DAUD AHMED

DISTRICT MAGISTRATE, ALLAHABAD & ORS.

February 4, 1972

[S. M. Snw, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR

AND M. H. BEG, JJ.]

U.P. (TempOl1'ary) Control of Rent and Eviction Act, 1947, ss. 3, second proviso and 1-Scope of.

Natural Justice-"-Duty of inquire whether alternative accommodation exists before requisitioning premises,

1be petitionei' owned premises which were in the oqcupe.tion of a tenant. The tenant vacated the premisea and delivered posse8Sion to the petitioner who moved into actu"1 occupation and informed the. au!lioritiea: Thereafter, the District Magistrate pasied an order of requisition of theae premises, without any enquiry as to whether the petitioner had any othot' alternative accommodation, and the petitioner challenaed the order.

Allowing the petition,

HELD : ( J) The petitioner was in &ctual residenoe of the requisitioned premises and his occupation was not unlawful. Section 7 of the Act does not contain any impediment or bar to the landlord takihg possession Of E the premises after the tenant has vacated. [408 B-G]

(2) The sec.ond proviso to s. 3 of the Act, therefore, applies, and under th&t proviso, the District Magistrate had to form an opinicin that alternative accommodation for the person in occupation existed' Alternative accmnmodation will have to be alternative to the accommodation of which the person was in actual occupation. The existence of !Ill alterna tive accommodation is a mattei' of fact and the opinion is to be formed on certain facts. That is, the District Magistrate had to hold en inquiry to rtain the facts in order 'to arrive at the opinion that there exlated alternative accommodation.

It will not be correct to say that without holdin.11 such an lnquiiy or aivina an opportunity to the person in occupa. tion the District Ma91strate can ascertain as to whether such alte1119tive accommodation exltts. [409 A.C, GH; 410 A-DJ

A. K. Kralpak v. Union of India, [1970] I S.C.R. 457, followed.

OiuGINAL JURISDICTION : Writ Petition No. 244 of 1971.

Under article 32 of the Constitution of India for enforcement of the Fundamental Rights.

V. M. Tarkunde, K. L. Hathi and P. C. Kapur, for the petitioner.

G. N. Dikshit and 0. P. Rana, for respondents Nos. 1 and 2.

The Judgment of the Court was delivered by- A

Ray, J.

This is a wdt petition challenging the order dated 11 July, 1971 made by the Dist.riot Magistrate, Allahabad under section 3 of the U.P. (Temporary) Accommodation Requisition Act, 1947 (hereinafter referred to as the Requisition Act) whereby the petitioner's premises 1-A Beli Road, Allahabad was requisitioned B for the residene of Mr. Jul!tice D. S. Mathur for a period of "three years or earlier if the purpose is exhausted".

The order further recited "I am fur.her satisfied that the said accommodation is not being occupied by any tenant and the owner C who is said to be in possession of the same is living in his own house No. 1011108 Katra Bakhtiari, Allahabad and so no alternative accommodation shall have to be provided to him".

The petitioner owns premises 1-A Beli Road, Allahabad here- .· inafter called the Beli Road premises.

Prior to the impeached .0 order the Beli Road premises had been in the occupation of Mr.

Justice Oak Qf the Allahabad High Court since the year 1955 and p.rior thereto from the year 1950 when he was the District Judg.!, Allahabad.

The petitioner was Jiving at 1011108 Katra Bakhtiari, Al!aha- E. bad. That house is alleged to be situated in a very congested-area

and is unhygenic because of iis situation near a municipal drain.

The petitioner further alleged that the health of the members of the petitioner's family suffered because of the condition of the house.

According to the petitioner, the house also required reconstruction which would cost approximately Rs. 40,000.

Mr. Justice Oak retired as Chief Justice of Allahabad High Court in the month of May, 1971. The petitioner in the month of November, 1970 made an application to the District Magistrate under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (herei11after called the Eviotion Act) for release of the Beli G Road premises in his favour after the same would be vacated by Mr. Justice Oak. The application was under Rule 6 of the Rules under the Eviction Act. It was made in view of the fact that the Chief Justice of Allahabad High Court would retire in the month of May, 1971. The petitfoner also gave an undertaking that he H would vacate the other house 101I108 Katra Bakhtiari and the same could be allotted to any other person. By an order dated 3

May, 1971 the Di&trict Magistrate rejected the application of the petitioner. It may be stated here rthat the Chief Justice of Allahabad had rec; Qmmended the petitioner's application for release of the accommodation.

The petitioner thereafter filed a representation under seotion 7-F of the Eviction Act against the order of refusal to release the accommodation. The State Government on 6 May, 1971 further stayed all proceedins for allotment in respect of Beli Road premises. After the Chief Justice of Allahabad vacated the premises in the month of May, 1971 ho~ delivered possession to the petitioner who moved into the premises and was then in actual occupation of the Beli Road premises. The petitioner infom1ed the Rent Controller and Eviotion Officer, Allahabad that the Chief Justice of Allahabad had vacated the Boli Road premises and given possession thereof to the petitioner and the petitioner was in occupation ot the same.

On 8 July, 1971 the DiS'trict Magistrate passed an order of requisition of the Beli Road premises. This order is challenged on these grounqs., First, no notice of enquiry was given to the petitioner nor W!lS any enquiry made whether suitable alternative accommodation eXisted for the needs of 1he petitioner. Secondly, no provision was made for suitable alternative accommodation of the petitioner because the petitioner had stated that the accommodation at 1011108 Katra Bakhtiari was not fit for habitation and that is why the petitioner's whole family was residing at 1-A, Beli Road, A!lahaad. Thirdly, it was said that the petitioner had a fundamental right to hold property and he was deprived of it without being heard and without being given an opportunity of redressing his grievances before the property was requisitioned.

The entire controversy in this case turns on the second proviso to section 3 of the Requisi1tion Act. The first proviso is not set out because it is not material. The relevant provisions in section 3 are as follows :-

"Power of requisition :-If in the opinion of the District Magisirate it is necessary to requisition any accommodation. for any public purpose he may' by ordor in writing, requisition such accommodation and may direct that the possession thereof shall be delivered to him within such period as may be specified in the order;

provided that the period so specified shall not be less A than 15 days from the date of the service of the order;

Provided further that no accommodation which is in the actual occupation of any person shall be requisitioned unless the District Magistrate is further of the B opjnion that suitable alternative accommodation exists for his needs or has been provided to him".

Counsel on behalf of the State contended that the proviso was not applicable inasmuch as the requisitioned premises was no! in the actual OQcupation of the petitioner. That submission is unacceptable. The affidavit evidence of the petitioner is that the peti- C tioner was in occupation of the Beli Road premises after Chief Justice Oak had vacated the premises. The State did not deny the fact of occupation of the Beli Road premises by the peititioner.

The impeached order of requisition also recited that the petitioner was said to Qe in possession of the Beli Road premises. The Stale however contended it to be unlawful occupation. It is indisput- D able that the petitioner was in possession of the Beli Road premises~ Chief Justice Oak vacated the premises in the month of May,

1971. The petitioner was the owner. Chief Justice Oak therefore surrendered possession to the owner who accepted it. The petitioner went in!o actual residence at the Beli ltoad premises.

Counsel on behalf of the State relied on section 7 of the Eviction Act in support of the contention that the District Magistrate was to control letting of premises and unless an order was made by the DistJice!. Magistra~~ the petitioner could not get into possession. That is totally misreading section 7 of the Eviction Act.

Section 7 indicates that both the landlord and the tenant shall give

notice of the vacancy of the premises after accommodation becomes vacant by the' tenant ceasinii; to occupy or the tenant vacatinii; it or when there. is release from requisition.

Section 7 (2) states that 1the District Mastrate may require a landlord to allot or not o allot to any person any occupation which is or has fallen vacant. Section 7 does not contain any impediment and bar to the landlord takinii; possession of the premises after the tenant ha< vacated. The petitioner informed the District Magistrate that the premises had been vacated and that the petitioner moved into the premises particularly because the other house where the petitioner had been staying with his family was unhygenic and in dilapidated condition. It is also noticeable that the petitioner made an application under rule 6 of the Eviction Act to the District Magistrate to permit the petitioner to occupy the premises for his personal occupation inasmuch as it was needed by the petitioner. Therefore the petitioner could not be said to be in unlawful occupation.

I!'

The petitioner was in actual occupation of the premises. The question therefore is wlwther the second proviso to section 3 of the Requisition Act required that any notice of enquiry was to be given to the petitioner or that any enquiry was to be made by the District Magistrate as to whether suitable alternative accommodation existed for the petitioner or whether alternative accommodation should be provided. On behalf of the State it was submitted that the opinion of the District Magistrate that alternative accommodation existed or had been provided was the subjective opinion of the District Magistrate. The District Magistrate could not form an opinion by imagination. Opinion is to be formed on certain facts. The existence of an alternative accommodation is a matter of fact. The District Magistrate had to form an opinion that alternative accommodation existed. This could not be done without ascertainment of facts and investigation into the question.

The application of the doctrine of audi altarem partem to the exercise of any statutory power depends primarily on the purpose and provisions of the Act Thi~ Court in A. K. Kraipak & Ors. etc. v. Union of India & Ors., [1970) 1 S.C.R. 457 in dealing with the preparation of a selection list for appointment of officers to the Indian Fore.!_! Service said that one of the purposes of the rule of naturaf justice was ito prevent miscarriage of justice. The principle of natural justice has been applicable to administrative enquiries or quasi judicial enquiries. It is the natiire of the power and the I circumstances and conditions under which it is exercW-.d that will occasion thiinvocation of the principle of natural justice. Deprivation of property.affects rights of a person. If under the Requisiiion Act the. netitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accolllmodation '

for the petiiioner or the District Magistrate was to provide alternative accommodation. The pditioner had made specific request

to remain in occupation of the Beli Road premises on !he 2round that the other house was inadequate and insanitary. The District Magistrate corild decide only after due enquiry and investigation on ma!erials whether any alternative accommodation ex:isted.

Alternative accommodation will have to be alternative to the accommodatio_n of which the petiiion.er is in actual occupation. It is incomprehensible as to how the District Magistrate could in 'the order of requisition state the fact that because the petitioner was living in the other house no alternative accommodation was to beprovided.

The existence of alternative accommodation is something the having of which can be ascertained. It will not be correct to say that without holding an enquiry and giving an opportunity to the-

Pctitiqner in that behalf the District Magistrate will be in a position to ascertain as to whether alternative accommodation for the petitioner exists The existence of an alternative accommodation is a controversy which has to be determined by the District MaRistrait!l. The determination is necessary for correcting or con- . tradicting any relevant statement prejudicial to the view expre.ssed .either by the District Magistrate or the petitioner. That is why the principle of audi a/tarem partem is attracted. The opinion as to alternative accommodation is not an impersonal obligation. It is a determination of a fact. The District Magistrate has to arrive at the opinion on the existence of facts by holding an enquiry and not on turning the idea within himself withou't giving th.e' petitioner any say in the matter.

The District Magistrate did not hold an enquiry and failed to comply with the principles .of naitural justice by finding out the requisite condition to the exercise of his powers that alternative accommodation existed for :he petitionor.

The order of reauisition is illegal and unwarranted.

For these reasons, the petitioner is entitled to succeed. There will be an order quashing the order of requisition of the Beli Road premises. The petitioner is entitled to costs.

V.P.S.

Petition allowed.