Allahabad High Court
Ram Prakash Gupta vs District Judge And Anr. on 14 November, 2003
Equivalent citations: 2004(1)AWC426
ORDER S.U. Khan, J.
1. In this writ petition arguments of learned counsel for the petitioner were heard and judgment was reserved on 19.8.2003. On that date learned counsel for the respondent was not present as is evident from the order-sheet of that date.
2. The main point involved in this case is whether petitioner can be treated to be landlord of the building in dispute and entitled to file release application under Section 21 of U. P. Act No. 13 of 1972 even though he is not the owner. Prescribed authority decided the question in favour of the petitioner.
3. Petitioner had filed release application under Section 21 of U. P. Act No. 13 of 1972 against respondent No. 2 which was registered as R. C. Case No. 58 of 1978. Prescribed authority/II-Addl. Civil Judge, Kanpur allowed the release application on 25.8.1981 holding that petitioner was landlord and his need was bona fide and balance of comparative hardship also lay in his favour. Respondent No. 2/tenant filed an appeal under Section 22 of the Act being Rent Appeal No. 305 of 1981. District Judge, Kanpur by judgment and order dated 15.7.1982 allowed the appeal setting aside the judgment of the prescribed authority and dismissed the release application. The appellate court held that petitioner was not the landlord, hence release application filed by him was not maintainable. In view of this finding, the lower appellate court did not record any findings regarding bona fide need and comparative hardship.
4. The shop in dispute is owned by Mangali Prasad and Chunni Lal. Petitioner managed the property on their behalf and collected the rent from the tenant/respondent No. .2. Under Section 3 (j) of the Act landlord means a person to whom the rent of the tenanted building is payable and includes agent or attorney of such person. The prescribed authority held as follows :
"Even Mangali Prasad has filed (SIC), the applicant is managing the affairs of premises in question. However, the allegation in para 11 of the W. S. is also very much relevant on this point. The opposite party has admitted that the rent has been paid to the applicant. Even Sadhna Mishra, President of the opposite party society in her affidavit dated 9.2.1981 has admitted that the applicant represented as the landlord and rent was paid to him. From the side of the opposite party Badri Vishal, Manager of the society has admitted the applicant as landlord in para 9 of his affidavit dated 24.4.1981."
The lower appellate court held that :
"The position of the respondent has been that of a mere agent or an instrumentality, in the context of Section 21 (1) (a) he is not the landlord or as such competent to apply for release based on his own requirements."
5. In my view, the view taken by lower appellate court is not correct. A person authorised to manage the tenanted property and to collect its rent on behalf of landlord is also included in the definition of landlord given in Section 3 (j) of the Act and is entitled to file release application for his need. In this regard reference may be made to the following authorities :
(1) AIR 2002 SC 67 : 2003 ACJ 811 (SC) ; ' (2) AIR 2002 SC 1264 ;
(3) AIR 2002 SC 2171.
6. Accordingly, it is held that release application filed by petitioner for his own need as landlord is quite maintainable.
7. The writ petition is, therefore, allowed. Judgment and order passed by lower appellate court is set aside. The matter is remanded to the lower appellate court for deciding the appeal on merit. As no one has appeared on behalf of tenant, hence it is directed that lower appellate court must not proceed with the appeal without ensuring service of notice upon the tenant. The tenant shall not be evicted until decision of appeal.