Mansaram Vs. S. P. Pathak & Ors
[1983] INSC 138 (29 September 1983)
DESAI, D.A.
DESAI, D.A.
MISRA, R.B. (J)
CITATION: 1983 AIR 1239 1984 SCR (1) 139 1984
SCC (1) 125 1983 SCALE (2)1027
CITATOR INFO :
R 1987 SC1986 (34) RF 1988 SC1841 (8)
ACT:
Central Provinces and Berar Letting of Houses
and Rent Control Order, 1949 Cls. 22, 23, and 25 Occupation of premises by
Government servant under cl. 23(2) on an assurance from landlord-Conditions to
be satisfied before he can be evicted for contravention of cl. 22(2).
HEADNOTE:
The appellant who had taken the premises in
question on lease while he was serving as an employee of the Telephone
Department, continued to be in possession of the same after his retirement in
1967. Respondent No. 1 who was allegedly in need of accommodation, filed an
application before the House Allotment Officer praying for allotment of the
said premises in his favour on the ground that the appellant had occupied the
premises in contravention of cl. 22(2) of the Central Provinces and Berar
Letting of Houses and Rent Control Order, 1949 and that respondent No. 4 who
had inherited the premises from the original landlord was conspiring with the
appellant by letting him continue to live in the premises. Respondent No. 4,
after having once appeared through advocate, withdrew from the proceedings.
The appellant contended that he had not
contravened any provision of the Rent Control Order as he had occupied the
premises on the assurance given by the then landlord that the house was being
permitted to be occupied in accordance with cl. 23(2) thereof, that the
deceased landlord who had tried to obtain possession of the premises during his
lifetime on the ground of bona fide personal requirement had failed in the
attempt and that he had been accepted as the tenant even after his retirement.
The House Allotment Officer rejected the contention and directed the appellant
to deliver possession of the premises to respondent No. 4 holding that the
appellant was liable to be evicted as the letting out of the premises to him by
the landlord and his occupation of the same in 1954, were in contravention of
cl.
22(1) (b) and cl. 22(2) respectively of the
Rent Control Order and further, that having occupied the premises while holding
an office of profit under the Union of India the appellant was not entitled to
continue to remain in occupation of the premises after his retirement from
service. The High Court having dismissed in limine the Special Civil
Application filed by him under Art. 227, the appellant approached this Court.
Allowing the appeal,
HELD:1. According to cl. 22(1) of the C.P.
and Berar Letting of Houses and Rent Control Order, 1949, a landlord is under a
statutory duty to intimate the Collector any existing or impending vacancy in
the premises of which he is the landlord. The object underlying the provision
is to make 140 residential accommodation available to a specified class of
persons mentioned in cl. 23 which includes a person holding an office of profit
under the Union or State Government or a displaced or an evicted person. The
Collector can allot the premises in respect of which he has received an
intimation of vacancy under cl. 22, to anyone belonging to this specified class
and none else. The very enumeration of the class would show that these are
persons who cannot be left to the vagaries of the law of demand and supply of
residential accommodation. It may be that, at any given point of time, no one
from the specified class may be on the waiting list, and therefore cl. 23(2)
permits the landlord to let out such premises to any person if, after 15 days
from the date of intimation of vacancy to the Collector, an order of allotment
is not served upon the landlord. As a sequel to the right to obtain allotment
on the ground of being the holder of an office of profit under Union or State
Government, a corresponding obligation is cast by cl. 25 upon such person to
vacate the premises as soon as he ceases to hold the office or the post which
enabled him to obtain the order of allotment. The legal liability of giving
intimation of vacancy is squarely on the landlord and if he has given such
intimation and the statutory limit of 15 days for making an allotment order has
expired, the landlord can proceed to let out the premises to anyone. In such a
situation, the only duty cast on the tenant is to seek an assurance from the
landlord that the premises are being permitted to be occupied in accordance
with cl. 23(2). [145 E-H; 146 A-B; 147 B-C] In the instant case the order of
the House Allotment Officer is conspicuously silent on the most relevant
question why the allegation of assurance put forward by the appellant was not
examined by him and why it was rejected sub silentio. It was incumbent upon him
to enquire whether the deceased landlord had given intimation of vacancy and
whether any allotment order had been issued within the period of 15 days from
the date of receipt of such intimation. The non-application of mind by the
quasi- judicial authority to this relevant point goes to the root of the matter
and vitiates the order. It was obligatory upon respondent No. 4, who was the
successor-in-interest of the landlord, to prove that no such assurance had ever
been given to the appellant. Instead, the respondent No. 4 remained absent.
Even assuming that the landlord gave a false assurance in 1954 to the
appellant, if the appellant bona fide relied upon such assurance and it was not
shown that the appellant was in league with the landlord, he cannot be accused
of entering the premises in contravention of cl. 23(2). The High Court was in
error in rejecting in limine the petition under Art. 227. The points raised by
the appellant merited a reasoned decision or, at least, a speaking order
briefly indicating why the contentions put forward by the appellant did not
find favour with the High Court. [148 G; 147 D; 148 H; E; 147 F-G; 143 G-H]
2. In order to attract cl. 25 which obligates
the holder of an office of profit to vacate the premises on his ceasing to hold
the office of profit, it must be shown that he entered the premises under an
order of allotment made by the Collector either under cl. 23 or under cl. 24-A.
[149 B] In the instant case, in the absence of an allotment order, it was not
open to the House Allotment Officer to draw an inference that, the premises
were allotted to the appellant because he was holding an office of profit. [149
D] 141
3. Where power is conferred to effectuate a
purpose, it has to be exercised in a reasonable manner and the reasonable
exercise of power inheres its exercise within a reasonable time. [150 F] In the
instant case, power is conferred on the Collector by cl. 28 to see that the
provisions of the Rent Control Order, which disclose a public policy, are
effectively implemented and, therefore, if he comes across information that
there is a contravention, he is clothed with adequate power to set right the
contravention by ejecting anyone who comes into the premises in contravention
of the provisions. No limitation prescribed in this behalf.
But, even if the House Allotment Officer were
to reach the affirmative conclusion that the initial entry of appellant into
the premises 22 years back was an unauthorised entry and that failure to vacate
premises till nine years after retirement was not proper, yet it was not
obligatory upon him to pass a peremptory order of eviction in the manner in
which he has done. It was open to him not to evict the tenant. [150 E-F; G-H]
Murlidhar Aggarwal & Anr. v. State of U.P. & Ors., [1975] 1 S.C.R. 575
and State of Gujarat v. Patel Raghav Natha and Ors.,[1970] 1 S.C.R. 335;
referred to.
4. The appellant had entered the premises in
1954 and there had been numerous proceedings between him and the deceased
landlord; but no one had ever raised the question whether the appellant had
entered the premises in contravention of cl. 22(2). This would permit an
inference that the then landlord had accepted the appellant as his tenant and
his tenancy did not suffer from any infirmity.
Respondent No. 4 who is the successor in
interest of the deceased landlord did not raise any controversy about the
occupation of the premises by the appellant and rent was accepted without
question before and after the death of the original landlord. [149 G-H; 150
A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1262 (N) of 1978.
Appeal by Special leave from the Judgment and
Order dated the 4th July, 1978 of the Bombay High Court (Nagpur Bench) in
Special Civil Application No. 1957 of 1977.
G. L. Sanghi, B. Datta, V. A Boby Shyam
Mudaliar and B.
P. Singh for the Appellant.
B. R. Agarwal. P. G. Gokhale and Miss
Vijayalakshmi for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. Appellant Shri Mansaram son of Shri Chanduram Sharma was serving in
the telephone office at Nagpur and was thus 142 holding an office of profit
under the Union of India. He took on lease premises on a monthly rent of Rs. 75
per month, more particularly described in the application made to the House
Allotment Officer, Nagpur by first respondent Shri S. P. Pathak, from the then
owner of the premises one Shri Basantrai Sharma. He continued to be in
possession even after his retirement from service in 1967. Shri Basantrai
Sharma died and there is a dispute between respondents 3 and 4 and Shri
Prabhakar about succession to the estate of the deceased Shri Basantrai Sharma.
Respondents 3 and 4 claimed to be the legatees under a will of deceased Shri
Basantrai Sharma. Respondent No. 1 Shri S. P. Pathak made an application to
House Allotment Officer, Nagpur registered as Miscellaneous Case No. 51/A-71(2)/76-77
against the present appellant Mansaram alleging that the appellant had occupied
the premises involved in the dispute in contravention of sub-cl. (2) of Clause
22 of the Central Provinces and Berar Letting of Houses and Rent Control Order,
1949 ('Rent Control Order' for short), in that he occupied the premises to
which Chapter III of the Rent Control Order applies without obtaining an order
under sub-cl. (1) of Clause 23 or Clause 24 or without an assurance from the
landlord that the premises are being permitted to be occupied in accordance
with sub-cl. (2) of Clause 23. To this petition, respondent 4 Smt. Usha Rani N.
Sharma was also impleaded as a respondent but after having once appeared
through advocate, she did not prefer to remain present along with her counsel
and the House Allotment Officer proceeded against her ex parte. In the
application made by Shri S. P. Pathak, Ist respondent on December 7, 1976, it
was in terms stated that the appellant Shri Mansaram Sharma was a Government
servant employed in the telephone department at Nagpur and the appellant has
now retired from service and therefore, is not entitled to retain the demised
premises. It was further alleged that the former owner of the premises Shri
Basantrai Sharma has died. The premises have been inherited by respondent 4
Smt. Usha Rani N. Sharma and she and the tenant Mansaram Sharma have conspired
together and are violating the provision of law by letting Shri Mansaram Sharma
to continue to live in the premises. It was further alleged that the appellant
Shri S. P. Pathak was badly in need of premises and therefore, the premises may
be allotted to him.
Appellant Shri Mansram Sharma appeared and
filed a written statement inter alia contending that he occupied the premises
on the assurance given by the then landlord Shri Basantrai Sharma that 143 the
house is being permitted to be occupied in accordance with sub-cl. (2) of
Clause 23. It was further contended that in a proceeding under the Rent Control
Order, that late Shri Basantrai Sharma, the deceased landlord, had sought
possession of the premises on the ground of bona fide personal requirement but
he had lost the same. It was further alleged that Shri S. P. Pathak is a near
relation of Shri Basantrai Sharma and that he has been put forward by Smt. Usha
Rani N. Sharma for seeking a collusive order. It was further alleged that it is
incorrect to say that he occupied the house under any allotment order. It was
further stated that since his retirement in July, 1967, he has been accepted as
tenant and therefore, no proceeding can be taken against him under Clause 28 of
the Rent Control Order for alleged contravention of clause 22.
The House Allotment Officer held that Shri
Basantrai Sharma let out the premises to the appellant in the year 1954 in
contravention of clause 22(1) (b) of the Rent Control Order and the appellant
occupied the premises in contravention of clause 22(2) of the Rent Control
Order and therefore, he was liable to be evicted under clause 28. It was
further held that the appellant had occupied the premises when he was holding
an office of profit under the Union of India and now that he has retired, he is
not entitled to continue in the premises and therefore, also he is liable to be
evicted. Accordingly, the House Allotment Officer by his order dated November
2, 1977 gave a direction to the appellant to vacate the premises within a
fortnight from the communication of the order and deliver the possession of the
premises to Smt. Usha Rani N. Sharma failing which action will be taken under
clause 28(1) of the Rent Control Order.
Appellant filed a Special Civil Application
No. 1957 of 1977 before the Nagpur Bench of the Bombay High Court. A learned
Single Judge dismissed the petition in limine. Hence this appeal by special
leave.
At the outset, we must confess that the
learned Single Judge was completely in error injecting the petition under Art.
227 of the Constitution in limine because various points raised by the
appellant are such that atleast a reasoned decision by the High Court was a
must or atleast a speaking order briefly showing why these contentions did not
find favour with the High Court. At one stage, we were toying with the idea to
remit the matter to the High Court but 144 that would merely be further delaying
the already over delayed proceedings.
Order 22 of the Rent Control Order reads as
Under:
"22(1)-Every landlord of a house
situated in an area to which this Chapter extends, shall- (a) within seven days
from the date of the extension of this chapter, if the house is vacant on such
date; or (b) within seven days from the date on which the landlord becomes
finally aware that the house will become vacant or available for occupation by
himself or for other occupation on or about a specified date; give intimation
of this fact to the Collector of the district in which the area is included or
such other officer as may be specified by him, in the Form given in the
Schedule appended to this Order, and shall not let or occupy the house except
in accordance with sub-clause (2) of clause 23." (2) No person shall
occupy any house in respect of which this chapter applied except under an order
under sub-clause (1) of clause 23 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." Clause 23 provides that within fifteen days
from the date of receipt of intimation of vacancy under Clause 22, the
Collector may order the landlord to let the vacant premises to any person
holding an office of profit under the Union or the State Government or to any
person holding a post under the Madhya Pradesh Electricity Board or to
displaced person or to an evicted person and thereupon not withstanding 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. There is a proviso to clause 23 which provides that
simultaneously while giving intimation of the vacancy, if the landlord intimates
to the Collector that he needs the house which has fallen vacant or is likely
to fall vacant for his occupation, the Collector shall, if satisfied after due
enquiry that the house is so needed, permit the landlord 145 to occupy the
same. This proviso is not relevant for the present purpose. Sub-clause (2) of
Clause 23 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 25 provides that where a person is allotted
the premises and is put in possession thereof by an order under clause 23 or 24
A, his tenancy shall stand terminated amongst others on the date from which he
ceases to hold an office of profit under Union or a State Government etc. and
such person shall vacate such premises within seven days of such date and the
landlord and the tenant shall give the intimation about the same as prescribed
in clause 22 to the Collector in respect of such premises. There is a proviso
which confers power on the Collector to extend the tenancy by a period not
exceeding four months. Clause 28 confers power on the Collector to effectively
carry out the duty and obligation cast on him under Chapter III. Clause 28
reads as under:
"28.(1)-The Collector may take or cause
to be taken such steps and use or cause to be used such force as may, in his
opinion, be reasonably necessary for the purpose of securing compliance with,
or for preventing or rectifying any contravention of this Order or for the effective
exercise of such power." The relevant provisions noticed hereinbefore will
show that the landlord is under a statutory duty to intimate the existing or
impending vacancy in the premises of which he is the landlord to the Collector
(clause 22(1)). The object underlying the provision is to make available
residential accommodation to the Collector for allotting the same to a
specified class of persons set out in clause 23. This class comprises any
person holding an office of profit under the Union or State Government or any
person holding a post under the Madhya Pradesh Electricity Board, or a
displaced person or an evicted person. The Collector can allot the premises in
respect of which he has received an intimation of vacancy under clause 22, to
anyone belonging to the specified class and none else. The very enumeration of
the class would show that these are persons who cannot be left to the vagaries
of the law of demand and supply of residential accommodation and they are
required to be assisted in this behalf for efficient performance of public
service or one who is roofless on account of being a displaced person or
evicted person. It may be that at any given point of time, no one from class
for 146 whose benefit power is conferred on the Collector to allot vacant
premises may be on the waiting list and therefore, sub-clause (2) of clause 23
permits the landlord to let out such premises in respect of which he has
intimated a vacancy to any person if within fifteen days from the date of
intimation of vacancy to the Collector, an order of allotment is not served
upon the landlord. As a sequel to the right to obtain allotment on the ground
of being holder of office of profit under Union or State Government a
corresponding obligation is cast upon such person to vacate the premises as
soon as he ceases to hold office or the post which enabled him to obtain the
order of allotment. To give full effect to these provisions, power is conferred
on the Collector to take appropriate action to enforce provisions of clauses 22
to 27.
The application made by Ist respondent Shri
S. P. Pathak on December 7, 1976 to the House Allotment Officer complained of
appellant not vacating the premises even though he has ceased to hold the
office of profit. There was not the slightest complaint that when the appellant
entered the premises in 1954, either he did it under an order of allotment made
by the Collector or surreptitiously or in league with the then landlord Shri
Basantrai Sharma or in violation of the mandatory requirement of Clause 22. Yet
the House Allotment Officer proceeded to enquire as to whether clause 22(1) (b)
and 22(2) were contravened when the appellant entered the premises in 1954.
The first question that should engage our
attention is whether the House Allotment Officer was right in holding that
there was any contravention of clauses 22(1) (b) and 22(2) of the Rent Control
Order at the time when appellant entered the premises in 1954. It is necessary
to focus attention on the contention of the appellant in this behalf.
He contended in the written statement that he
entered the premises on an assurance from the landlord that the premises were
being permitted to be occupied in accordance with sub- clause (2) of clause 23,
which permits the landlord to let out the premises to whomsoever he considers
proper if he has not received an allotment order from the Collector within
fifteen days from the date of the receipt of the intimation of vacancy under
clause 22. No record was produced by the applicant before the House Allotment
Officer whether Shri Basantrai Sharma, who was then the landlord and the owner
of the house intimated to the Collector that a portion of the house which was
then in his occupation was intended to be let out. There is not one word in the
order of the 147 House Allotment Officer as to how and in what circumstances
Shri Basantrai Sharma, the then owner let out the premises to the appellant. If
a landlord assures an incoming tenant that he has complied with the provisions
of clause 22, the tenant can enter the premises without being charged for
having contravened sub-clause (2) of clause 22. The legal liability of giving
intimation of vacancy is squarely on the landlord as provided by clause 22. If
the landlord has given intimation of vacancy under clause 22 and the statutory
limit of 15 days for making an allotment order has expired, the landlord on his
own can proceed to let out the premises in respect of which he has sent the
intimation of vacancy to anyone he chooses to accept as tenant. In such a situation,
the only duty cast on the tenant is to seek an assurance from the landlord that
the premises are being permitted to be occupied in accordance with sub-clause
(2) of clause 23. The appellant specifically contended that he entered the
premises on such an assurance from the landlord.
In this state of pleading, it was incumbent
upon the House Allotment Officer to enquire whether deceased Basantrai Sharma
had given intimation of vacancy and whether any allotment order was issued
within the period of 15 days from the date of the receipt of the intimation of
it. If it was found that deceased Basantrai Sharma had given an intimation of
vacancy and that no allotment order was issued within 15 days from the receipt
of the same and that he gave an assurance to the appellant that the premises
are being permitted to be occupied in accordance with sub-clause (2) of clause
23, obviously even if the quondam tenant occupied the premises without an
allotment order, he could not be charged with contravention of sub-clause (2)
of clause 23.
Assuming that landlord Basantrai Sharma gave
a false assurance in 1954 to the appellant that the landlord had sent an
intimation of vacancy and that no allotment order is secured within fifteen
days from the date of intimation of vacancy and accordingly false assurance was
given, the tenant if he bona fide relied upon the assurance emanating from the
landlord and is not shown to be in league with the landlord, he would none the
less be protected and cannot be accused of entering premises in contravention
of clause 23(2). The House Allotment Officer has recorded no finding on this
important point and therefore, on this short ground his order is liable to be
set aside.
We however find a greater infirmity in the
order of the House Allotment Officer. In the absence of an allotment order
being produced by the appellant, three possible surmises are permissible;
148 They are: (1) Shri Basantrai Sharma never
sent the intimation of vacancy, (ii) that even though he did send the
intimation of vacancy and yet he did not receive any allotment order within the
prescribed period, and (iii) that he surreptitiously let out the premises to
the appellant after giving him a false assurance that he has complied with
clause 22. If the allotment order was in fact issued, a copy of it would be
with the appellant as well it must have been sent to the landlord. There would
be an office copy in the file of the case. No such allotment order is
forthcoming. In the absence of an allotment order, before the appellant could
be charged with contravention of clause 22(2), it was incumbent upon the House
Allotment Officer to enquire whether Basantrai Sharma had sent any intimation
of vacancy to the Collector as required by clause 22(1) (b). If it was not
sent, could his successor in interest take advantage of his own wrong when Smt.
Usha Rani N. Sharma who claims to be the inheritor of the premises deliberately
remained absent to help the applicant Shri S. P. Pathak, who is alleged to be a
near relation of the husband of Smt. Usha Rani N. Sharma and who is keen to
enter the premises by alleging contravention of clause 22(1) (b) nearly 22
years before the commencement of the proceedings. Further the tenant contended
that deceased landlord gave him an assurance as required by clause 23(2). In
the light of this contention it was obligatory upon the landlord or his
successor in interest to prove that no such assurance as claimed by the
appellant was ever given to him. Shri S.P. Pathak, the applicant claims to be a
stranger. Original landlord Basantrai Shrama was dead by the time the present
proceedings commenced. Her successor in interest Smt. Usha Rani N. Sharma
remained absent. Appellant gave evidence that he was given the assurance that
the premises were being let out to him in accordance with sub-clause(2) of
clause 23.
And sub-clause(2) of clause 22 protects a
tenant against charge of unauthorised occupation if he enters premises on the
assurance as aforesaid as provided in clause 22(2). The order made by the House
Allotment Officer is conspicuously silent on this most relevant question why
the allegation of assurance put forward by the appellant was not examined by
him and why it was rejected sub silention. The non- application of mind by the
quasi judicial authority to the most relevant point which goes to the root of
the matter completely vitiates the order of the House Allotment Officer,
because once the allegation of assurance canvassed for on behalf of the
appellant is accepted, he is not liable to be evicted on the ground that he
entered the premises in contravention of clause 22(2).
149 There is a still further infirmity in the
order of the House Allotment Officer. Admittedly, the appellant entered the
premises in 1954. He was then serving in the telephone department which would
permit an inference to be drawn that he was holding an office of profit in the
Union of India.
But in order to attract clause 25 of the Rent
Control Order which obligates such holder of the office of profit to vacate the
premises on his ceasing to hold the office of profit, it must be shown that he
entered the premises under an order of allotment made by the Collector either
under clause 23 or clause 24A. Existence of an order of allotment under clause
23 or clause 24A in favour of a person holding an office of profit under the
Union of India or the State Government is a sine qua non before the obligation
under clause 25 can be fastened upon him to vacate the premises on ceasing to
hold the office of profit which enabled him to get an order of allotment in his
favour. In the absence of an allotment order, it is not open to the House
Allotment Officer to draw an inference that the premises were allotted to the
appellant because he was holding an office of profit.
If there is no order of allotment issued to
the appellant on the ground that he is holding an office of profit. The House
Allotment Officer had no jurisdiction to call upon him to vacate the premises
on the short ground that he has ceased to hold the office of profit. The House
Allotment Officer has in terms held that as the appellant has retired in 1967,
and therefore he is not entitled to continue to occupy the premises. This line
of reasoning proceeds on the assumption that there was initially an order of
allotment in favour of the appellant on the ground that he was holding an
office of profit, the assumption being not borne out by the facts. In the
absence of an allotment order, the House Allotment Officer has no jurisdiction
to call upon the appellant to vacate the premises on the short ground that he
has ceased to hold the office of profit.
What is stated hereinbefore is sufficient to
quash and set aside the order of the House Allotment Officer. However, there is
one more aspect of the matter which we cannot overlook. The appellant entered
the premises in 1954. There have been numerous proceedings between him and the
late Basantrai Sharma who let out the premises to the appellant but no one ever
raised the question whether the appellant had entered the premises in
contravention of clause 22(2).
Till Basantrai Sharma died, no one raised the
controversy about the entry of the appellant in the premises as being
unauthorised or in contravention of clause 22. Basantrai Sharma in his life
time tried to 150 obtain possession of the premises from the appellant alleging
grounds available to him under the Rent Control Order other than unauthorised
entry. This would permit an inference that Basantrai Sharma accepted the
appellant as his tenant and his tenancy did not suffer from any infirmity. After
Basantrai Sharma died, her successor in interest one Smt. Usha Rani N. Sharma
did not raise any controversy about the occupation of the premises by the
appellant. One Mr. S.P. Pathak, a total stranger has come forward to complain
about the unauthorised entry of the appellant in the premises. The unauthorised
entry according to the appellant was in the year 1954. Appellant retired in
1967. Basantrai Sharma was alive in 1967. If appellant came into the premises
because he was holding an office of profit, obviously Basantrai Sharma would
not miss the opportunity to evict the appellant because he was otherwise also
trying to do the same thing. Rent was accepted without question from the
appellant by Basantrai Sharma till his death and thereafter. Could he be at
this distance of time, thrown out on the ground that his initial entry was
unauthorised. To slightly differently formulate the proposition, could the
initial unauthorised entry, if there be any, permit a House Allotment Officer,
22 years after the entry, to evict the appellant on the short ground that he
entered the premises in contravention of clause 22(2) ? Undoubtedly, power is
conferred on the Collector to see that the provisions of the Rent Control Order
which disclosed a public policy are effectively implemented and if the
Collector therefore, comes across information that there is a contravention, he
is clothed with adequate power to set right the contravention by ejecting
anyone who comes into the premises in contravention of the provisions. But when
the power is conferred to effectuate a purpose, it has to be exercised in a
reasonable manner. Exercise of power in a reasonable manner inheres the concept
of its exercise within a reasonable time. Undoubtedly, no limitation is
prescribed in this behalf but one would stand aghast that a landlord to some
extent in pari delicto could turn the tables against the person a who was in
possession for 22 years as a tenant.
In such a situation, even though the House
Allotment Officer was to reach an affirmative conclusion that the initial entry
22 years back was an unauthorised entry and that failure to vacate premises
till 9 years after retirement was not proper, yet it was not obligatory upon
him to pass a peremptory order of eviction in the manner in which he has done.
In such a situation, it would be open to him not to evict the appellant. In
this connection, we may refer to Murlidhar Agarwal 151 and Anr. v. State of
U.P. & Ors. wherein one Ram Agyan Singh who came into possession of
premises without an order of allotment in his favour as required by sec. 7(2)
of the U.P.
(Temporary) Control of Rent and Eviction Act,
1947, was permitted to retain the premises by treating his occupation lawful
and this court declined to interfere with that order.
No doubt it must be confessed that sec. 7A
conferred power on the District Magistrate to take action against unauthorised
occupation in contravention of the provisions of the U.P. (Temporary) Control
of Rent and Eviction Act, 1947, but there was a proviso to the section which
enabled the District Magistrate not to evict a person found to be in
unauthorised occupation, if the District Magistrate was satisfied that there
has been undue delay or otherwise it is inexpedient to do so. There is no such
proviso to clause 28 which confers power on the Collector to take necessary
action for the purpose of securing compliance with the Rent Control Order. But
as stated earlier, where power is conferred to effectuate a purpose, it has to
be exercised in a reasonable manner and the reasonable exercises of power
inheres its exercise within a reasonable time. This is too well established to
need buttressing by a precedent.
However, one is readily available in State of
Gujarat v. Patel Raghav Natha & Ors. In that case Commissioner exercised
suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code
which did not prescribe any period of limitation for exercise of revisional
jurisdiction. The Commissioner exercised revisional jurisdiction one year after
the Collector made the order which was sought to be revised. The High Court set
aside the order of the Commissioner. In the appeal by State of Gujarat, this
Court declined to interfere holding inter alia that the revisional power in the
absence of prescribed period of limitation must be exercised within a
reasonable time and period of one year was held to be too late. This aspect
must be present to the mind of House Allotment Officer before just rushing in
on an unproved technical contravention brought to his notice contrived by the
successor in interest of the deceased landlord, and evicting the appellant 22
years after his entry and 9 years after his retirement on the short ground that
his entry in the year 1954 was in contravention of clause 22(2).
Having examined all the aspects of the
matter, we are satisfied that the order of the House Allotment Officer suffers
from numerous 152 infirmities and is unsustainable and must be quashed and set
aside as also the order of the High Court dismissing the Special Civil Application
No. 1957 of 1977 preferred by the present appellant. Accordingly this appeal
succeeds and is allowed and the application made by the first respondent to the
House Allotment Officer is dismissed with no order as to costs throughout.
H.L.C. Appeal allowed.
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