Ismail vs District Judge and Another

Yashoda Nandan, J.—This petition by the landlord arises out of the proceedings u/s 21 of U.P. Act No. XIII Of 1972.

The Petitioner''s application for the release of the accommodation in dispute in the tenancy of the opposite party No. 2, Sri Mohd. Ilyas, was dismissed by the Prescribed Authority. On an appeal preferred by the Petitioner it was found by the learned District Judge, Saharanpur, that the landlord''s need was genuine and the portion of the house in dispute was not being used by opposite party No. 2 for his residence but was being used for purposes of carrying on business. The finding was that opposite party No. 2 was actually residing elsewhere but was utilizing the portion of the premises in dispute only or the purposes of business. It was held that the accommodation in dispute had been let out to opposite party No. 2 for residential purposes but it was not being used as such. In the result, the learned District Judge set aside the order of the Prescribed Authority and allowed the appeal of the Petitioner but in the operative portion of his judgment directed that the release order would be operative two years after the date of the order during which time opposite party No. 2 would vacate the disputed accommodation. Parties were directed to bear their own costs.

Learned Counsel appearing for the Petitioner contended that the learned District Judge was not competent while allowing the application u/s 21 of the U.P. Act No. XIII of 1972, to postpone the effective operation of the release order.

Learned Counsel appearing for the opposite party No. 2 controverted the submission and urged that in view of Rule 22(f) of the rules framed under the Act, the learned Distt. Judge had all such powers as were available to a Civil Court under the provisions of Section 151 of the Code of Civil Procedure. The order passed by the learned District Judge postponing the operation of the order of release, it was urged, amounted to an order passed in exercise of powers u/s 151 of the Code. Sub-section (6) of Section 21 of the Act, on which Learned Counsel for the Petitioner relied, is as follows:

On the expiration of a period of thirty days from an order under Sub-section (1), or Sub-section (1-A) or Sub-section (2), the tenancy of the tenant shall stand determined in its entirety or, as the case may be, in respect of any part or appurtenant land released in favour of the landlord....

The provision of Sub-section (6) of Section 21, as quoted above, clearly lays down that the tenancy of the tenants will automatically cease on the expiration of thirty days of an order passed under Sub-sections (1), (1-A) or (2) of Section 21 and in view of this express provision it was not open to the Prescribed Authority or the Appellate Authority in substance to enlarge the tenancy and permit the occupation of the premises concerned to the tenant by exercising powers u/s 151 CPC The inherent power cannot be exercised by any court or authority in the teeth of an express provision of law. As a result of Sub-section (6) of Section 21 of the Act, the tenancy of the opposite party No. 2 automatically stood determined on the expiration of thirty days from the date of the order passed by the District Judge. The tenancy of the opposite party No. 2 beyond the period of thirty days, is in my opinion, without jurisdiction.

The writ petition consequently succeeds in part and the order of the learned District Judge is quashed to the extent that he has granted two years'' time to opposite party No. 2 to vacate the disputed accommodation. This Court in exercise of its powers under Articles 226/227 of the Constitution of India is however competent to grant time, in appropriate cases to a party to enable him to vacate the accommodation in dispute without undue hardship. While the writ petition is allowed to the extent indicated above, the opposite party No. 2 is granted 4 months'' time from today to vacate the premises in question. Parties shall bear their own costs.