Full Judgment Text
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PETITIONER:
JIWAN SINGH
Vs.
RESPONDENT:
RAJENDRA PRASAD AND ANR.
DATE OF JUDGMENT19/12/1974
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
BHAGWATI, P.N.
UNTWALIA, N.L.
CITATION:
1975 AIR 412 1975 SCR (3) 58
1975 SCC (2) 171
CITATOR INFO :
R 1975 SC1525 (9)
E 1980 SC 206 (22)
ACT:
U.P. Act 3 of 1947-S.7(1) (a) and rule (4)-Scope of.
HEADNOTE:
The first respondent entered into possession of the two
disputed shops on 19th September 1966 with the express
consent of the landlord and made an application to the Rent
Control Officer for allotment of the shops to him. On 15th
November 1966, the landlord, however, revoked his consent
and informed the Rent Control Officer that the previous
tenant had not vacated them. On 20th December 1966 the
landlord intimated the Rent Control Officer that the two
shops had fallen vacant. The appellant’s application dated
21st January 1967 to the Rent Control Officer for allotment
of the shops to him was granted. The first respondent
applied for cancellation of the allotment order but that was
rejected. Proceedings were taken under s. 7A of the U.P.
Act (3 of 1947) to eject, the first respondent, who then
instituted a suit for declaration that the order of
allotment in favour of the appellant was illegal and ultra
vires. The Addl. Munsif held that the order of allotment
was illegal. On appeal the Small Cause Court held that in
view of the intimation of the landlord under s. 7 (1) (a) of
the Act the Rent Control Officer was obliged to )ass an
order in favour of nominee of the landlord under rule 4 and
as he did not pass the order within 30 days of intimation,
the order of allotment in favour of the appellant was valid.
On further appeal the High Court held that since the
landlord did not intimate in writing to the Rent Control
Officer about the vacancy within seven days after the
accommodation became vacant the Rent Control Officer was not
entitled to act under rule 4 of the Rules and, therefore, he
committed an error of jurisdiction in making the order of
allotment to the appellant. The suit was held to be
maintainable.
Under s. 7 (1) (a) the landlord is required to give notice
in writing to the District Magistrate of the vacancy within
seven days after the accommodation became vacant. Rule 4
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states that if the landlord receives no notice from the Dis-
trict Magistrate he may nominate a tenant and the District
Magistrate shall allot the same to his nominee.
Allowing the appeal in part and remitting the case to the
Rent Control Officer,
HELD : The High Court was right in holding that the order
was ultra vires the power of Rent Control Officer and that
the proceedings to evict the first respondent under s. 7 A
were incompetent. Notice in writing within the time speci-
fied in s. 7(1) (a) is a condition precedent to the exercise
of jurisdiction under rule 4. The landlord could not,
without complying with the provisions of s. 7(1)(a), claim
that the Rent Control Officer shall allot the premises to
his nominee. it is clear that the Rent Control Officer was
wrong in thinking that rule 4 obliged him to allot the
premises to the nominee of the landlord as he did not make
the allotment within 30 days of the receipt of the notice.
[61H; F-G]
In the instant case the landlord did not give notice in
writing about the vacancy within seven days after the
accommodation became vacant.
JUDGMENT:
CIVIL APPELLATE JURISDICTION.-Civil Appeal No. 999 of 1971.
Appeal by Special Leave from the Judgment and Order dated
the 14th December 1970 of the Allahabad High Court in Second
Appeal No. 67 of 1970.
S.C. Manchanda, Urmila Kapoor and Kamlesh Bansal for the
appellant.
V. N. Ganpule and P. C. Kapoor for Respondent No. 1.
Mohan Prasad Jha and S. N. Singh for Respondent No. 2.
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The judgment of the: Court was delivered by
MATHEW, J.-This is an appeal, by special leave, from a
judgment, and decree of the High Court of Allahabad, setting
aside a decree passed by the Small Causes Court Agra,
reversing the decree passed by the Additional Munsiff
holding that the order of allotment of the premises in
question to the appellant was illegal and ultra vires.
The facts of the case are these. There are two shops owned
by one Genda Puri (hereinafter called the ’landlord’) in
Agra City. One Kedarnath Tandon (’Tandon’ for short) was a
tenant of these shops till September 1966. Tandon intimated
to the Rent Control and Eviction Officer, Agra ("Rent
Control Officer" for short) on 12-9 1966 that he has vacated
the shops and delivered possession of the same to the
landlord. The rent of the shops was also paid by Tandon to
the landlord upto that date sometime before 20-9-1966. The
1st respondent who got into possession of the shops after
Tandon vacated the same, made an application in the
prescribed form with the express consent of the landlord to
the Rent Control Officer for allotment to him of the two
shops on 19-9-1966. On 15-11-1966, the landlord revoked his
consent for allotment of the shops to the 1st respondent and
intimated to the Rent Control Officer that Tandon had not
vacated the shops. Thereafter on 20-12-1966, the landlord
intimated to the Rent Control Officer that the accommodation
had fallen vacant. On 61-1967, the Rent Control Officer
passed an order fixing 2-2-1967 as the date for
consideration of the application for allotment made by the
1st respondent. On 21-1-1967 the appellant applied to the
Rent Control Officer for allotment of the shops to him and
the landlord consented to have them allotted to him. The
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Rent Control Officer passed an order alloting the two shops
to the appellant as a nominee of the landlord on 27-1-1967.
The 1st respondent applied for cancellation of the allotment
order passed in favour of the appellant. That was rejected.
Thereafter, proceedings were taken under section 7A of the
U.P. Act No. 3 of 1947 (hereinafter referred to as the Act)
to eject the 1st respondent, and notice was issued to the
1st respondent to show cause why he should not be ejected.
The 1st respondent then instituted the suit for a
declaration that the order of allotment dated 27-1-1967 in
favour of the appellant was illegal and ultra vires and
praying that the appellant may be restrained by a permanent
injunction from interfering with his possession.
The suit was contested by defendants 1 and 2, namely , the
appellant and the landlord. Their main contention was that
the order dated 27-1-1967 allotting the two shops to the
appellant ’was proper as, under rule 4 of the Rules framed
under the Act, if the Rent Control Officer failed to allot
the shops within 30 days’ of the intimation of vacancy by
the landlord, the officer was bound to allot the same to the
appellant as the nominee of the landlord. It was also
contended that 1st respondent came into possession of the
shops clandestinely by entering into an arrangement with
Tandon, the previous tenant, and that the, landlord never
inducted the 1st respondent into possession or accepted him
as his tenant.
60
The Additional Munsiff found that Tandon, the previous
tenant, delivered possession of the two shops to the
landlord on 12-9-1966 who on 22-10-1966 put the 1st
respondent in possession of the same and that the 1st
respondent became the tenant of the shops. He further found
that the Rent Control Officer committed an error of law in
not allotting the shops to the 1st respondent as the
landlord had given his consent for allotting the shops to
the 1st respondent although he revoked the consent later on
and hence the allotment order passed in favour of the
appellant was in contravention of the rules and without
affording a reasonable opportunity to the 1st respondent of
being heard. He, therefore, passed a decree in a favour of
the 1st respondent holding that the order of allotment dated
27-1-1967 was illegal and restraining the appellant by an
injunction from disturbing the possession of the 1st
respondent.
On appeal by the appellant the Judge, Small Causes Court,
reversed the decree passed by the Additional Munsiff and
dismissed the suit.
The learned Judge, Small Causes Court, held that landlord
having intimated to the Rent Control Officer under section 7
(1) (a) of the Act on 20-12-1966 that the accommodation
became vacant, the Rent Control Officer was obliged to pass
an order of allotment in favour of the nominee of the
landlord under rule 4, as he did not pass an order of
allotment within 30 days of the intimation, and, therefore,
the order of allotment in favour of the appellant passed on
27-1-1967 was valid and no occasion arose for considering
the application of the 1st respondent for allotment, nor was
there any necessity to hear the 1st ’respondent on his
application. He, therefore, set aside the decree passed by
the Additional Munsiff.
The High Court reversed this decree on the, basis of its
finding that the shops became vacant when Tandon delivered
possession of the same to the landlord on 12-9-1966 and
since the landlord did not intimate in writing to the Rent
Control Officer about the vacancy within 7 days after the
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accommodation became vacant, the Rent Control Officer was
not entitled to act under rule 4 of the Rules framed under
the Act which alone obliged him to allot the shops to the
nominee of the landlord in preference-to the 1st respondent
and, therefore, he committed a jurisdictional error in
making the order of allotment to the appellant and the suit
was therefore ’maintainable.
In order to appreciate the question which arises for
decision. it is necessary to read s. 7 (1) (a) of the Act as
well as rule 4 made under the rule-making power conferred
under s. 17 of the Act. Section 7(1)
(a) reads :
"Every landlord shall, within seven days after
an accommodation becomes vacant by his ceasing
to occupy it, or by the tenant vacating it, or
otherwise ceasing to occupy it, or by
termination of tenancy or by release from
requisition or in any other manner.
whatsoever, give notice of the vacancy in
writing to the District Magistrate",
61
Rule 4 provides as under
"Landlord’s right to let-If the landlord,
receives no notice from the District
Magistrate of the intimation given by the
landlord under s. 7(1)(a), the landlord may
nominate a tenant and the District Magistrate
shall allot the accommodation to his nominee
unless, for reasons to be recorded in writing,
he forthwith allots the accommodation to other
person."
The point for consideration is whether the notice given by
the landlord on 20-12-1966 can be said to be a notice as
provided in s. 7(1) (a) of the Act and whether the
provisions of rule 4 were attracted to the facts of the
case.
Section 7(t) (a) would show that the landlord was obliged to
give notice in writing to the District Magistrate of the
vacancy within 7 days after the accommodation became vacant;
and rule 4 can come into play only on the fulfilment of that
obligation by the landlord under s. 7(1)(a). The learned
Additional Munsiff found that the accommodation fell vacant
on 12-9-1966. In appeal, the Small Causes Court assumed
that Tandon vacated the shops on 20-9-1966. Whichever date
is taken as the date on which the accommodation became
vacant, the landlord did not give notice in writing about
the vacancy within seven days after the accommodation
became vacant as the notice was given only on 20-12-1966.
It is only if the landlord gives the notice in writing of
the vacancy within the time specified in s. 7(1) (a) that
rule 4 would come into operation. In other words, notice in
writing within the time specified in s. 7(1) (a) intimating
that the accommodation has become vacant is a condition-
precedent to the exercise of jurisdiction under rule 4. The
landlord cannot, without complying with the provisions of s.
7 (1 )(a), claim that the Rent Control Officer shall allot
the premises to his nominee. It is therefore clear that the
Rent Control Officer went wrong in thinking that rule 4
obliged him to allot the premises to the nominee of the
landlord as he did not make the allotment within 30 days
of the receipt of the notice. As the Rent Control Officer
allotted the premises to the appellant on the basis that
rule 4 obliged him to do so, and, as we hold that rule did
not come into play since the landlord did not give notice in
writing within seven days after the accommodation became
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vacant, the Rent Control Officer committed an error of
jurisdiction in allotting the premises to the appellant
by his order dated 27-1-1967. The High Court was,
therefore, right in holding that the order was, ultra vires
the power of the Rent Control Officer, and that the
proceedings to
62
evict the 1st respondent under s. 7A were incompetent. In
these circumstances we would direct the Rent Control Officer
to consider the application filed by the 1st respondent on
19-9-1966 for allotment of the shops to him as also the
application of the appellant for the same purpose, after
giving them an opportunity of being heard, and pass the
proper order; and in the light of that order take any
proceedings, if necessary under S. 7A of the Act.
In the result, we modify the decree of the High Court to the
extent indicated and allow the appeal to that extent but
dismiss it in other respects. We make no order as to costs.
P.B.R. Appeal allowed in part.
63