Sagar Ali vs District Judge and Others

Rajesh Tandon, J.—Heard Sri CD. Bahuguna, counsel for the Petitioner.

By the present Writ Petition, the Petitioner has prayed for quashing of the orders passed by the Rent Control and Eviction Officer as well as the Revisional Authority (Annexures 2 and 3 of the Writ Petition).

Briefly stated, the proceedings for the vacancy were instituted in respect of the shop. In pursuance thereof an application for release was filed on the basis of agreement to sell the house on 6th July, 1981 in favour of the Respondent No. 3.

It was stated in the release application that the property in question was agreed to be sold of a sum of Rs. 10,000/- out of which, he received a sum of Rs. 9,800/- and the balance was to be paid at the time of registration before the Sub Registrar. The vacancy was declared on 2nd September, 1981. In pursuance of the aforesaid vacancy, the Petitioner as well as the Respondent both have applied for the release of the disputed shop. The Rent Control and Eviction Officer has recorded a finding that the requirement of the Petitioner was neither bonafide nor genuine and therefore, the shop could not be allotted (released) in his favour. However, so far as the release in favour of the Respondent No. 3 was concerned, the same was considered to be genuine on the basis of the principles contained in Section 53-A of the Transfer of Property Act. The Petitioner approached to the Revisional Authority u/s 18 of U.P. Act No. 13 of 1972. The said revision has been dismissed. Section 53-A of the Transfer of Property Act provides as under:

53-A Part Performance- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty:

and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being a/ready in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,

and the transferee has performed or is willing to perform his part of the contract,

then notwithstanding that (* * *), where there is an instrument to transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

Agreement to sell will not create any title in favour of the prospective purchaser and as such there cannot be any grievance on the part of the Respondent No. 3 so as to file the application for release u/s 16 of U.P. Act No. 13 of 1972. Section 3(j) defines the word ''landlord'' means a person to whom rent is paid or if the building were let would be payable and includes, except in Clause (g), the agent or attorney of such person.

Section 3(j) reads as under:

3(j). "landlord", in relation to a building, means a person to whom its rent is or if the building, were let would be, payable, and includes, except in Clause (g), the agent or attorney, of such person;

A perusal of the record shows that on the basis of the agreement to sell alone, the Respondent No. 3 has filed the application for release and there is no evidence on the record with regard to any privity of contract with the out-going tenant so as to claim the release u/s 16 of U.P. Act No. 13 of 1972.

The landlord, as will appear from the aforesaid definition, is a person to whom, rent is payable, in the present case, there is no evidence on the record to establish that the out-going tenant has ever paid the rent to the Respondent No. 3 so as to claim the status of the landlord within the meaning of Section 3(j) of U.P. Act No. 13 of 1972 in order to entitle him for filing the release application u/s 16(1) of U.P. Act No. 13 of 1972.

In view of the above, the order passed by the Courts below having been passed without taking into consideration the definition of the landlord as contained u/s 3(j) of U.P. Act No. 13 of 1972, therefore, the Writ Petition succeeds and is allowed. The matter is sent back to the Rent Control and Eviction Officer for reconsidering the question of release in the light of the observation made above.

The impugned order passed by the Appellate Court is quashed. Subject to the aforesaid observation, writ petition is allowed.