Babu Singh Chauhan Vs. Rajkumari Jain
& Ors  INSC 12 (1 February 1982)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
MISRA, R.B. (J)
CITATION: 1982 AIR 810 1982 SCR (3) 114 1982
SCC (1) 520 1982 SCALE (1)135
CITATOR INFO :
R 1984 SC1376 (7) R 1987 SC 22 (7)
U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972-Sections 16(1) (b) and 17(2)-Scope of.
Section 16(1) (b) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972 empowers the District
Magistrate to release the whole or any part of a building or any land
appurtenant thereto, in favour of the landlord. Section 17(2) provides that
where a part of a building is in the occupation of the landlord for residential
purposes or is released in his favour under section 16(1) (b) for residential
purposes the allotment of the remaining part thereof under clause (a) of
sub-section (1) shall be made in favour of a person nominated by the landlord.
On intimation from the tenant that he was
vacating the premises, the rent control authority allotted them to the
appellant without informing the landlady about the allotment. On appeal the
District Judge cancelled the allotment made in favour of the appellant The
landlady then made an application for delivery of possession of the premises.
This application was rejected on the ground that she had not applied for
release of the accommodation. Her application under section 16(1) (b) for
release of the premises was rejected and the accommodation was re-allotted to
the appellant. The District Magistrate affirmed the order of the rent control
The landlady's writ petition impugning the
orders of the courts below was allowed by the High Court. The case was remitted
to the courts below for reconsideration afresh of the question of allotment.
In appeal to this Court it was contended on
behalf of the appellant that since the landlady was not in actual physical
possession of the premises neither section 16(1) (b) nor section 17(2) had any
application to the facts of this case.
Dismissing the appeal,
HELD: The order of the prescribed authority
allotting the premises to the appellant was without jurisdiction and against
the plain terms of section 17(2) of the Act. The District Judge had rightly
allowed the landlady's appeal and cancelled The allotment to the appellant.
115 The object of the Act is that where a
tenant inducted by the landlord voluntarily vacates the premises, partly
occupied by the landlord, allotment in the vacancy should be made only to a
person nominated by him, the dominant purpose of such provision being to remove
any inconvenience to the landlord by imposing or thrusting on the premises an
unpleasant neighbour or a tenant who invades the landlord's right of privacy.
While empowering the prescribed authority to allot the accommodation, the Act
safeguards the right of the landlord to have a tenant of his choice. [117 B-C,
D] In the instant case if a tenant was thrust on the respondent without
allowing her an opportunity to nominate a tenant of her choice it would violate
the very spirit and tenor of section 17(2). [120 F] Possession by a landlord of
his property may assume various forms: a landlord living outside the town might
retain possession over his property or a part of it either by leaving it in
charge of a servant or by putting his household effects locked up in the
premises. Such occupation would be full and complete possession in the eye of
[119 F] In the instant case from the fact
that the landlady was residing in another town and so was not actually residing
in the premises it could not be said that she was not in possession of the
premises or that she had severed her connection with her own property. [119 G]
The High Court was justified in quashing the orders of the rent control
authority because no attempt had been made to approach the landlady for making
a nomination in respect of the premises vacated by the original tenant. All
that the landlady did was to ask for the release of the premises.
Even if this was refused it was incumbent on
the rent control authority to have fulfilled the requirements of section 17(2)
before making an allotment in favour of the appellant or anyone else. Simply
because the landlady was living outside the town it could not be said that the provisions
of this sub-section would not apply and that the authorities concerned could
make an allotment in favour of any person without giving an opportunity to her
to exercise her privilege to nominate a tenant. [120 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 812 of 1980 Appeal by special leave from the judgment and order dated the
23rd November, 1979 of the Allahabad High Court in Civil Misc. Writ No 479 of
R.K. Garg, V.J. Francis and S.K. Jain for the
Shanti Bhushan, R.K Jain, P.R. Jain and
Pankaj Kalra for Respondent No. 1.
116 The Judgment of the Court was delivered
by FAZAL ALI, J. This appeal by special leave is directed against a judgment
dated November 23, 1979 of the Allahabad High Court allowing a writ petition
quashing the order of the Rent Control and Eviction officer and remanding the
case to him for considering the question afresh in accordance with law and in
the light of the observations made by the High Court.
The appeal involves a short and simple point
but the case appears to have had rather a long and chequered career.
Put briefly, the facts of the case fall
within a narrow compass so far as the points for decision are concerned. The
first respondent, Smt. Rajkumari Jain, inducted Shri Thapalayal as a tenant in
the premises in dispute which are situated in the town of Bijnor. The tenant
intimated his intention to the Rent Control and Eviction officer to vacate the
premises on 25.6.1974 on receipt of the aforesaid application of the tenant a
Rent Control Inspector was directed to visit the spot and after visiting the
same he reported that the premises in question were likely to fall vacant on
9.6.74. The prescribed authority by its order dated 1.6.74 allotted the
premises to the appellant. In fact, the appellant had applied to the authority
on 20.5.74 for allotment of the accommodation to him. It appears that these
proceedings were taken behind the back of the respondent landlady who was not
taken into confidence either by the appellant or by the Rent Control authorities.
It was only after the prescribed authority had allotted the premises to the
appellant and the respondent-landlady came to know of this fact that she moved
the prescribed authority for cancellation of the allotment but her prayer was
Thereafter, the landlady filed an appeal
before the Additional District Judge, Bijnor which was allowed and the
allotment in favour of the appellant was cancelled on the ground that the
provisions of s. 17(2) of the U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (hereinafter referred to as the 'Act') were not
complied with. Before narrating further sequence of facts, it may be necessary
to examine the relevant provisions of the Act. Section 17(2) of the Act may be
"Where a part of a building is in the
occupation of the landlord for residential purposes or is released in his
favour 117 under clause (b) of sub-section (1) of Section to for residential
purposes, the allotment of the remaining part thereof under clause (a) of the
said sub-section (1) shall be made in favour of a person nominated by the
landlord " A perusal of this statutory provision would clearly disclose
that the object of the Act was that where a tenant inducted by the landlord
voluntarily vacates the premises, which are a part of the building occupied by
the landlord, an allotment in the vacancy should be made only to a person
nominated by the landlord. The dominant purpose to be subserved by the Act is
manifestly the question of removing any inconvenience to the landlord by
imposing or thrusting on the premises an unpleasant neighbour or a tenant who
invades the right of privacy of the landlord. It is obvious that if the tenant
has vacated the premises by himself and not at the instance of the landlord,
there is no question of the Landlord occupying the said premises because he has
got a separate remedy for evicting the tenant on the ground of personal
necessity. The statute, however, while empowering the prescribed authority to
allot the accommodation, safeguards at least the right of the landlord to have
a tenant of his choice.
In the instant case, the admitted position
seems to be that when the prescribed authority allotted the premises to the
appellant, the landlady was not taken into confidence nor was she asked to
induct either the appellant or somebody else as the tenant of the premises
which were likely to fall vacant or which may have fallen vacant. This was
undoubtedly an essential requirement of the provisions of s. 17(2) of the Act
as extracted above. In these circumstances, there could be no doubt that the
order of the prescribed authority allotting the premises to the appellant was
completely without jurisdiction and against the plain terms of s. 17(2) of the
Act. It was in view of this serious legal infirmity that the District Judge
allowed the appeal filed by the landlady on 27.1.1976 and cancelled the
allotment of the accommodation to the appellant. On 2.2.76 the landlady herself
filed an application before the District Magistrate, Bijnor for delivery of
possession of the said premises to her but the District Magistrate rejected the
application by his order dated 8.3.76 on the ground that as the landlady had
not applied for release of the accommodation, she could not be allotted the premises
straightaway. On 5.4.76 the District Supply officer, Bijnor directed the
counsel for the landlady to nominate a person 118 for allotment of the
premises. As against this, the landlady applied for release of the
accommodation to her in terms of the provisions of s. 16(1) (b) of the Act
which runs thus:
"16. Allotment and release of vacant
(1) Subject to the provisions of this Act,
the District Magistrate may by order:
(a) xx xx (b) release the whole or any part
of such building, or any land appurtenant thereto, in favour of the landlord
(to be called a release order)." The prayer of the landlady under s. 16(1)
(b) also appears to have been ignored by the Rent Control authorities and by an
order dated 15.4.76, the District Supply officer re-allotted the accommodation
to the appellant. This led the landlady to file another appeal before the
Additional District Judge, Bijnor who by his Order dated 21.9.77 rejected the
plea of the landlady, dismissed the appeal and confirmed the order of allotment.
The respondent-landlady there upon filed a writ petition in the High Court
challenged the orders of the District Supply officer as also of the District
Judge who had affirmed that order and confirmed the order of allotment in
favour of the appellant.
The High Court by the impugned order allowed
the writ petition and sent the matter back to the Rent Control and Eviction
officer to consider the question of allotment afresh in view of the
observations Made by the High Court.
The appellant then obtained special leave of
this Court against the order of the High Court and hence this appeal before us.
In support of the appeal, Mr. Shanti Bhushan,
learned counsel for the appellant submitted that the High Court had no
jurisdiction to interfere with the concurrent finding of fact given by the
District Supply officer and the District Judge confirming the allotment in
favour of the appellant and that too in a writ jurisdiction. He also submitted
that the landlady was not at all in actual physical possession of the premises
and had been living outside Bijnor and, therefore, neither the provisions of s.
16(1) (b) nor those of s. 17(2) of the Act would apply to the facts of the
present case. On the other 119 hand, the counsel for the respondent submitted
that initially the only question before the Rent Control Authority was whether
the allotment should be made to the appellant even though he was not nominated
by the landlady under s. 17(2) of the Act. It is common ground that the
appellant was not a nominee of the landlady and, as discussed above, the
District Judge in his first order had quashed the allotment on the ground that
the provisions of s. 17(2) had not been complied with.
It was also argued on behalf of the
respondent-landlady that the circumstances having changed, she now wanted to
stay in Bijnor permanently and as she wanted additional accommodation she had
applied to the District Magistrate under s. 16(1) (b) for releasing the
building in her favour.
This application was not at all considered on
merits by the District Magistrate or by any court for that matter. If the
respondent could succeed in convincing the District Magistrate that a case for
release of the entire building was made out, then the question of allotting the
premises to the appellant would not have arisen at all.
We have gone through the judgment of the High
Court in the light of the arguments of the parties and we are inclined to agree
with the view taken by the High Court that the mere fact that the lady did not
actually reside in the premises which were locked and contained her household
effects, it cannot be said that she was not in possession of the premises so as
to make s. 17(2) inapplicable. Possession by a landlord of his property may
assume various forms. A landlord may be serving outside while retaining his
possession over a property or a part of the property by either leaving it
incharge of a servant or by putting his household effects or things locked up
in the premises. Such an occupation also would be full and complete possession
in the eye of law.
It was further argued by Mr. Shanti Bhushan
that the landlady had absolutely no reason to stay in Bijnor because she was
staying with her son in some other town. That by itself is hardly a good ground
for the landlady who was a widow to sever her connections with her own
Moreover, we do not want to make any
observations on the merits of this matter as the High Court has rightly
remanded the case for a fresh decision on all the points involved.
So far as the second point is concerned,
Viz., the question of allotment of the premises to the appellant, the High
Court was fully 120 justified in quashing the order of the District Supply
officer as affirmed by the District Judge because despite several opportunities
no attempt had been made to approach the landlady to nominate a tenant. There
is no evidence to show that either the prescribed authority or the Rent Control
and Eviction officer ever approached the landlady for making a nomination in
respect of the premises vacated by the original tenant and she refused to do
so. All that the landlady did was to ask for the release of the premises but
even if this was refused it was incumbent on the Rent Control authorities to
have fulfilled the essential conditions of s. 17(2) of the Act before making
any allotment in favour of the appellant or for that matter any other person.
It was suggested that as the landlady was not living 4 in the premises which
were locked up, section 17(2) did not apply. We have already rejected this
argument because even occupation of a part of a building by the owner which she
may visit off and on is possession in the legal sense of the term and,
therefore, it cannot be said that the provision of s. 17(2) would not apply and
that the Rent Control authorities could make an allotment in favour of any
person without giving an opportunity to the landlady or the landlord to
exercise her/his privilege of nominating a tenant.
We have already pointed out that the object
of the Act seems to be to arm the owner with the power of nomination so as to
protect him/her from unpleasant tenants or indecent neighbours who may make the
life of the owner a hell.
Moreover, the conduct displayed by the
appellant in this case clearly shows that if he was thrust on the respondent without
her being allowed an opportunity to nominate a tenant, it will violate the very
spirit and tenor of s. 17(2) of the Act.
As we are of the opinion that the order of
the High Court has to be upheld we refrain from making any further observations
on the merits or any aspect of the matter which have to be gone into afresh as
directed by the High Court.
We find no merit in this appeal which is
dismissed with costs quantified at Rs. 1,000/- (Rupees one thousand only.).
P.B.R. Appeal dismissed.