Case: Masood Ahmad Vs. Rent Control & Eviction Officer & Others

Mitter, J. 1. This appeal by special leave is from a judgment of the Allahabad High Court rendered in a Special Appeal upholding the order of the State Government dated March 12, 1968 under Section 7-F of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 cancelling the allotment order of a shop in premises No. 80/79, Banasmandi Couperganj, Kanpur dated October 21, 1967 made by the Rent Control and Eviction Officer Kanpur in favour of the appellant and releasing the same to the respondent 3 before us. 2. The relevant facts are as follow : One Arif Hussein was a tenant of one shop out of eight in the premises mentioned above under respondent 3. He used to carry on a business in bamboos and wooden posts. On July 8, 1967 he purported to execute a sale deed transferring his business including its goodwill and stock-in-trade to the appellant, Masood Ahmad. Within three days thereafter the said tenant died leaving a widow. The appellant made an application dated July 23/28 to the Rent Control and Eviction Officer (hereinafter referred to as the "officer") for allotment of the shop to himself under the provisions of the Act on the strength of his purchase of the business and stock-in-trade. On enquiry through an inspector, the officer came to learn that the widow was still in occupation. On August 9, 1967 the officer rejected the appellants application holding that there was no vacancy. On the same day the widow intimated the officer that she followed this up by writing to the officer on August, 26, 1967 that she had vacated the shop and given possession thereof to the appellant. On September 4, the officer directed his inspector to acquire and report. On receipt of a letter from the appellant dated September 16 praying for allotment of the shop on the ground of the widows having vacated it and his aforementioned purchase, the officer called for a report again. This appears to have been submitted on September 18. On September 30 the officer ordered publication of a notification that the shop was vacant. Such a notification was issued on October 4. It appears that besides the appellant there was another applicant for allotment of the shop. On October 21, 1967 the Allotment Committee considered both the applications and recommended allotment to the appellant. On the same day, the officer allotted the shop in terms of the recommendation. On December 7, 1967 respondent 3 filed a revision application under Section 7-F of the State Government. Therein he stated that the building as a whole was a very old one, that two shops adjoining Arif Hussains were without any proof and in his occupation though vacant and that the whole building required demolition and complete reconstruction. He stated further that he intended to utilise the site by demolishing the old building and constructing a modern cinema hall and a marketing centre with office flats and had by letter dated August 24, 1967 asked the officer that in case the shop of Arif Hussain fell vacant it should not be allotted to anybody but released in his favour to enable him to carry out his plan. His further case was that though he had not heard of the result of his application, he came to learn that the officer had passed an allotment order in favour of the appellant on October 21. His complaint was that all this was done behind his back and that he was being deliberately kept in ignorance of the whole matter. He alleged that he had no knowledge that the shop was being treated as vacant and complaint that the illegal occupation of the appellant was being shielded and condoned by the allotment order without considering his own application for release made on August 24. The appellant filed his reply to the revision application on January 16, 1968 whereupon Government called for a report from the officer which was submitted on January 23. In this mention was made of the rejection of the first application by the appellant on the ground of the widows continuance in occupation and it was stated that upon the second report to the effect that the widow had left the shop making over possession to the appellant the shop was declared vacant and notified for allotment. With regard to respondent 3 it was said that he had never applied for release of the shop in proper time but had submitted an application by ordinary post antedated August 24, 1967 which was received only on December 13. It was asserted further that the landlord had never cared to enquire about the fate of his application. In the premises no notice was required to be given to him of the allotment in favour of the appellant which had been made in due course. 3. The order of the State Government shows that it was made on a perusal of the record. The view taken by the revising authority was that the landlords release application dated August 24, 1967 "was not considered by the opposite party (the appellant) was made to regularise the illegal occupation of the premises in dispute." According to the order "the opposite party was successful in securing an allotment order when he should in fact have been proceeded against under the provisions of the Actor illegal occupation with the assistance of the widow of the former tenant." In the result the State Government set aside the order of allotment and directed release of the accommodation in dispute to the landlord for reconstruction. 4. We may now briefly note the relevant statutory provisions. Orders to control the letting and the rent of accommodation in the Province of U.P. had been made under Rule 81 of the Defence of India Rules. As the said order was to be ineffective with the revocation of the Proclamation of Emergency after September 30, 1946 the Act of 1947 was passed to provide for the continuance during a limited period of powers to control the letting and the rent of such accommodation and to prevent the eviction of tenants in the Provide. Section 2 (a) of the Act defines accommodations meaning residential and not-residential accommodation in any building or part of a building. Under Section 2 (d) District Magistrate includes an officer authorised by the District Magistrate to perform any of his functions under the Act. It appears that the officer is a delegate of District Magistrate. Under Section 3 (1) no one could file suit in any Civil Court against a tenant for eviction from any accommodation except on one or more of the grounds specified in clauses (a) to (g) without the permission of the District Magistrate. But this was to be subject to any order passed under sub-section (3). Under sub-section (3) the Commissioner was empowered to hear applications made under sub-section (2) and to alter or reverse the order of the District Magistrate if he was not satisfied as to its correctness, legality act. Under sub-section (4) the order of the Commissioner under sub-section (3) was to be final subject to any order passed by State Government under Section 7-F. Section 7 provided for the control of letting. Under sub-section (1) clause (a) of the section every landlord was required within 7 days after an accommodation became vacant by his ceasing to occupy it or by the tenant vacating it or otherwise ceasing to occupy it etc., to give notice of the vacancy in writing to the District Magistrate. Under clause (b) every tenant occupying accommodation was under an obligation to give a similar notice in writing to the District Magistrate within 7 days of the vacation of the accommodation by him or his ceasing to occupy it. Under sub-section (2) the District Magistrate was empowered by general or special order to require a landlord to let or not to let to any person any accommodation which had fallen vacant or was about to fall vacant. Under Section 7-A the District Magistrate was empowered to take action against unauthorised occupants. Section 7-F provided as follow;The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3 or requiring any accommodation to be let or not to be let to any person under Section 7 or directing a person to vacant any accommodation under Section 7-A and may make such order as appears to it necessary for the ends of justice. Section 17 empowered the State Government to make rules to give effect to the purposes of the Act. 5. The relevant rules are follows. Under Rules 3 the District Magistrate was to make an allotment order within 30 days of receipt of the intimation sent by the landlord under Section 7(1) (a) of the Act and to give notice thereof to him. Rule 6 provided that "When the District Magistrate is satisfied that an accommodation which has fallen vacant or likely to fall vacant is bonafide needed by the landlord for his own personal occupation the District Magistrate may permit the landlord to occupy himself." Under Rule 7 a duty was cast on the District Magistrate to consult the owner and as far as possible make the allotment in accordance with the wishes of the owner where a portion of accommodation had fallen vacant and the owner was in occupation of another portion thereof. 6. The appellant filed his writ petition in the High Court challenging the order of the State Government inter alia on the following ground :-1. The landlords application for release was antedated and was received by the officer on December 15, 1967. The State Governments conclusion that his application had not been considered was without any basis or evidence. 2. The landlords plea of release of accommodation for purposes of reconstruction was not genuine and should not have been accepted by the State Government without investigation. 3. The appellant was never in unlawful possession. He had first applied for allotment soon after the death of the deceased tenant but as his widow was in possession his application was rejected. His second application after the vacation of the premises by the widow was duly made and the Rent Controller had acted lawfully in ordering the allotment in his favour. Neither the learned single Judge of the High Court who heard the writ petition in the first instance nor the Bench of Court hearing the Special Appeal therefrom accepted the submissions made on behalf of the appellant. 7. Before us learned for the appellant made the following submission :-1. The order of release of the shop in favour of the landlord could be made under the Act only for his personal occupation and could not have been made on the ground that the landlord desired to demolish the building and reconstruct the same. 2. An application for release by the landlord was not entertainable after an order of allotment had been made under Section 7 followed by the occupation of the same by the allottee. 3. The landlord was estopped or debarred from making an application for release once a notification of the vacancy of allotment was made followed by an order of allotment. 4. The order of State Government under Section 7-F was vitiated as it gave no reasons for rejecting the officers order. 5. The question of consent of landlord to the accommodation did not arise unless the landlord resided in a part of the premises which was not the case here. 6. Proceedings under Section 7 A cannot be instituted against the appellant as he was allotted the accommodation by the officer and his occupation was not unlawful. 7. The High Court wrongly failed to exercise jurisdiction under Article 226 on the erroneous view that the question as to the exact point of time when the landlord made his application for release or the receipt of the same by the officer was one of fact and could not be gone into by the High Court itself. 8. We are unable to find any merit in any of the submissions made on behalf of the appellant. On the first point, counsel submitted that it being the duty of the landlord and the tenant to notify the District Magistrate about the vacancy or the imminence thereof, the District Magistrate could only give preference to the landlord if he was satisfied that the landlord bonafide needed the accommodation for his personal occupation. It was submitted that demolition of the building followed by reconstruction therefore was not within the bona fide need of the landlord covered by Rule 6. Our attention was drawn to a judgment of the Allahabad High Court in H. M. Bux v. Rent Control and Eviction Officer ((1958) All LJ 45) where the High Court rejected the contention based on the dictum in an earlier decision in Gada Dhar Prasad Sharma v. District Magistrate, Lucknow ((1956) All LJ 694) that the landlord was "entitled to preference" under Rule 6 and "unless the Rent Control and Eviction Officer thinks that his need is not genuine in the sense that he dose not want to live in the house but wants to take it for somebody else it is incumbent on the Rent Control and Eviction officer to allot the landlord." In the view of the High Court in Buxs case there was no justification for holding that "except in the case in which the landlord wants the accommodation for the purpose of letting it out to another person, the Rent Control and Eviction Officer is bound to conclude that the need of the landlord is genuine." According to the High Court; Letting out to another person could not be employed as the sole test for deciding whether the landlord is to be allowed the benefit of the rule. In our view the decision in Buxs case does not help the appellant before us as the High Court - in our view, rightly - pointed out that "each case must necessarily depend on its own facts". In this case, the facts are that two shops adjoining the accommodation in question are in the occupation of the landlord and the roof thereof has fallen. There is nothing to contradict the landlords case that the whole building is old and dilapidated and requires to be demolished and that he needed the premises for erecting a cinema house with office accommodation etc. Apparently the State Government was satisfied with this reason. We find ourselves unable to subscribe to the view that even if the building is in a dilapidated condition a portion whereof is without a roof and the landlord wants to put up a cinema theatre to carry on business he does not require the accommodation bona fide for his personal need. 9. Points (2) and (7) can be disposed of together. Our attention was drawn to the fact that the landlord had made an application for release of the accommodation in his favour as early as August 24, 1967. The letter was sent under certificate of posting bearing the postal mark of that date. We were also referred to annexure F to the counter affidavit of the landlord before the High Court purporting to show that the copy of the address written on the envelope of the letter to the officer bore the postal stamp of August 24. The State Government had sent for the entire record as well as the report of the officer on the application of the landlord and it was on a scrutiny of the entire facts and circumstances that the State Government took the view that the officer had failed to consider the application of the landlord. Nothing has been shown to us as to why we should reject the view of the State Government formed on the material before it. It is evident that the appellant had gone into possession even before the allotment order was made and was trying his best to hold on to it. The allotment order of October 21, was subject to the revisionary jurisdiction of the State Government under Section 7-F. Very wide powers are give to the State Government under this section and as the State Government directed the cancellation of the allotment in favour of the appellant on a perusal of the cancellation of the allotment in favour of the appellant on a perusal of the record including the report of the officer and the appellants memorandum putting forward all the grounds urged in his favour, the High Court rightly took the view that the order could not be questioned. 10. On the third point, counsel submitted that as the landlord must have been aware of the fact that the tenant was dead and the accommodation had fallen vacant and as he kept quiet even after the notification of vacancy by the Allotment Committee he cannot complain of the allotment in favour of the appellant. Moreover, it was urged, it was only after the allotment in favour of the appellant that the landlord sought to have an order of release in his favour; in consequence his application should have been thrown out by the State Government. No question of estoppel arises in this case. The State Government did not take the view that the landlords application was not made on August 24 and expressly found that the Officer had failed to consider it. 11. From the above, it is clear that the order under Section 7-F cannot be questioned on the ground that the State Government had failed to give reasons for rejecting the officers order. The State Government gave its reasons quite clearly when it noted that the landlords application had not been considered. The State Government also hold that the landlord needed the premises for reconstruction. This disposes of point (4). 12. In the above view of the matter points (5) and (6) do not call for consideration. The landlord had made an application which was not considered and if his application had been considered, his preferential right could not be ignored. We are not concerned to go into the question as to whether proceedings under Section 7-A can be properly instituted as this did not form the subject matter of the writ petition of the appellant nor was any relief asked for on any such ground.

Decision:
0[ds]3. The order of the State Government shows that it was made on a perusal of the record. The view taken by the revising authority was that the landlords release application dated August 24, 1967 "was not considered by the opposite party (the appellant) was made to regularise the illegal occupation of the premises in dispute." According to the order "the opposite party was successful in securing an allotment order when he should in fact have been proceeded against under the provisions of the Actor illegal occupation with the assistance of the widow of the former tenant." In the result the State Government set aside the order of allotment and directed release of the accommodation in dispute to the landlord for reconstruction8. We are unable to find any merit in any of the submissions made on behalf of the appellant. On the first point, counsel submitted that it being the duty of the landlord and the tenant to notify the District Magistrate about the vacancy or the imminence thereof, the District Magistrate could only give preference to the landlord if he was satisfied that the landlord bonafide needed the accommodation for his personal occupation. It was submitted that demolition of the building followed by reconstruction therefore was not within the bona fide need of the landlord covered by Rule 6. Our attention was drawn to a judgment of the Allahabad High Court in H. M. Bux v. Rent Control and Eviction Officer ((1958) All LJ 45) where the High Court rejected the contention based on the dictum in an earlier decision in Gada Dhar Prasad Sharma v. District Magistrate, Lucknow ((1956) All LJ 694) that the landlord was "entitled to preference" under Rule 6 and "unless the Rent Control and Eviction Officer thinks that his need is not genuine in the sense that he dose not want to live in the house but wants to take it for somebody else it is incumbent on the Rent Control and Eviction officer to allot the landlord." In the view of the High Court in Buxs case there was no justification for holding that "except in the case in which the landlord wants the accommodation for the purpose of letting it out to another person, the Rent Control and Eviction Officer is bound to conclude that the need of the landlord is genuine." According to the High Court;Letting out to another person could not be employed as the sole test for deciding whether the landlord is to be allowed the benefit of the ruleIn our view the decision in Buxs case does not help the appellant before us as the High Courtin our view, rightlypointed out that "each case must necessarily depend on its own facts". In this case, the facts are that two shops adjoining the accommodation in question are in the occupation of the landlord and the roof thereof has fallen. There is nothing to contradict the landlords case that the whole building is old and dilapidated and requires to be demolished and that he needed the premises for erecting a cinema house with office accommodation etc. Apparently the State Government was satisfied with this reason. We find ourselves unable to subscribe to the view that even if the building is in a dilapidated condition a portion whereof is without a roof and the landlord wants to put up a cinema theatre to carry on business he does not require the accommodation bona fide for his personal needIt is evident that the appellant had gone into possession even before the allotment order was made and was trying his best to hold on to it. The allotment order of October 21, was subject to the revisionary jurisdiction of the State Government under Section. Very wide powers are give to the State Government under this section and as the State Government directed the cancellation of the allotment in favour of the appellant on a perusal of the cancellation of the allotment in favour of the appellant on a perusal of the record including the report of the officer and the appellants memorandum putting forward all the grounds urged in his favour, the High Court rightly took the view that the order could not be questionedNo question of estoppel arises in this case. The State Government did not take the view that the landlords application was not made on August 24 and expressly found that the Officer had failed to consider it11. From the above, it is clear that the order under SectionF cannot be questioned on the ground that the State Government had failed to give reasons for rejecting the officers order. The State Government gave its reasons quite clearly when it noted that the landlords application had not been considered. The State Government also hold that the landlord needed the premises for reconstruction. This disposes of point (4)12. In the above view of the matter points (5) and (6) do not call for consideration. The landlord had made an application which was not considered and if his application had been considered, his preferential right could not be ignored. We are not concerned to go into the question as to whether proceedings under SectionA can be properly instituted as this did not form the subject matter of the writ petition of the appellant nor was any relief asked for on any such ground.