Case: Murlidhar Agarwal & Another Vs. State of Uttar Pradesh & Others

Mathew, J.1. The appellants filed a petition under Article 226 of the Constitution before the High Court of Allahabad praying that the order passed by the State Government on October 20, 1967, allowing a revision filed by the respondent be quashed and possession of the premises in question be given to them under Section 7-A of the U. P. (Temporary) Control of the Rent and Eviction Act, 1947 (hereinafter called the Act).2. The original owner of the premises was one Ram Swaroop Gupta. He leased the premises to M/s. Pioneer Exhibitors and Distributors Limited. They used the premises for exhibiting cinema. That lease terminated by efflux of time of June 30, 1952. Gupta, thereafter, leased the premises by a deed dated October 13, 1952 for a period of 10 years to Ram Agyan Singh, respondent No. 2. But there was no order allotting the accommodation to him under Section 7 (2) of the Act. Respondent No. 2 also used the premises for exhibiting cinematograph films. Disputes having arisen between the parties, Gupta filed suits for recovery of rent as well as for ejectment against respondent No. 2. The appellants purchased the premises in question from Ram Swaroop Gupta by a sale deed dated March 26, 1962. Thereafter they filed an application under Section 7 of the Act read with Rule 6 made under the Act for release of the accommodation in their favour. On December 3, 1965, the Additional District Magistrate allowed the application and permitted the appellants to take possession of the premises. That was on the basis that the premises were in illegal occupation of respondent No. 2. The representation against this order filed by respondent No. 2 to the State Government was rejected on January 10, 1966 on the ground that there was no provision for any interference by Government with the order. On December 4, 1965, the appellants filed an application for eviction of respondent No. 2 under Section 7-A of the Act. On June 18, 1966, the Additional District Magistrate directed issue of notice under clause (2) of Section 7-A, why respondent No. 2 should not be evicted. Thereafter, the Additional District Magistrate passed the order for eviction. Respondent No. 2 went up in revision against the order to the Additional Commissioner. He confirmed the order of the Additional District Magistrate. Respondent No. 2, thereafter, filed an application for revision under Section 7-F of the act before the State Government against the order. The State Government allowed that application on October 20, 1967 holding that respondent No. 2 was not liable to be evicted from the premises. On January 20, 1968, the State Government communicated to the parties a summary of the reasons on the basis of which the order had been passed. That in effect said that the respondent was running a cinema under a licence in the premises from 1953, that the District Magistrate, when he granted the licence, was satisfied that respondent No. 2 was in lawful occupation and that, in these circumstances, he was entitled to the benefit of the proviso to Section 7-A (1) of the Act and was not liable to be evicted from the premises.3. It was to quash this order that the appellants filed the writ petition before the High Court.4. A learned Single Judge of the Court quashed the order. Respondent No. 2 filed an appeal against the order The Division Bench reversed the order of the learned Single Judge. It is against this order that this appeal has been filed on the basis of a certificate granted under Article 133 (1) (b) of the Constitution.5. The Division Bench was of the view that the learned Single Judge was not justified in interfering with the order passed by the State Government under Section 7-F of the act inasmuch as the order of the State Government did not suffer from any infirmity either on the ground that it has no jurisdiction to pass the order or for the reason that there was an error of law apparent on the face of the record.6. The material provision in Section 7-A of the Act provides:"S.7-A. District Magistrates power to take action against unauthorised occupation- (1) Where in pursuance of an order of the District Magistrate under sub-section (2) of S. 7 the vacancy of any accommodation is required to be reported and is not reported, or where an order requiring any accommodation to be let or not to be let has been duly passed under sub-section (2) of S. 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause, within a time to be fixed by him, why be should not be evicted therefrom;Provided that no order under this section shall be passed if the district Magistrate is satisfied that there has been undue delay or it is otherwise inexpedient to do so.The proviso to sub-section (1) of S. 7-A is couched in wide language. The dictionary meaning of the word inexpedient is:"Not expedient; disadvantageous in the circumstances; unadvisable, impolitic.**See Oxford English Dictionary, Illustrated, Vol. 1, 3rd ed., (1964), p. 997.The circumstances that could be taken into consideration to decide whether it is expedient or inexpedient to order an eviction under the section are not mentioned in the proviso. A great deal of discretion must, therefore, be vested in the District Magistrate and in the State Government when disposing a revision from an order passed by the District Magistrate as several factors would enter the making of the verdict whether it is inexpedient to pass an order of eviction under the section. In this case, the State Government has taken into account two reasons for exercising its discretion under the proviso in favour of respondent No. 2:(1) that respondent No. 2 was in possession from 1953 onwards and was conducting a cinema in the premises after obtaining a licence from the District Magistrate under the U. P. Cinema Regulation Act; (2) that the District Magistrate, when granting the licence to conduct the cinema must have been satisfied that the respondent was in lawful occupation of the premises.In other words, what in substance the State Government said was, that respondent No. 2 has been using the premises for conducting cinema from 1953 on the basis of his possession of the premises and that it would be inexpedient to evict him at this stage. We cannot say that the circumstances taken into account are irrelevant for the exercise of the discretion.7. Mr. Gupta, appearing for the appellants, said that when the Additional District Magistrate passed the order for release on the basis that the appellants required the premises bona fide for their personal occupation, the State Government, in the exercise of its revisional jurisdiction under Section 7-F against the order of eviction under Sec. 7-A should not have nullified the effect of the order of release by exercising its discretion under the proviso to Section 7-A against the appellants. He also said that the State Government did not even refer to the order for release which would show that it made no assessment of the hardship to the landlords.8. The fact that an order for release was passed by the Additional District Magistrate on the basis that the premises were bona fide required by the appellants for their personal occupation did not preclude him, when he was moved by the appellants to evict respondent No. 2 from exercising his discretion under the proviso to Section 7-A. For it is at that stage that the respondent will have the opportunity to urge the circumstances which make it inexpedient to evict him. In other words, the only relevant question at the time when the order of release was passed was whether the appellants required the premises bona fide for their occupation. The controversy was limited at that stage to that question. The circumstances which would make the passing of an order of eviction inexpedient under Section 7-A could not have been urged at that time by respondent No. 2. So, the inference that the State Government was not aware of the order for release on the ground that the appellants required the premises for their personal occupation could not be made from the fact that the State Government found that it was inexpedient to order the eviction of the second respondent in the exercise of its discretion under the proviso to Section 7-A when disposing of a revision.9.We are not satisfied that the order of the State Government was vitiated by any error of law apparent on the face of the record. As already stated, the considerations which weighed with the State Government in rejecting (sic) (allowing?) the application, namely, the hardship to respondent No. 2 who was conducting a cinema in the premises from 1953 cannot be said to be irrelevant.

Decision:
1[ds]8. The fact that an order for release was passed by the Additional District Magistrate on the basis that the premises were bona fide required by the appellants for their personal occupation did not preclude him, when he was moved by the appellants to evict respondent No. 2 from exercising his discretion under the proviso to Section 7-A. For it is at that stage that the respondent will have the opportunity to urge the circumstances which make it inexpedient to evict him. In other words, the only relevant question at the time when the order of release was passed was whether the appellants required the premises bona fide for their occupation. The controversy was limited at that stage to that question. The circumstances which would make the passing of an order of eviction inexpedient under Section 7-A could not have been urged at that time by respondent No. 2. So, the inference that the State Government was not aware of the order for release on the ground that the appellants required the premises for their personal occupation could not be made from the fact that the State Government found that it was inexpedient to order the eviction of the second respondent in the exercise of its discretion under the proviso to Section 7-A when disposing of a revision.9.We are not satisfied that the order of the State Government was vitiated by any error of law apparent on the face of the record. As already stated, the considerations which weighed with the State Government in rejecting (sic) (allowing?) the application, namely, the hardship to respondent No. 2 who was conducting a cinema in the premises from 1953 cannot be said to be irrelevant.Now, the landlord and the tenant cannot, by their agreement, bind the District Magistrate. In spite of the lease, the District Magistrate may treat the accommodation as vacant and evict therefrom the tenant who is in occupation of the accommodation without an allotment order. This is his statutory obligation. But the appellant would be estopped from denying that the respondent is a tenant. The Act makes a distinction between a tenant by virtue of allotment order. In most of the sections of the Act the word tenant alone is used. If the word tenant in Section 3 is concerned as "tenant under an allotment order, then the tenants who have been occupying an accommodation without an allotment order will be deprived of several material privileges conferred upon them by the Act. Having regard to the definition clause and the scheme of the Act, we are of opinion that the respondent is a tenant under Section 3 even though he is occupying the accommodation without an allotment order. It follows that the respondent would get the protection under Section 3 and that the appellants suit was, therefore, liable to be dismissed as it was found that it was instituted without the permission of the District Magistrate.The Act was passed inter alia to prevent the eviction of tenants from their accommodations. The language of Section 3(1) is imperative and it prohibits the institution of the suit without the permission. If any landlord institutes a suit for eviction of the tenant without the permission of the District Magistrate, he commits an offence and is punishable under Section 15 of the Act. The object of Section 3 is to give protection to a tenant from eviction from an accommodation. The policy of the Act seems to be that a responsible authority like the District Magistrate should consider the claim of the landlord and the needs of the tenant before granting permission. There was alarming scarcity of accommodation. The object of legislature in enacting the law was to protect tenants from greedy and grasping landlords, and from their resorting to Court for eviction of tenants without reasonablecan be no doubt that the provision has been enacted for protecting one set of men from another set of men, the one from their situation and condition are liable to be oppressed and imposed upon. Necessitous men are not free men.There can be no doubt about the policy of the law, namely the protection of a weaker class in the community from harassment of frivolous suits.The expression public policy has an entirely different meaning from policy of the law and one much more extensive. Nevertheless, the term public policy is used by the House of Lords itself apparently as synonymous with the policy of the law or the policy of a statute (seeHollinshead v. Hazleton, 1916 AC428). Yet it is clearly so used without intent to repudiate or disregard the distinction so clearly drawn in Egertonv. Brownlow, (1853) 4 HLC 1 at p. 105.It seems clear that the conception of public policy is not only now quite distinct from that of the policy of law but has in fact always been so except is some exceptional instances of confusion which have had no substantial effect on the general course of authority.Public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time.32. If it is variable, if it depends on the welfare of the community at any given time, how are the courts to ascertain it? The judges are more to be trusted as interpreters of the law than as expounders of public policy. However, there is no alternative under our system but to vest this power with judges. The difficulty of discovering what public policy is at any given moment certainly does not absolve the judges from the duty of doing so. In conducting an enquiry, as already stated, judges are not hide bound by precedent. The judges must look beyond the narrow field of past precedents, though this still leaves open the question, in which direction he must cast his gaze. The judges are to base their decision on the opinions of men of world, as distinguished from opinions based on legal learning. In other words, the judges will have to look beyond the jurisprudence and that in so doing, they must consult nor their own personal standards or predilections but those of the dominant opinion at a given moment, or what has been termed customary morality. The judges must consider the social consequences of the rule propounded, especially in the light of the factual evidence available as to its probable results. Of course, it is not to be expected that men of the world are to be subpoenaed as expert witnesses in the trial of every action raising a question of public policy. It is not open to the judges to make a sort of referendum or hear evidence or conduct an inquiry as to the prevailing moral concept. Such an extended extra-judicial enquiry is wholly outside the tradition of courts where the tendency is to trust the judge to be a typical representative of his day and generation. Our law-relies, on the implied insight of the judge on such matters. It is the judges themselves, assisted by the bar,who here represent the highest common factor of public sentiment anddoubt, there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. But this is beside the point. The point is rather that this power must be lodged somewhere and under our Constitution and laws, it has been lodged in the judges and if they have to fulfil their function as judges, it could hardly be lodged elsewhere.We think that Section 3 is based on public policy. As we said, it is intended to protect a weaker section of the community with a view to ultimately protecting the interest of the community in general by creating equtiality of bargaining power. Although the section is primarily intended for the protection of tenants only, that protection is based on public policy. The respondent could not have waived the benefit of the provision.