Learned counsel for the petitioner has filed one application, one supplementary rejoinder affidavit and one rejoinder affidavit which are taken on record.
Heard Sri A.S.Rai, learned counsel for the petitioner, and Sri Rahul Sripat, learned counsel for the respondent no.1.
It is unfortunate that for five years release proceedings are held up. Sri A.S.Rai, learned counsel for the petitioner categorically stated that the building in dispute was allotted to the petitioner by R.C. & E.O. and in the allotment order Sri G.P. Tandon was shown to be the landlord who died in 1995 and until 1995 petitioner tenant continued to pay rent to him. Sri Rai has further argued that after the death of Sri G.P.Tandon, respondent no.1 Ladli Tandon became landlord and petitioner started and continued to pay rent to Sri Ladli Tandon upto 2006. The further argument is that on 5.12.2006 respondent no.1 entered into an agreement for sale with Kailash Jaiswal and Dr. A.K. Bansal, hence, thereafter petitioner started depositing the rent under Section 30 of U.P. Act no. 13 of 1972. Sri A.S. Rai on inquiry from Court has stated that pursuant to the agreement for sale dated 5.12.2006 Shri Jaiswal and Sri Bansal have neither demanded rent from the petitioner nor initiated any proceedings against him. The prayer sought through this writ petition is for a writ of prohibition (termed as writ of certiorari) for quashing eviction proceedings of P.A. case no.8 of 2007 Ladlie Tandon Vs. Sri A.N. Sinha which is a release application under Section 21 of U.P. Act No.13 of 1972 pending before P.A./Civil Judge(J.D.) Court no.13, Allahabad.
The precise argument of learned counsel for the petitioner is that the agreement for sale dated 5.12.2006 is actually a sale deed and in this regard a judgement of Division Bench dated 8.2.2010 given in writ petition no.6387 of 2008 Rustam Khusro Shapoor Ji Gandhi and others Vs. State of U.P. and others has been shown. In the said judgment no such thing has been held, it was only the argument of the State which was noted. In the said judgment it was held that the petition was a proxy petition. The said case related to free hold rights on the basis of possessory right. By virtue of Section 54 T.P. Act sale is a transfer of ownership and Contract/Agreement for sale does not of itself create any interest in or charge on such property.
On inquiry from Court Sri A.S.Rai, learned counsel for the petitioner has categorically stated that the persons in whose favour agreement for sale has been executed by respondent no.1 never gave notice to the petitioner nor ever demanded the rent. At this juncture para 2 of the Supreme Court authority reported in P.K. Gupta Vs. R. Nagdeo AIR 1999 S.C. 1823 is quoted below:-
"The enviable position to which the tenant of a shop building has ensconced himself as corollary to the judgment of the High Court (under appeal now) is that he need not thenceforth be accountable to any landlord. On the one side when the claim of appellant to be the landlord has been discountenanced by the High Court, at the other side the person whom the tenant proclaimed as his landlord has disclaimed the credential. If the judgment of the High Court remains in force the tenant stands elevated virtually to the status of owner of the suit building. But appellant is not prepared to concede defeat and hence he has come up with this appeal by special leave."
It is interesting to note that in the writ petition the agreement dated 5.12.2006 has been described as illegal, void, malicious, fraudulent and an act of high handedness (para 12 of writ petition).
What is being argued is actually the theory of paramount title holder which has thoroughly been examined by Supreme Court in Vashu Deo vs. Bal Kishan A.I.R. 2002 SC 569. In the said authority, it has been held that decree of eviction obtained by tenant against his sub-tenant does not become non est due to filing of a suit for eviction by the landlord against the chief tenant. In the said authority, three conditions to constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession have been laid down. Para 12 of the said authority is quoted below::-
"To constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises three conditions must be satisfied: (i) the party evicting must have a good and present title to the property;
(ii) the tenant must have quitted or directly attorned to the paramount title holder against his will;
(iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent Court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title holder, lies on the party relying on such defence."
In this regard reference may also be made to Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665 which followed the above authority.
None of the above three ingredients is present in the instant case. Even if for the sake of argument it is assumed that the agreement for sale in the instant case is virtually sale deed still the ingredients at serial no.2 and 3 are missing and ingredient at serial no.1 is only half present.
I do not see any reason to short circuit the release proceedings by quashing them at this premature stage. It is held that the respondent no.1 continues to be landlord of the petitioner and the release application filed by respondent no. 1 is quite competent and maintainable.
However, petitioner is at liberty to raise the contention regarding effect of the agreement for sale executed by respondent no.1 on his bonafide need subject to all possible please being available to the respondent no.1 to refute the contention.
Both the parties are directed to appear before the Prescribed authority on 31.10.2012. The matter is quite old hence the Prescribed authority shall decide the matter very expeditiously.
Absolutely no unnecessary adjournment shall be granted to any of the parties. If any adjournment is granted, it shall be on a very heavy cost which shall not be less than Rs.500/- per adjournment.
Writ petition is disposed of accordingly.
Order Date :- 27.9.2012 vkg