it came to be released in favour of the
landlord. It has also been seen above that
petitioner himself filed an application
under Section 27 of the Act. It is not,
therefore, open to him to argue that the
case is not governed by Act No. 13 of the
1972."

"10. A reference in this connection
may be made to the case of M/s. R.C.
Bajpai and Company v. VIIth Additional
District Judge, Kanpur Nagar, reported
in 1994 (1) ARC 532. In the avobe case
an earlier authority of this Court has been
relied upon which is 1982(1) ARC 585. A
Division Bench has held in the case of
Geep
Industrial
Syndicate
Ltd.,
Allahabad v. R.C. And E.O., Allahabad,
as under:-

"Section 11 of the Act imposes a
prohibition restriction against letting
without an allotment order. Section 12
contemplates certain contingencies in
which a landlord or tenant of a building
would be deemed to have ceased to
occupy it. Section 13 provides for
restriction on occupation of building
without allotment order. A conjoint
reading of Section 11 imposes prohibition
on letting without allotment order. Section
13 places restriction on occupation
without an allotment or release. These
two sections, it would appear that neither
could a landlord let out a premises
without an allotment order nor can
anyone occupy it. These two provisions
were enacted to undo the effect of Full
Bench decision of this Court in Udho Das
v. Prem Prakash. The learned Judge
further observed as below ; ? From the
above admission it would appear that in
case of an illegal letting or sub- letting,
the view taken was that the contract may
be binding on the parties to it, but not on
the authorities which would mean that the
possession of a person who has been
illegally let in would be unauthorized.
Sections 11 and 13 of the Present Act
make that position very clear. No one can
either let out any premises without an
allotment order no can anyone occupy the
same. It anyone occupy the premises
without an allotment order, he would not
only be an unauthorized occupant but
also liable to prosecution under 31 of the
said
Act.
His
possession
being
unauthorized can not be recognized in the
eye of law and of it cannot be recognized
in the eye of law, there would be a
vacancy."

4. Manoj Krishna Shukla Vs.
Mahaveer 2007 (2) ARC 209

"13. The revisional Court has also
recorded detailed findings regarding
service of notice on the petitoner and his
father, Sri Lok Nath Shukla. The Rent
Control Inspector's report was signed by
Sri Manoj Krishna Shukla, petitioner and
verified by his Counsel, Sri Mukul
Asthana. The procedure prescribed in the
relevant rules including Rule 8, was
followed by the concerned Rent Control
Inspector
and
other
rent
control
authorities. As far as opportunity of
hearing is concerned, the revisional Court
recorded detailed findings that written
objections were filed by the petitioner
opposing the release application no
15.5.2000 and the case was listed on
16.5.2000. Thereafter the case was listed
on 20.5.2000. It was open for Manoj
1390 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Krishan Shukla, petitoner in this writ
petition to put forth his submission on or
before
20.5.2000.
He
was
also
represented through a legal practitioner.
The revisional Court had, thus, found that
adequate opportunity of hearing was
afforded to the petitioner."

"14. The revisional Court while
relying on the judgments as reported in
1997 (2) ARC 592, Suraj Bhan v.
Additional District Judge, Agra, 1997 (2)
ARC 558; Raj Kumar Kanodiya v. IIIrd
Additional City Magistrate, 1998 (1) ARC
153 (SC), Narayani Devi v. Mahendra
Kumar Tripathi, 1979 ARC 290, Hardev
Upadhyay v. Dr. Laeeq Ahmad, has held
that the petitioner, Manoj Krishna Shukla,
revisionist was illegally occupying the
premises
without
having
any
valid
allotment order of the premises and,
therefore, he had no right to contest the
release application or file the revision.
There was nothing on record to prove that
the petitioner, Manoj Krishna Shukla's
father, Sri Lok Nath Shukla was paying
rent to the previous landlord, Ram Autar
Shukla. No documents have been filed
before the Rent Control Officer or the
revisional Court and even in this Court to
prove that the tenancy existed between
Ram Autar Shukla and Lok Nath Shukla.
The petitoner has failed to demonstrate
before this Court also that he was a
lawful occupant, having an allotment
order in his favour of this father, Sri Lok
Nath Shukla was ever inducted as
tenant."

"29. Even otherwise, it is well settled
that an illegal and unauthorized occupant
without having any right or title and valid
allotment order cannot participate in the
release proceedings before the trial
Court. However, in the present case, the
petitioner was afforded opportunity to
remain associated with the trial. He has
also
taken
assistance
of
a
legal
practitioner, Sr. Mukul Asthana, who had
filed his Vakalatnama and the objections.
The petitoner has failed to prove before
the trial Court, revisonal court and this
Court also that he was a lawful, legal
tenant of the house in dispute. It is amply
clear that the petitioner has failed to
establish a case for inference in the
judgment and order passed by the lower
Court, which has recorded concurrent
findings of facts. He has also failed to
persuade the Court to take a different
view in the matter other than what has
been decided by the Courts below"

5. Nutan Kumar and others Vs. IInd
Additional District Judge and others
2002 (2) Allahabad Rent Cases 645

......... This Court held by the
majority of the Judges that so long as the
Act and the Rules continued in force the
control of letting vested in the appropriate
authority and not in the parties. It was
held that agreement of the kind embodied
in the compromise petition could not
curtail the powers of the appropriate
authority. It was held that irrespective of
the agreement between the parties the
appropriate authority was entitled to
exercise the powers of allotment vested in
him. It must be mentioned that Justice
Bhagwati, as he then was, in his minority
and partly dissenting Judgment held that
unless the consent decree was held to be
invalid it would be binding on the tenant
and even though the powers of the
appropriate
authority
may
not
be
curtailed, the tenant would be bound by
the terms of the agreement between him
and the landlord. This authority therefore
also lays down nothing contrary to
3 All] Smt. Krishna Devi V. Additional District Judge, Kanpur Nagar and others
1391
Nanakram's case. This authority merely
deals with the right of the appropriate
authority to exercise the powers given to
him under the Act.

23.