Chimandas Bagomal Sindhi Vs. Jogeshwar
& ANR  INSC 305 (8 November 1962)
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1963 AIR 1233 1963 SCR Supl. (1)
Letting of Houses and Rent Control-Provisions
for collection of information and letting of accommodation-Construction of-
Displaced person-Meaning-Central Provinces and Berar Letting of Houses and Rent
Control Order, 1949, cls. 22, 23, 24, 24A 13, 2(2).
The respondent had let out his house to a
firm against whom he obtained permission from the Rent Control Authority to
terminate the tenancy on the ground of arrears of rent.
Meanwhile, the tenant intimated to the
respondent by telegram that he had vacated the premises, but prior to the
receipt of the telegram, the appellant bad applied to the Additional Deputy
Commissioner that since the premises were likely to fall vacant, they should be
allotted to him as he was a displaced person, and provisional allotment was
made in his favour and he continued to be in possession since then. The
respondent then moved for the cancellation of the said allotment on the ground
that he needed the premises for his own use, but the allotment was confirmed in
favour of the appellant by, the Additional Deputy Commissioner. The respondent
then filed a writ petition in the High Court for cancellation of the said
order, which was set aside and the case was remanded for disposal in accordance
against this the appellant filed a Letters Patent
On remand the earlier order was confirmed by
the Additional Deputy Commissioner, against which the respondent filed another
writ petition in the High Court. The Letters 969 Patent Appeal and the
subsequent writ petition were heard together and the High Court allowed the
writ petition and set aside the order of allotment in favour of the appellant
on the ground that as soon as it appeared that the appellant had a place of
business of his own, he ceased to be a displaced person within the meaning of
cl. 23(1) and the other relevant clauses.
Held, that cl. 23(1) refers to the persons in
the specified categories and empowers the Deputy Commissioner to make an order
of allotment in their favour. There are no terms of limitation qualifying the
said persons and the scheme of the relevant provision does not seem to
contemplate any such limitation. Clause 23(1), as well as cls. 24 and 24A do
not necessarily exclude the cases of persons specified in them on the ground
that the said persons already have an accommodation of their own and the High
Court was in error in assuming that the provisions of cis. 23(1),24 and 24A
impliedly postulated that the persons belonging to the respective categories
specified by them could receive allotment only if they had no previous
accommodation of their own.
Held, further, that after remand the
Additional Deputy Commissioner did not properly appreciate the scope and effect
of the provision contained in the relevant clause and he took an unduly narrow
view of the limits of the enquiry which he was bound to hold as a result of the
remand order and that has vitiated his final conclusion.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Appeal by special leave from the judgment and
order dated June 18, 1958, of the Bombay High Court, Nagpur, in Misc. Petn. No.
391 of 1956.
M.C. Setalvad, Attorney-General for India, S.
N. Andley, and Rameshwar Nath, for the appellant.
S.N. Kerdekar, N. K. Kherdakar and A. G.
Ratnaparkhi, for the respondent No. 1.
1962. November 8. The judgment of the Court
was delivered by 970 GAJENDRAGADKAR J.-This appeal raises a' short question
about the construction of clauses 23, 24 and 24-A in The Central Provinces and
Berar Letting of Houses and Rent Control Order, 1949 (hereinafter called the Order).
jogeshwar s/o Parmanand Bhishikar (hereinafter called the respondent) owns a
house known as the Bhishikar Bhawan in Nagpur. Block No. 2A had been let out by
him to a firm known as the Dayalbagh Stores for carrying on business. Since the
tenant was in arrears as to rent,, the respondent obtained from the Rent
Control Authorities permission to terminate the said tenancy. Meanwhile, the
tenant intimated to the respondent by telegram on July 24, 1955, that it had
vacated the said premises on that day. Prior to the receipt of this telegram,
however, the appellant Chimandas Bagomal Sindhi had made an application to the
Addl. Dy. Commissioner, Nagpur, on July 15, 1955, that the premises occupied by
the said tenant were likely to fall vacant, and prayed that the same should be
allotted to him as he was a displaced person within the meaning of the Order.
The Addl. D. C. passed an order of provisional allotment in favour of the
appellant on the same day and since then, the appellant has been in possession
of the said premises.
The respondent then came to know about the
said provisional allotment and gave intimation to the Addl. D. C. that he
needed the, premises for his own purposes, and so, he moved for the
cancellation of the said provisional allotment order. On July 23, 1956, the
Addl. D. C. purporting to exercise his powers under clause 23 (1) of the Order
confirmed the provisional allotment in favour of the appellant.
The respondent then moved the Nagpur High
Court by a writ petition No. 307 of 1955 for cancellation of the said order.
On April 10, 1956, Mr.Justice Bhutt set aside
the order of allotment and remanded the case for disposal in accordance with
971 law. That is how the first stage of this dispute came to an end.
On remand, the Addl. Dy. Commissioner
confirmed the earlier order. He held that the respondent did not need the
premises for his own occupation and he thought that there was no going back on
the earlier provisional order of allotment in favour of the appellant. This
second order was challenged by the respondent by another writ petition filed in
the Nagpur High Court (No. 391 of 1956). Meanwhile, the appellant had filed a
Letters Patent Appeal (No. 95 of 1956) against the decision of Bhutt, J., on
the earlier writ petition filed by the respondent. By consent, the said Letters
Patent Appeal and the subsequent writ petition filed by the respondent were
heard together by a Division Bench of the High Court. 'The Division Bench has
set aside the order of allotment passed in favour of the appellant and allowed
the subsequent writ petition filed by the respondent. It is against this order
that the appellant has come to this Court by special leave.
It appears that after remand, the respondent
.brought it to the notice of the Addl. D. C. that the appellant owned As.- /4/-
share in the Hind Vastra Bhandar and that he had, therefore a place where he
could carry on his business.
This allegation was repeated by the
respondent in his second writ petition and it was urged by him that in view of
the fact that the appellant had a place of business of his own, he was not
entitled to the accommodation alloted to him by the impugned order. This plea
was met by the appellant on the ground' that the business mentioned by the
respondent bad been dissolved. From the affidavit filed by the appellant in
that behalf it does appear that the appellant had a share in the Hind Vastra
Bbandar and Krishna Watch Co.. both of which Partnerships carried on their
business at Nagpur, but on 972 April 8, 1957 the said partnerships had been
dissolved and so, after the said date of dissolution there was no place of
business to which the appellant could lay any claim. In support; of this plea,
the appellant has filed the deed of Dissolution in question., The High Court
has held that reading the definition of the words "displaced person
prescribed by clause 2 (2) together with the relevant clause of the Order under
which the impugned allotment had been made in favour of the appellants it must
be, held that the appellant was not a displaced person and as such, he was not
entitled to the said allotment. That is how the main point which arises for our
decision in the present appeal is 'about the construction of the said relevant
clauses of the Order.
The order had been passed by the Government
of the Central Provinces, and Berar by virtue of the powers conferred on it by
section 2 of the Central provinces and Berar Act No. XI of 1946. Sub-clause
(2)of clause 2 defines A displaced person as meaning any person who, on account
of the setting up of the Dominions of India and Pakistan, or on account of
civil disturbances or fear of such disturbances in any area now forming part of
Pakistan has been displaced from or has left his place of residence in such
area after the 1st day of March, 1947, and who has subsequently been residing
in India. The Appellant claims to be such a displaced person.
Clause 13 provides, inter alia, that the
landlord would be entitled to claim ejectment of his tenant if he shows that he
needs the house or portion thereof for the purpose of his bona fide residence,
provided he is not occupying any other residential house of his own it the city
or town concerned.
He can also obtain: ejectment of his tenant
if it is shown that the,, tenant has secured alternative accommodation or has
left the area for a continuous 973 period of four months and does not
reasonably need the house.
Clauses 22 to 27 form part of Chapter III
which deals with the collection of information and letting, "of
accommodation. Clause 22 (1) provides that every landlord of a house situate in
an area to which this Chapter applies, shall give intimation about the
impending vacancy as specified by sub-clauses (a) and (b). s Clause 22 (2) lays
down that no person shall occupy any house in respect of which this Chapter
applies except under an order under sub- clauses (1) of clause 28 or clause,,
24 or on an assurance from the landlord that the house is being permitted to be
occupied in accordance with sub-clause (2) of clause 23.
It would thus be noticed that all vacancies
occurring in houses governed by' Chapter III have to be filled in the manner
specified by clause 22 (2).
Clause 23(1) provides that on receipt of the
intimation under; clause 22, the, Dy. Commissioner may within fifteen days from
the date of receipt of the said intimation, order the landlord to let the
vacant house to any person holding an, office of profit under; the Union or
State Government or to any Person holding it post under the Madhya Pradesh
Electricity Board, or to a displaced person or to an evicted, person and
thereupon..' notwithstanding any agreement to the contrary, the landlord shall
let the house to such person and place him in possession thereof immediately,
if it is vacant or as soon as it becomes vacant. The proviso to this sub-clause
gives right to the, landlord to plead that he needs the house for his own
occupation, and if such a plea is accepted by the Dy. Commissioner, the
landlord would, be allowed to occupy the same. In other words, in cases falling
under clause 23 (1) before the D.C.makes an order directing the landlord to let
the house to one of the persons specified. in the different categories by that
clause, it would be open to the landlord to urge 974 his own need and if that
need is established, an order' under clause 23(11) would not be passed against
him. Clause 23(2) provides that if no-order is passed and served upon the
landlord within the period specified in sub-clause (1), he shall be free to let
the vacant house to any person.
Clause 24 provides for the penalty for
noncompliance with the. requirements of clause 22(1). Under this clause, the
Dy. Commissioner is empowered to order the landlord to let the house forthwith
to any of the persons falling under the categories specified by that clause.
Since the power conferred on the D. C. to make an order under this clause is
intended, in a sense, to punish the landlord for his contravention of clause
22, it prima facie appears that the landlord is not given an opportunity to'
prove his own need as under the proviso to 23 (1).
Clause 24-A deals with cases where the Dy.
Commissioner receives information to the effect that a house is likely to
become vacant or available for occupation by a particular date ; and in such
cases it empower.% the Dy. Commissioner to, make an,. order on the same lines
as provided by clause 23(1). This clause lays down that the order passed under
it shall be complied with by the landlord unless the house does not become
vacant or available for occupation within one month from the date of receipt by
him of the said order, or the landlord applies for the cancellation of the said
order stating his grounds thereof. This provision means that an order passed
under clause 24A can be challenged by the landlord by pleading that he needs
the premises for himself That, in brief, is the scheme of the relevant
The High Court has taken the view that in
allotting the premises in question to the appellant' the Addl. D. C. has failed
to notice the fact that on July 15, 1955, when the provisional allotment order
975 was passed, the appellant had a place of business of his own inasmuch as-he
was a 4 annas sharer in a partnership which had its place of business.
According to the High Court, as soon as it appeared that the appellant had a
place of business of his own, he ceased to be a displaced person within the
meaning of clause 23(1) and the other relevant clauses. This conclusion
proceeded on the basis that though the appellant may be taken to have satisfied
the requirements of the definition of the expression "displaced
person" under clause 2(2), that definition had to be read in the light of
the context of clause 23(1) and its meaning had to be controlled by the said
context. Clause 2 begins with the words that in this Order, unless there is
anything repugnant in the subject or context, the defined terms will carry the
meaning assigned to them by the respective definitions. The whole object of
enabling the Dy. Commissioner to make an order of allotment in respect of the
persons specified in different categories by the relevant clause, is to provide
accommodation to those persons who were without any accommodation. Since that
object is implicit in the relevant provision, the definition must be construed
in the light of the said implicit assumption of the relevant provision. It is
on this view that the impugned order has been set aside by the High Court.
It may be conceded that prima facie the view
taken by the High Court appears to be attractive. It does appear to be
reasonable that provisions of the kind contained in Chapter III would normally
be expected to assist persons of specified categories to obtain accommodation
and that would impliedly postulate that such persons have, no accommodation
which they can claim their own. If the words of the relevant provision are
ambiguous, or if their effect can reasonably be said to be a matter of doubt,
it may be permissible to construe the said provisions in the light of the
assumption made by the High 976 Court. But, arc the words of the relevant in
any sense ambiguous, or is the effect of those words doubtful? In our opinion,
the answer to these questions must be in the negative.
Clause 23 (1) refers to the persons in the
specified categories, and empowers the D.C. to make an order of allotment in
their favour. There are no terms of limitation qualifying the said persons and
the scheme of the relevant provisions does not seems, to contemplate any such
limitations It 'is significant that the said persons are not entitled as a
matter of right to an order of allotment.
What clause 23(1) does is to confer power on
the D.C. to make an order of allotment if he thought it OX expedient, fair to
do so in a particular case. it is only where an order is made by the D.C. that
an obligation is imposed on the landlord to let the premises to the person
named in the order. Having regard to the words used in describing the persons
"and the categories, it seems plain that the provision Contemplated that a
person belonging to one of those categories may be entitled to claim its
benefit 'on the ground that accommodation already available to him was patently
insufficient or unsuitable.' When such a plea is made, the D. C. may have to
consider it Arid in doing so, "he may have to examine the contentions
raise landlord against such a plea as Well as the claim that the landlord may
make for his own personal occupation. The enquiry which would thus become
necessary would be in the nature of a enquiry and, the power conferred on' the
D.'C. may have to be exercised in a flair and just manner. We do not think that
clause 23 (1) as well as clauses 24 and 24 A necessarily exclude 'the cases 1
of person's specified in them on the grounds that the said persons already have
an accommodation which they can call their own. Persons there specified would
no doubt have a much better claim for accommodation if is shown that they have
no accommodation at all. But 977 even if such persons have accommodation, their
claims cannot be ruled out on the preliminary ground that the very fact that
they have accommodation takes them out of the provisions of the respective
clauses. It is quite true that if a person belonging Ca, to the specified
categories has suitable and sufficient accommodation, he would normally not be
entitled to claim the benefit of clause 23(1). That, however, is a matter to be
considered by the Dy. Commissioner on the merits. We are, therefore, satisfied
that the High Court was in error in assuming that the provisions of clause
23(1) and clauses 24 and 24A impliedly postulate that the persons belonging to
the respective categories specified by them can receive allotment only if they
have no previous accommodation of their own. That being so, we must hold that
the appellant's case cannot be thrown out merely on the ground that he had other
accommodation by virtue of the fact that he was a partner in two concerns to
which we have already referred.
This conclusion cannot, however, finally
dispose of the appeal before us because it seems to us that after the remand
order was passed by Mr. justice Bhutt, the Addl. D.C. has not dealt with the
matter in accordance with law as he was required to do. He appears to have
taken the view that since a provisional order had already been passed, there
was "no going back" upon it. He thought that after remand, the scope
of the enquiry was confined to the examination of the question as to whether
the respondent proved that he needed the premises for his own occupation.
It is true that he has incidentally mentioned
the fact that the appellant owned a -/4/share in the business which was carried
on in Nagpur, but he has added that the said fact does not preclude him from
obtaining a shop for starting a business exclusively of his own. This
observation shows that the Addl. D.C. did not properly appreciate the scope and
effect of the 978 provision contained in the relevant clause. Besides, reading
the order as a whole, it is quite clear that he took an unduly narrow view of
the limits of the enquiry which he was bound to hold as a result of the remand
order and that has vitiated his final conclusion. We, therefore, think that it
is necessary that the matter should be sent back to the Addl. Dy. Commissioner,
Nagpur, with a direction that he should consider the case on the merits afresh.
We wish to make it clear that the question as to whether the appellant should
be given allotment of the premises in question should be determined by the
Addl. D. C. in the light of the position as it stood on July 15, 1955. We are
making this observation because there has been some controversy before us as to
whether the appellant has lost his right in the premises belonging to the
partnership of which admittedly he was a member by reason of the fact that the,
said partnership is alleged to have been dissolved on April 8, 1957. The learned
Attorney-General has contended that if the matter has to go back, the Addl.
D.C. should be free to consider the subsequent events that have taken place,
and the appellant's case should, therefore, be dealt with on the basis that he
has no longer any shares in the said partnerships. We are not inclined to
accept this contention. The fact that the present proceedings have been
protracted would not entitle the appellant to ask the Addl. D.C. to take
subsequent events into account. It is clear that the dissolution of the
partnership took place long after the appellant obtained the provisional
allotment from the Addl. D.C. and it is by no means clear that if the Addl.
D.C. had been then told that the appellant had a place of business of his own,
he would have granted accommodation to him in the present premises on the same
day that he moved him in that behalf. We are satisfied that the question about
the propriety and validity of the said provisional order must be judged in the
light of the facts as they obtained on that day.
979 Mr. Kherdekar for the respondents wanted
to argue before us that under cl. 2(2) the appellant was not a displaced person
on that day and he has relied on the fact that the appellant had been carrying
on business in several places in India, since 1945. This point has not been
considered either by the Addl. D.C. or the High Court. If so advised, the
respondents may take this point before the Addl. D.C.-and we have no doubt that
if raised, it would be dealt with by the Addl. D.C. in accordance with law.
The result is, the appeal is allowed, the
order passed by the High Court on the writ petition is set aside and the matter
is remanded to the Addl. Dy. Commissioner, Nagpur, with a direction that he
should deal with the dispute between the parties afresh in accordance with law.
Costs incurred by the parties so far would be costs in the final order which
may be passed after remand.