Babu Lal Vs. Sheonath Das [1966] INSC
263 (13 December 1966)
13/12/1966 BACHAWAT, R.S.
BACHAWAT, R.S.
SHELAT, J.M.
CITATION: 1967 AIR 1329 1967 SCR (2) 241
ACT:
U.P. (Temporary) control of Rent and Eviction
Act, 1947, ss. 7(2),7A(1) & (2)--Landlord securing decree against
tenant--Collector allotting accommodation to another person--Landlord entering
into arrangement with tenant to continue his tenancy--Powers of Collector to
make new allotment and to evict tenant.
HEADNOTE:
The appellant was a tenant of respondents 2
& 3 in Varanasi.
The said landlords obtained a decree for
ejectment of the tenant from the accommodation, Exercising the Collector's
powers under s. 7(2) of the U.P. (Temporary) Control of Rent
Officer passed an order directing the landlords
to let the accommodation to respondent No. 1. However, subsequent to this
order, the landlords allowed the appellant to continue as tenant on enhanced
rent. The Assistant Rent Control & Eviction Officer thereupon started
proceedings under s.
7A(1) of the Act. He passed an order under s.
7A(2) directing the appellant to vacate the accommodation. The appellant filed
a writ petition but failing to get relief from the High Court, he filed a suit
asking for a declaration that the orders passed by the Assistant Rent Control
& Eviction Officer were without jurisdiction. The trial court dismissed the
suit, the appellate court decreed it., but on second appeal the High Court
restored the decree of the trial court dismissing the suit. The appellant was
granted special leave to appeal to this Court.
It was urged on behalf of the appellant (i)
that the District Magistrate had no powers to pass the order of allotment under
s. 7(2) till the accommodation had fallen vacant, (ii) that even if he had the
power the order would take effect only when the accommodation fell vacant and
(ii) that the proceedings under s. 7A were without jurisdiction as there was no
contravention of the order under s. 7(2).
HELD : (i) The District Magistrate can pass
an order under s. 7(2) not only when the accommodation is or has fallen vacant
but also when it is about to fall vacant. In the present case both the landlord
and the tenant had made statements that the accommodation was about to fall
vacant.
On the materials on the record there could be
no doubt that the accommodation was about to fall vacant when the District
Magistrate passed the order under s. 7(2). [243 D-E] (ii) The order under s.
7(2) directed the landlords to let the accommodation to the allottee. The order
took effect immediately. It could not be said that the order would take effect
only when the accommodation actually fell vacant.
[244 A-B] (iii) After the allotment was
passed, the landlords agreed to accept the appellant as a tenant at enhanced
rent.
This letting and the continuance of
occupation by the appellant under it were in direct breach of the allotment
order. There was thus a contravention of the order and the District Magistrate
had therefore jurisdiction to initiate proceedings under sub-section (1) of s. 7A
and to pass the orders under sub-sections (2) & (3) of s. 7A. [244 D-F]
1Sup. CI/67-2 242 & CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2271 of
1966.
Appeal by special leave from the judgment and
decree dated the February 12, 1965 of the Allahabad High Court in Second Appeal
No. 2862 of 1963.
B. C. Misra, M. V. Goswami, and B. R. G. K.
Achar, for the appellant.
J. P. Goyal and H. K. Puri, for the
respondent No. 1.
The Judgment of the Court was delivered by
Bachawat, J. The appellant is the tenant and respondents Nos. 2 and 3 are the
landlords of a non-residential accommodation in a. part of a building in
Mohalla Bulanala in the city of Varanasi. Respondent No. 1 as the allottee of
the accommodation. Respondent No. 5 is the Assistant Rent Control and Eviction
Officer, Varanasi, authorised by the District Magistrate to perform his
functions under the U.P. (Temporary) Control of Rent and Eviction Act, 1947
(hereinafter referred to as the Act). On February 11, 1956 the landlords
obtained a decree for ejectment of the tenant from the accommodation. As the
tenant was about to vacate the accommodation, on February 20, 1957, respondent
No. 5 passed order under s.. 7(2) of the Act directing the landlords to let the
accommodation to respondent No. 1. On February 22,.1957, the landlords and the
tenant agreed that the tenant would continue to occupy the accommodation at an
enhanced rent and would be liable to eviction in execution of the decree for
ejectment in the event of his failing to pay the outstanding arrears of rent in
certain stated installments. As the tenant failed to pay the agreed installments
of rent, on May 21, 1957, the landlords in execution of the decree for
ejectment obtained an order from the executing court for the issue of a warrant
for delivery of possession. In the meantime on 'February 23, 1957, proceedings
were started against the appellant under S.
7A(1) of the Act. By an order dated March 23,
1957, under S. 7A(2) respondent No. 5 directed the tenant to vacate the
accommodation by March 24, 1957. By another order dated December 2, 1957, under
S. 7A(3) respondent No. 5 directed S.O. P. S. Chowk to evict the tenant and put
the allottee in occupation of the accommodation. The tenant filed a writ
petition challenging the orders of respondent No. 5. The writ petition was
dismissed and the tenant was relegated to a suit. A special appeal from this
order filed by the tenant was also dismissed. On September, 9, 1958, the tenant
filed the present suit asking for a declaration that the orders passed by
respondent No. 5 were without jurisdiction and for consequential reliefs. The
trial court dismissed the suit. The appellate court reversed this decree and
decreed the suit. On second appeal, the High Court restored the decree of the
243 trial court and dismissed the suit. The tenant has now filed this appeal by
special leave.
In this appeal the tenant challenges the
orders passed by respondent No. 5 under sub-s. (2) of 7 and sub-sections (2)
and (3) of s. 7A of the Act. Section 7(2) is in these terms "7. (1) (a)
(b) (c) (2) The District Magistrate may by general or special order require a
landlord to let or not to let to any person any accommodation which is or has
fallen vacant or is about to fall vacant." Under s. 7(2), the District
Magistrate can pass an order in respect of an accommodation which is or has
fallen vacant or is about to fall vacant. The accommodation must either be
vacant or about to fall vacant before he can pass the order under s. 7(2). If
the accommodation is neither vacant nor about to fall vacant, when the order
under s. 7(2) is passed, the order is void and is without jurisdiction.
Counsel for the tenant submitted that the
District Magistrate has no power to pass an order of allotment under s. 7(2)
unless the accommodation is or has fallen vacant.
This submission is based on ,a misconception.
The District Magistrate can pass an order under s. 7(2) not only when the
accommodation is or has fallen vacant but also when it is about to fall vacant.
On the materials oh the record there can be no doubt that the accommodation was
about to fall vacant when respondent No. 5 passed the order under s. 7(2).
Before passing the order, he issued notices
to the landlords and the tenant. On January 5, 1957, the landlords stated
before him in writing that the accommodation was about to be vacated by the
tenant. On January 22, 1957, the tenant stated before him in writing that he
was going to leave the accommodation in a month's time. On February 12, 1957,
the tenant again made a statement before him that he wanted to vacate the shop
as the decree for ejectment had been passed against him. The declared intention
of the tenant that he was about to vacate the accommodation coupled with the
decree for ejectment show that on February 20, 1957, the accommodation was on
the point of becoming vacant or was about to fall vacant. As a matter of fact
in the courts below the appellant did not contend that on February 20, 1957 the
accommodation was not about to fall vacant. His contention was that as the
accommodation had not actually fallen vacant, respondent No. 5 had no power to
pass the order under s. 7(2).
244 Counsel next submitted that even though
respondent No. 5 might have power to pass an order under s. 7(2) when the
accommodation was about to fall vacant, the order could take effect only when
the accommodation fell vacant. We cannot accept this contention. The order
dated February 20, 1957 directed the landlords to lot the accommodation to the
allottee. Respondent No. 5 had power to pass this order.
The order took effect immediately.
Counsel for the tenant submitted that the
proceedings under s. 7A were without jurisdiction. Now the District Magistrate
can take action under s. 7A "where an order requiring any accommodation to
be let or not to be let has been duly passed under sub-section (2) of section 7
and the District Magistrate believes or has reason to believe that any person
has in contravention of the said order, occupied the accommodation or any part
thereof". Counsel submitted that as the tenant was in occupation of the
accommodation before the passing of the order under s. 7(2), he cannot be said
to have occupied the accommodation in contravention of the order. This
contention; is' supported by the decision in Ram Lal v. Shiv Mani Singh and others(1),
but we cannot agree with the broad statement in this case that the continuance
after the allotment order of an occupation previous to the order cannot be an
occupation in contravention of the order. It is a question of fact in each case
whether a person in occupation of the accommodation since before the allotment
order can be said to have occupied the accommodation in contravention of the
order, see A. K. Khandelwal v. Moti Lal Chawla and others.(2) In the instant
case after the allotment order was passed, the landlords agreed to accept the
appellant as a tenant at enhanced rent. This letting and the continuance of
occupation by the appellant under it were in direct breach of the allotment
order. In the circumstances, the appellant can well be said to have occupied
the accommodation in contravention of the order. The respondent No. 5 had,
therefore, jurisdiction to initiate proceedings under sub-section (1) of s. 7A
and to pass the orders under sub-sections (2) and (3) of s. 7A. The propriety
of this order cannot be questioned An this suit.
The appeal is dismissed. There will be no
order as to costs.
G.C. Appeal dismissed.
(1) [1962] A.L.J. 260.
(2) [1964] A.L.J. 20.
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