Full Judgment Text
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PETITIONER:
BABU SINGH CHAUHAN
Vs.
RESPONDENT:
RAJKUMARI JAIN & ORS.
DATE OF JUDGMENT01/02/1982
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
MISRA, R.B. (J)
CITATION:
1982 AIR 810 1982 SCR (3) 114
1982 SCC (1) 520 1982 SCALE (1)135
CITATOR INFO :
R 1984 SC1376 (7)
R 1987 SC 22 (7)
ACT:
U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972-Sections 16(1) (b) and 17(2)-Scope of.
HEADNOTE:
Section 16(1) (b) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972
empowers the District Magistrate to release the whole or any
part of a building or any land appurtenant thereto, in
favour of the landlord. Section 17(2) provides that where a
part of a building is in the occupation of the landlord for
residential purposes or is released in his favour under
section 16(1) (b) for residential purposes the allotment of
the remaining part thereof under clause (a) of sub-section
(1) shall be made in favour of a person nominated by the
landlord.
On intimation from tho tenant that he was vacating the
premises, the rent control authority allotted them to the
appellant without informing the landlady about the
allotment. On appeal the District Judge cancelled the
allotment made in favour of the appellant
The landlady then made an application for delivery of
possession of the premises. This application was rejected on
the ground that she had not applied for release of the
accommodation. Her application under section 16(1) (b) for
release of the premises was rejected and the accommodation
was re-allotted to the appellant. The District Magistrate
affirmed the order of the rent control authority.
The landlady’s writ petition impugning the orders of
the courts below was allowed by the High Court. The case was
remitted to the courts below for reconsideration afresh of
the question of allotment.
In appeal to this Court it was contended on behalf of
the appellant that since the landlady was not in actual
physical possession of the premises neither section 16(1)
(b) nor section 17(2) had any application to the facts of
this case.
Dismissing the appeal,
^
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HELD: The order of the prescribed authority allotting
the premises to the appellant was without jurisdiction and
against the plain terms of section 17(2) of the Act. The
District Judge had rightly allowed the landlady’s appeal and
cancelled The allotment to the appellant.
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The object of the Act is that where a tenant inducted
by the landlord voluntarily vacates the premises, partly
occupied by the landlord, allotment in the vacancy should be
made only to a person nominated by him, the dominant purpose
of such provision being to remove any inconvenience to the
landlord by imposing or thrusting on the premises an
unpleasant neighbour or a tenant who invades the landlord’s
right of privacy. While empowering the prescribed authority
to allot the accommodation, the Act safeguards the right of
the landlord to have a tenant of his choice. [117 B-C, D]
In the instant case if a tenant was thrust on the
respondent without allowing her an opportunity to nominate a
tenant of her choice it would violate the very spirit and
tenor of section 17(2). [120 F]
Possession by a landlord of his property may assume
various forms: a landlord living outside the town might
retain possession over his property or a part of it either
by leaving it in charge of a servant or by putting his
household effects locked up in the premises. Such occupation
would be full and complete possession in the eye of law.
[119 F]
In the instant case from the fact that the landlady was
residing in another town and so was not actually residing in
the premises it could not be said that she was not in
possession of the premises or that she had severed her
connection with her own property. [119 G]
The High Court was justified in quashing the orders of
the rent control authority because no attempt had been made
to approach the landlady for making a nomination in respect
of the premises vacated by the original tenant. All that the
landlady did was to ask for the release of the premises.
Even if this was refused it was incumbent on the rent
control authority to have fulfilled the requirements of
section 17(2) before making an allotment in favour of the
appellant or anyone else. Simply because the landlady was
living outside the town it could not be said that the
provisions of this sub-section would not apply and that the
authorities concerned could make an allotment in favour of
any person without giving an opportunity to her to exercise
her privilege to nominate a tenant. [120 A-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 812 of
1980
Appeal by special leave from the judgment and order
dated the 23rd November, 1979 of the Allahabad High Court in
Civil Misc. Writ No 479 of 1978.
R.K. Garg, V.J. Francis and S.K. Jain for the
Appellant.
Shanti Bhushan, R.K Jain, P.R. Jain and Pankaj Kalra
for Respondent No. 1.
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The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed
against a judgment dated November 23, 1979 of the Allahabad
High Court allowing a writ petition quashing the order of
the Rent Control and Eviction officer and remanding the case
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to him for considering the question afresh in accordance
with law and in the light of the observations made by the
High Court.
The appeal involves a short and simple point but the
case appears to have had rather a long and chequered career.
Put briefly, the facts of the case fall within a narrow
compass so far as the points for decision are concerned. The
first respondent, Smt. Rajkumari Jain, inducted Shri
Thapalayal as a tenant in the premises in dispute which are
situated in the town of Bijnor. The tenant intimated his
intention to the Rent Control and Eviction officer to vacate
the premises on 25.6.1974 on receipt of the aforesaid
application of the tenant a Rent Control Inspector was
directed to visit the spot and after visiting the same he
reported that the premises in question were likely to fall
vacant on 9.6.74. The prescribed authority by its order
dated 1.6.74 allotted the premises to the appellant. In
fact, the appellant had applied to the authority on 20.5.74
for allotment of the accommodation to him. It appears that
these proceedings were taken behind the back of the
respondent landlady who was not taken into confidence either
by the appellant or by the Rent Control authorities. It was
only after the prescribed authority had allotted the
premises to the appellant and the respondent-landlady came
to know of this fact that she moved the prescribed authority
for cancellation of the allotment but her prayer was
rejected.
Thereafter, the landlady filed an appeal before the
Additional District Judge, Bijnor which was allowed and the
allotment in favour of the appellant was cancelled on the
ground that the provisions of s. 17(2) of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 (hereinafter referred to as the ’Act’) were not
complied with. Before narrating further sequence of facts,
it may be necessary to examine the relevant provisions of
the Act. Section 17(2) of the Act may be extracted thus:
"Where a part of a building is in the occupation
of the landlord for residential purposes or is released
in his favour
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under clause (b) of sub-section (1) of Section to for
residential purposes, the allotment of the remaining
part thereof under clause (a) of the said sub-section
(1) shall be made in favour of a person nominated by
the landlord "
A perusal of this statutory provision would clearly
disclose that the object of the Act was that where a tenant
inducted by the landlord voluntarily vacates the premises,
which are a part of the building occupied by the landlord,
an allotment in the vacancy should be made only to a person
nominated by the landlord. The dominant purpose to be
subserved by the Act is manifestly the question of removing
any inconvenience to the landlord by imposing or thrusting
on the premises an unpleasant neighbour or a tenant who
invades the right of privacy of the landlord. It is obvious
that if the tenant has vacated the premises by himself and
not at the instance of the landlord, there is no question of
the Landlord occupying the said premises because he has got
a separate remedy for evicting the tenant on the ground of
personal necessity. The statute, however, while empowering
the prescribed authority to allot the accommodation,
safeguards at least the right of the landlord to have a
tenant of his choice.
In the instant case, the admitted position seems to be
that when the prescribed authority allotted the premises to
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the appellant, the landlady was not taken into confidence
nor was she asked to induct either the appellant or somebody
else as the tenant of the premises which were likely to fall
vacant or which may have fallen vacant. This was undoubtedly
an essential requirement of the provisions of s. 17(2) of
the Act as extracted above. In these circumstances, there
could be no doubt that the order of the prescribed authority
allotting the premises to the appellant was completely
without jurisdiction and against the plain terms of s. 17(2)
of the Act. It was in view of this serious legal infirmity
that the District Judge allowed the appeal filed by the
landlady on 27.1.1976 and cancelled the allotment of the
accommodation to the appellant. On 2.2.76 the landlady
herself filed an application before the District Magistrate,
Bijnor for delivery of possession of the said premises to
her but the District Magistrate rejected the application by
his order dated 8.3.76 on the ground that as the landlady
had not applied for release of the accommodation, she could
not be allotted the premises straightaway. On 5.4.76 the
District Supply officer, Bijnor directed the counsel for the
landlady to nominate a person
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for allotment of the premises. As against this, the landlady
applied for release of the accommodation to her in terms of
the provisions of s. 16(1) (b) of the Act which runs thus:
"16. Allotment and release of vacant building.
(1) Subject to the provisions of this Act, the
District Magistrate may by order:
(a) xx xx
(b) release the whole or any part of such
building, or any land appurtenant
thereto, in favour of the landlord (to
be called a release order)."
The prayer of the landlady under s. 16(1) (b) also
appears to have been ignored by the Rent Control authorities
and by an order dated 15.4.76, the District Supply officer
re-allotted the accommodation to the appellant. This led the
landlady to file another appeal before the Additional
District Judge, Bijnor who by his Order dated 21.9.77
rejected the plea of the landlady, dismissed the appeal and
confirmed the order of allotment. The respondent-landlady
there upon filed a writ petition in the High Court
challenged the orders of the District Supply officer as also
of the District Judge who had affirmed that order and
confirmed the order of allotment in favour of the appellant.
The High Court by the impugned order allowed the writ
petition and sent the matter back to the Rent Control and
Eviction officer to consider the question of allotment
afresh in view of the observations Made by the High Court.
The appellant then obtained special leave of this Court
against the order of the High Court and hence this appeal
before us.
In support of the appeal, Mr. Shanti Bhushan, learned
counsel for the appellant submitted that the High Court had
no jurisdiction to interfere with the concurrent finding of
fact given by the District Supply officer and the District
Judge confirming the allotment in favour of the appellant
and that too in a writ jurisdiction. He also submitted that
the landlady was not at all in actual physical possession of
the premises and had been living outside Bijnor and, there
fore, neither the provisions of s. 16(1) (b) nor those of s.
17(2) of the Act would apply to the facts of the present
case. On the other
119
hand, the counsel for the respondent submitted that
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initially the only question before the Rent Control
Authority was whether the allotment should be made to the
appellant even though he was not nominated by the landlady
under s. 17(2) of the Act. It is common ground that the
appellant was not a nominee of the landlady and, as
discussed above, the District Judge in his first order had
quashed the allotment on the ground that the provisions of
s. 17(2) had not been complied with.
It was also argued on behalf of the respondent-landlady
that the circumstances having changed, she now wanted to
stay in Bijnor permanently and as she wanted additional
accommodation she had applied to the District Magistrate
under s. 16(1) (b) for releasing the building in her favour.
This application was not at all considered on merits by the
District Magistrate or by any court for that matter. If the
respondent could succeed in convincing the District
Magistrate that a case for release of the entire building
was made out, then the question of allotting the premises to
the appellant would not have arisen at all.
We have gone through the judgment of the High Court in
the light of the arguments of the parties and we are
inclined to agree with the view taken by the High Court that
the mere fact that the lady did not actually reside in the
premises which were locked and contained her household
effects, it cannot be said that she was not in possession of
the premises so as to make s. 17(2) inapplicable. Possession
by a landlord of his property may assume various forms. A
landlord may be serving outside while retaining his
possession over a property or a part of the property by
either leaving it incharge of a servant or by putting his
household effects or things locked up in the premises. Such
an occupation also would be full and complete possession in
the eye of law.
It was further argued by Mr. Shanti Bhushan that the
landlady had absolutely no reason to stay in Bijnor because
she was staying with her son in some other town. That by
itself is hardly a good ground for the landlady who was a
widow to sever her connections with her own property.
Moreover, we do not want to make any observations on the
merits of this matter as the High Court has rightly remanded
the case for a fresh decision on all the points involved.
So far as the second point is concerned, Viz., the
question of allotment of the premises to the appellant, the
High Court was fully
120
justified in quashing the order of the District Supply
officer as affirmed by the District Judge because despite
several opportunities no attempt had been made to approach
the landlady to nominate a tenant. There is no evidence to
show that either the prescribed authority or the Rent
Control and Eviction officer ever approached the landlady
for making a nomination in respect of the premises vacated
by the original tenant and she refused to do so. All that
the landlady did was to ask for the release of the premises
but even if this was refused it was incumbent on the Rent
Control authorities to have fulfilled the essential
conditions of s. 17(2) of the Act before making any
allotment in favour of the appellant or for that matter any
other person. It was suggested that as the landlady was not
living 4 in the premises which were locked up, section 17(2)
did not apply. We have already rejected this argument
because even occupation of apart of a building by the owner
which she may visit off and on is possession in the legal
sense of the term and, therefore, it cannot be said that the
provision of s. 17(2) would not apply and that the Rent
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Control authorities could make an allotment in favour of any
person without giving an opportunity to the landlady or the
landlord to exercise her/his privilege of nominating a
tenant.
We have already pointed out that the object of the Act
seems to be to arm the owner with the power of nomination so
as to protect him/her from unpleasant tenants or indecent
neighbours who may make the life of the owner a hell.
Moreover, the conduct displayed by the appellant in this
case clearly shows that if he was thrust on the respondent
without her being allowed an opportunity to nominate a
tenant, it will violate the very spirit and tenor of s.
17(2) of the Act.
As we are of the opinion that the order of the High
Court has to be upheld we refrain from making any further
observations on the merits or any aspect of the matter which
have to be gone into afresh as directed by the High Court.
We find no merit in this appeal which is dismissed with
costs quantified at Rs. 1,000/- (Rupees one thousand only.).
P.B.R. Appeal dismissed.
121