MOHD. NAZIRversusBECHAND PRASAD AND ORS.

                          MOHD. NAZIR                                           A
                               v.
                     BECHAND PRASAD AND ORS.

                              FEBRUARY 28, 1997

                (M.M. PNCHHI AND K.T. THOMAS, JJ.]                              B

        Rent and Eviction :

        U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972:
                                                                                c
       Ss. 16, 16(4}-Power of District Magistrate to restore possession of the
allottee--Allottee put in possession but subsequently ousted at the instance of
landlord-Application by al/ottee u/s 16(4) for being restored possession of
premises-Held, District Magistrate has not only to put back .in possession the
allottee but is otherwise empowered to pass all consequential or incidental D
orders to maintain possession of the al/ottee.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No: 1711 of
1997.

     From the Judgment and Order dated 1.3.95 of the Allahabad High             E
Court in W.P. No. 35008 of 1994.

        Sunil Kr. Singh for Anil Kr. Jha for the Appellant.

        A.A. Khan for the Respondent No. 1-3.

        The following Order of the Court was delivered :                        F

        Leave granted.

       A building in the town of Banaras was statedly in possession of a
dancing girl; it having been owned by respondent No. 1 herein. That dancer
is stated to have associated with her two musicians to carry on her vocation.   G
That duo is respondent Nos. 2 and 3 herein. All the three respondents are
represented by the same learned counsel. At a point of time, by an
executive drive, all the dancing girls were statedly driven out of the area
where the building in dispute stood located. The building, according to the
claim of the landlord, was not available for regulation of letting. The         H
                                     579
     580                  SUPREME COURT REPORTS                   [1997] 2 S.C.R.

A    authorities concerned took a contrary view and considered that the build-
     ing was lettable. An ordl.'r under Section 16 of the U.P. Urban Buildings
     (Regulation of Letting, Rent And Eviction) Act, 1972 (the Act) was passed
     in favour of the appellant herein - Mohd. Nazir - on 17.5.19(2 in respect
     of the above-mentioned building. According to him, he was put in posses-
     sion of the property in pursuance of the allotment order but he was ousted
B    therefrom by the landlord and the dancing girl with her two musicians were
     put back in possession. The dancing girl is now dead and it is the musicians
     who continue to be in possession of the building under the protective
     umbrella of the landlord.

.C       In such distress, the appellant moved the District Magistrate under
  Section 16(4) of the Act for being restored possession thereof or, in other
  words, to be again put in its possession. The District Magistrate spurned
  his request on the footing that the law enjoined the allottee being put in
  possession of the building only once and that that obligation the District
D Magistrate had duly fulfilled. It was taken that in the eye of law, the
  appellant was in possession over the property. On such view taken, the
  appellant was constrained to move the Civil Court against the landlord
  seeking restoration of possession of the building. The Civil Court recorded
  a finding that since the appellant was never put in possession, the question
  of restoration could not and did not arise. Shielded with that finding, the
E appellant again approached the District Magistrate under Section 16(4) of
  the Act, requiring the said Authority to put him in possession as per the
  Civil Court's finding he had never been put in possession. The District
  Magistrate this tim,e allowed the request of the appellant and ordered his
  being put in possession. The landlord and the musicians took up the matter
F in revision before the District Judge who confirmed the order of the
  District Magistrate. The High Court, however, in writ proceedings at the
  instance of the landlord and the musicians, upset the order of the District
  Magistrale, taking the view that the District Magistrate had no power to
  reinstate the appellant in possession when earlier, as per averment, posses-
G sion had been delivered to the appellant. Further, the view taken was that
  the. Civil Court's judgment was not binding on the District Magistrate and
  that the doctrine of res judicata was applicable.


           The reasons advanced by the High Court in upsetting the valid and
H just orders of the District Magistrate were totally out of tune -of the
                          NAZIR v. BECHAND PRASAD                         581

    requirements of Section 16(4) of the Act. The said provision reads as A
    follows :

                "(4) Where the allottee or the landlord has not been able to
             obtain possession of the building, allotted to him or, as the case
             may be, released in his favour, or any part thereof, the District
             Magistrate, on an application of the allottee or the landloard, as B
             the case may be, may by order evict or cause to be evicted any
             person named in the order as well as every other person claiming
             under him or found in occupation, and may for that purpose use
             or cause to be used such force as may be necessary and put or
             cause to be put the allottee or the landlord in possession of the C
             building or part."

           It is plain from the language employed in the provision that the
    District Magistrate is not only required to put the allottee in possession if
    he has not been able to obtain possession of the building allotted to him,
    he is eminently required to see that the allottee remains in possession D
    without let or hindrance from the landlord or his henchmen, as otherwise
    the right conferred under sub-section (4) of Sec. 16 would be illusory and
    be a breeding ground for unnecessary litigation. It would in a sense upset
    the entire scheme of the Act if mighty landlord, or some people at his
    behest, can have their way in ousting the tenant and the District Magistrate E
    not helping him retain it. Beyond this, we consider it unnecessary to go into
    this aspect of the matter. The District Magistrate has not only to put back
    in possession the allottee but is otherwise empowered to pass all conse-
    quential and incidental orders to maintain possession of the allottee. In the
    wake thereof, the High Court committed an error in upsetting the just, legal
    and equitable orders of the District magistrate. In this view of the matter, F
    we unhesitatingly upset the impugned order of the High Court and restore
    that of the District Magistrate, requiring the appellant to be put in posses-
    sion of the building forthwith by evicting the unauthorised occupants/con-
,   testants. No question of res judicata arises in the fact situation.

           The appeal is thus allowed. No costs.
                                                                                G

    R.P.                                                     Appeal allowed.