Case: Mansaram Vs. S. P. Pathak And Others

Appellant Shri Mansaram son of Shri Chanduram Sharma was serving in the telephone office at Nagpur and was thus 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 ha d 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 t o 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 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.

Reasoning:
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 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 yea r 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 t he 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 y ear 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 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.