JUDGMENT Bharati Sapru, J.
1. Heard Sri Sankatha Rai learned senior advocate appealing for the petitioner and Ms. M. S. Lata Krishnamurti appearing on behalf of contesting respondent.
2. This case has a story to tell. There is a house situated in Ghaziabad owned by Smt. R. Balamma who is the defendant-respondent in this case. She was a Government servant who after retirement moved for Delhi for sometime and for her own house in Ghaziabad, she made the present petitioner a caretaker and permitted him to use a portion of the disputed house. The petitioner is an employee of the Jal Nigam, i.e., to say a Government employee and bureaucrat and it cannot be said that he had any dearth of the Government accommodation.
3. Nevertheless the caretaker changed his mind and tried to spread all over the house in dispute by setting up a claim that he was in fact a tenant in the disputed premises. When the landlord asked the said caretaker to give back the portion in her house, instead, the caretaker filed a suit for injunction together with an application under Order XXXIX, Rule 1 C.P.C. which was allowed in favour of the plaintiff-petitioner. Being aggrieved with the injunction order, the landlord moved an appeal and in which the appellate court while passing the order came to the conclusion that the so-called caretaker (petitioner) was unable to establish his status as a tenant. The appellate court while examining the case in hand further came to the conclusion that status of a caretaker would not change and it would remain so long he remain in possession over the portion in the disputed house. The only nomenclature which the caretaker could be given to was that of a trespasser or an 'unauthorized occupant' as defined in Section 2A of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act, 1972).
4. The appellate court also recorded that even though till the time of passing the order by the appellate court, he had enjoyed possession and use of the portion of house for the last ten years ; his status would still be that of a caretaker and therefore a prima facie case could not be established by the plaintiff for the grant of injunction. As such the appellate court quashed the order of the trial court vide its order dated 29.11.1997 which is under challenge in the present proceedings.
5. Sri Sankatha Rai has argued that it is a well-settled principle of law that where there is 'settled possession' there even a trespasser will not be evicted from a premises except in accordance with 'due process of law'. For this purpose, he has relied on two decisions of the Hon'ble Supreme Court in Krishna Ram Mahale v. Shobha Venkat Rao and also Rame Gowda v. M. Varadappa Naidu 2004 All CJ 632 and in para 9 of the reports, where it has been held by the Hon'ble Supreme Court that 'settled possession' could not be disturbed without recourse to following the procedure established by law in cases of eviction. There can be no quarrel with the proposition of law as settled in these decisions but the facts of the case are completely distinguishable.
6. Having perused the judgment and having examined the facts and circumstances of the case, I am of the opinion that the cases cited above have no application to the case in hand. It cannot be said that the present petitioner had 'settled possession' over the house in dispute for the reason that the Hon'ble Supreme Court, has also held that a trespasser can maintain his possession against the whole world, except the original owner. Therefore the argument as advanced by the Sri Rai that even if the petitioner was to be considered as trespasser, he could not be ousted except in accordance with law cannot be accepted.
7. Indeed the very suit filed by the trespasser was not maintainable in the eyes of law. The law cannot protect a trespasser in such a manner against the real owner.
8. Learned counsel for the respondent Ms. Krishnamurti has vehemently opposed the arguments made by the learned Counsel for the petitioner and she argued that the petitioner was never a tenant of the said disputed house. She has further argued that scheme of Act, 1972 lays down a complete procedure for inducting persons as tenants, receiving rents and receipts etc.
9. In the present case, learned Counsel for the respondent has argued that the petitioner was never co-opted as a tenant under the provisions of Act, 1972 and does not have any order of allotment in his favour under the Act, 1972 itself. This fact has also not been established by the petitioner. The learned appellate court has, in fact, endorsed this argument in favour of the landlord that during the course of proceedings, the plaintiff-petitioner could not show any order of allotment in his favour or any rent receipt's etc. to establish him in the status of tenant.
10. Learned Counsel for the respondent has next argued that even if accepting that rent receipts were not issued by the landlord, then it was upon to the plaintiff-petitioner to have deposited the rent so due under the provisions of Section 30 of the Act, 1972, which was not done. Therefore the petitioner failed to establish that he was a tenant of the premises in dispute.
11. In support of her arguments as advanced above, learned Counsel for the respondent has relied on the case in Atma Ram v. Shakuntala Rani , in which the Hon'ble Supreme Court has held that in rent proceedings where the Statute provides for procedures to be followed in certain manner then it has to be done in that manner alone.
12. Learned counsel for the respondent has next argued that the petitioner failed to establish that he had ever deposited the rent in Court under the provisions of Section 30 of the Act, 1972. Her contention is well founded. Learned counsel for the respondent has also argued that in case the petitioner who is a trespasser and at utmost an unauthorized occupant under the provisions of Section 2A of the Act, 1972 was allowed to apply for an interim injunction or permanent injunction, it would amount to grant of an unenforceable right. This would result in getting the very purpose of the Act frustrated and would result in gross injustice. She argued that such an injunction could not be granted but it has to be refused. In support of this argument, the learned Counsel for the respondent further relies on the decision of this Court in Shafaqat Hussain v. District Judge Moradabad 1999 (4) AWC 2.139 (NOC) : 1999 (37) ALR 379, where the Hon'ble Court has held that when anybody occupies a premises without an allotment order under the Act, he would not only be an 'unauthorized occupant' but also liable to prosecution under Section 31 of the said Act. It has further been held by this Court that letting out of premises under the Act can only be done under Sections 11 and 13 of the Act. I quote para 17 of the said decision :
17. In the present case, it is not alleged that the petitioner had come to possess the house by virtue of an allotment order. Therefore, his occupation is unauthorized and as such, unenforceable in law. No injunction can be obtained by virtue of an unenforceable right. Then again if injunction is granted then it would frustrate Sections 11, 13, 16, 17 and 31 of the 1972 Act. An occupation for which a person is liable to conviction does not make out a prima facie case. A contract which is void by reason of operation of law or is otherwise prohibited in law, cannot, lend support to establish a prima facie case to press for injunction. Court cannot support illegality.
The contention as raised by the learned Counsel for the respondent also has a force in it and therefore is accepted by this Court.
13. Learned counsel for the respondent has next relied on a decision of this Court in Mohal Lal Mehra v. State of U.P. and Ors. 1995 (1) ARC 553, in which this Court has very strongly observed that there are land mafias who are indulging in house grabbing in the country. This case is of the bureaucrat who has made an attempt to do so. He has stayed in premises in dispute for last twenty years thereby though only being caretaker of the premises in dispute and has dragged the old lady to the Court and had successfully thwarted her attempt to get the property back, even though it cannot be said that the petitioner who is a Government servant does not have means to find other suitable residential accommodation.
14. In view of the above observation, I am of the opinion that the appellate court has rightly come to the conclusion that the plaintiff-petitioner could at most be given the status of 'unauthorized occupant' within the meaning of Section 2A of the Act, 1972.
15. In view of the provisions of Section 2A of the Act of 1972 aforesaid, I think it would be appropriate that the petitioner vacates the residential premises and hand over the vacant/peaceful possession of the disputed premises to the landlord within a period of three months from today. The authorities under the Act of 1972 shall assist the landlord in receiving the peaceful possession with regard to the premises in dispute. The rent of the disputed premises for the unauthorized use and occupation by the petitioner the last so many years together with damages, if claimed by the respondent, shall be determined and recovered and be paid to the landlord by the authorities under the Act, 1972.
16. The impugned order dated 29.11.1997 is hereby upheld.
17. The writ petition is dismissed as above. There shall be no order as to costs.