Shri Jagdish Prasad v. State of Uttar Pradesh — 1955 DIGILAW 278 (ALL)

JUDGMENT Mehrotra, J. - This is an application under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the order dated 11th July, 1955, passed by the State Government and that a writ of prohibition be also issued to the Rent Control and Eviction Officer not to take any further proceedings u/s 7-A of the U.P. Act III of 1947 to dispossess the applicant from the shop in question. 2. The facts of the case are that there is a shop No. 2860/4-5 situate in Sheo Ka Bazar in the city of Agra. The applicant states that he had been in occupation of the shop since the year, 1951. Admittedly the shop was allotted in the name of opposite party No. 4, Damodar Das who left it as he was carrying on his business in the adjoining shop and the shop was in occupation of the present applicant. The applicant applied for the allotment of the said shop in his favour on 12th January, 1954. The shop was allotted to the applicant on the 19th January, 1954. The applicant thereupon, on the 20th January, 1954, informed the Rent Control and Eviction Officer that he had continued in occupation of the shop in pursuance of the allotment order in his favour. On the 6th February, 1954, the opposite-party made an application to the District Magistrate praying for cancellation of the order of allotment dated 19th January, 1954, on the ground that the allotment order had been passed without any proper inquiry and the present applicant had been in continuous possession of the shop not in his own right but on behalf of the opposite-party No. 4. The District Magistrate issued notice to the applicant and also got a report from the Rent Control Inspector. After considering the matter, the District Magistrate sent the case to the Rent Control and Eviction Officer with the direction to restart the inquiry. The order forwarding the case for an inquiry to the Rent Control and Eviction Officer also indicated some of the grounds on which, according to the District Magistrate, the order of allotment was not properly made. After the matter was sent back to the Rent Control and Eviction Officer, he, on the 12th May, 1954, passed a long order by which he cancelled the allotment in favour of the applicant made on the 19th January, 1954. After the matter was sent back to the Rent Control and Eviction Officer, he, on the 12th May, 1954, passed a long order by which he cancelled the allotment in favour of the applicant made on the 19th January, 1954. The Rent Control and Eviction Officer in his order dated 12th May, 1954, held that the opposite party had a right to apply for the cancellation of the allotment order and that the possession of the applicant was either as a sub-tenant or servant of the opposite party No. 4. There is controversy between the parties on the question as to what; was the nature of the applicant's possession over the shop. According to the applicant he was carrying on his own business in the shop as the opposite party No. 4 had given up possession. According to the opposite party No. 4, he was only a servant employed by him and was managing his business. It is not necessary at this stage for me to go into that question of fact, but the order of the Rent Control and Eviction Officer cancelling his order of allotment dated 19th January, 1954, is based on the finding that the opposite party No. 4 had in fact never vacated the premises and the possession of the applicant was for and on behalf of the opposite party No. 4. On that finding the Rent Control and Eviction Officer cancelled his previous order of allotment in favour of the applicant. Proceedings u/s 7-A were also started against the applicant and on the 18th May, 1954, another order was passed by the Rent Control and Eviction Officer to the effect that the allotment order of 19th January, 1954, had been cancelled and the applicant was directed to deliver possession of the said shop to Damodar Das by May 21, 1954. Against this order of the Rent Control and Eviction Officer directing the delivery of possession to Damodar Das, the applicant went up in revision to the Commissioner. The Commissioner by his order dated 27th of July, 1954, set aside the order of the Rent Control and Eviction Officer dated 18th of May, 1954. It is necessary to quote the order of the Commissioner which is as follows: The applicant obtained an allotment order on 19th January, 1954 and has been in possession. The Commissioner by his order dated 27th of July, 1954, set aside the order of the Rent Control and Eviction Officer dated 18th of May, 1954. It is necessary to quote the order of the Commissioner which is as follows: The applicant obtained an allotment order on 19th January, 1954 and has been in possession. Now the Rent Control and Eviction Officer, has cancelled the allotment order on the ground that it was obtained by fraud and misrepresentation and has directed the applicant to vacate the shop in dispute. The Rent Control and Eviction Officer had no jurisdiction to cancel the allotment order dated 19th January, 1954. I allow the revision application. 3. This order of the Commissioner was passed u/s 7-A(4) of the Control of Rent and Eviction Act. In effect, this order set aside the order of the Rent Control and Eviction Officer cancelling his previous order and restored his previous order dated 19th January, 1954, allotting the shop to the applicant. The opposite party No. 4 then filed a revision before the State Government, in exercise of its powers u/s 7-F of the Control of Rent and Eviction Act, set aside the order of the Commissioner and restored that of the Rent Control and Eviction Officer dated 18th May, 1954. It is that order of the State Government which is challenged by means of the present petition. 4. The first contention of the applicant is that the State Government had no power u/s 7-F to set aside the order of the Commissioner passed u/s 7-A(4). Section 7-F of the Control of Rent and Eviction Act provides that: The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3 or requiring any accommodation to be let or not to be let to any person u/s 7 or directing a person to vacate any accommodation u/s 7-A and may make such order as appears to it necessary for the ends of justice. 5. 5. The contention of the applicant is that the power to revise an order passed by the Rent Control and Eviction Officer has been given to the State Government u/s 7-F in three cases;: In cases u/s 3 of the Act, the State Government has got powers to revise an order of the Rent Control and Eviction Officer when permission has been granted or refused. Similarly, in cases of allotment u/s 7, it is open to the State Government to interfere with the order of the Rent Control and Eviction Officer and in cases where the Rent Control and Eviction Officer has made an allotment order or has refused to make an allotment order but u/s 7-A the State Government's power to interfere with an order of a subordinate authority is confined to the cases where the order directs a person to vacate any accommodation. In cases where no such direction has been issued, the State Government cannot interfere with any such order. In the present case, it is pointed out that the Commissioner, having set aside the order of the Rent Control and Eviction Officer, has in effect given no direction to the applicant to vacate the accommodation and as such his order cannot be interfered with u/s 7-F of the Act. No objection can be taken to this contention of the applicant but the argument of the Standing Counsel is that it was open to the opposite party No. (sic) go up in revision to the State Government u/s 7-F against the order of the Rent Control and Eviction Officer making the allotment in favour of the applicant on the 19th January, 1954. There is no period of limitation fixed u/s 7-F and consequently what the State Government has done in the present case is not to interfere with the order of the Commissioner but has interfered with the order of allotment made on the 19th January, 1954 by the Rent Control and Eviction Officer in favour of the applicant on the ground that the allotment itself was invalid as there was no vacancy. If the order of the State Government is no interpreted, it cannot be regarded as without jurisdiction and cannot be set aside by this Court under Article 226 of the Constitution. If the order of the State Government is no interpreted, it cannot be regarded as without jurisdiction and cannot be set aside by this Court under Article 226 of the Constitution. In my judgment the effect of the order of the State Government is only to set aside the order of allotment made in favour of the applicant on the 19th January, 1954. Incidentally, the State Government has also passed an order setting aside the order of the Commissioner and restoring that of the Rent Control and Eviction Officer cancelling the order of allotment of 19th January, 1954, but in effect it has only set aside the order of allotment dated 19th January, 1954. To this extent the order of the State Government setting aside the order of allotment of 19th January, 1954, no objection on the ground of want of jurisdiction can be taken against that order. The State Government's order, to my mind, did nothing beyond setting aside the order of the 19th January, 1954. It was then contended by Mr. Kacke'r that Section 7-F no doubt gives power to the State Government to interfere with the order of allotment u/s 7, but when the matter has passed the stage of the Section 7 and proceedings u/s 7-A are started, the power of the State Government to interfere with any order passed during those proceedings is confined to cases where an order directing ejectment has been made. There is fallacy in this argument of the applicant. There are distinct stages where proceedings can be taken under the Control of Rent and Eviction Act and the orders passed by the Rent Control and Eviction Officer u/s 7(1) are independent orders passed by the Rent Control and Eviction Officer and the proceedings u/s 7-A are entirely independent proceedings which are separately revisable by the State Government in different circumstances. The mere fact that the power to revise an order under any of the three circumstances has been given in one section, does not mean that the power to revise one of the orders has exhausted since proceedings u/s 7-(A) are taken. The mere fact that the power to revise an order under any of the three circumstances has been given in one section, does not mean that the power to revise one of the orders has exhausted since proceedings u/s 7-(A) are taken. In Section 7-F has to be interpreted in the manner suggested by the counsel for the applicant/the effect will be that although the section does not provide any period of limitation for moving the State Government to interfere with an order u/s 7, indirectly a limitation is placed on the powers of the State Government inasmuch as it cannot entertain any revision against an order passed u/s 7, once proceedings u/s 7-(A) have started. Such an interpretation cannot be accepted. 6. The next argument of the applicant is that if an order cancelling an allotment itself is an invalid order, the mere fact that if it has been validated by the State Govt., will not make it valid and this Court can set aside the order of cancellation passed by the Rent Control and Eviction Officer under Article 226 of the Constitution. The question which is to be determined is whether the order of cancellation is invalid or not. It has been held by this Court in Mahabir Prasad v. The District Magistrate, Kanpur 1955 A.W.R. (H.C.) 384 that the power of allotment is an administrative order and it can be cancelled by the Rent Control and Eviction Officer but if an allottee, in pursuance of an allotment order, has taken possession, the allotment order can be cancelled only if it had been obtained by fraud or misrepresentation. In the present case the allotment order has been cancelled on the finding that the allotment order was obtained by fraud and misrepresentation. Apart from this is admittedly not a case where the allottee had entered into possession in pursuance of the allotment order and consequently, it was open in may judgment, to the Rent Control and Eviction Officer to cancel his previous order on the ground other than misrepresentation, provided the order was Invalid oh any other ground. There is, therefore, no force in this contention of the applicant that the order of cancellation is an invalid Order. 7. There is, therefore, no force in this contention of the applicant that the order of cancellation is an invalid Order. 7. Lastly, it was contended by the applicant that the order of the Rent Control and Eviction Officer cancelling the allotment order is without jurisdiction inasmuch as it was passed at the instance of the District Magistrate. It is not a case where the District Magistrate himself had cancelled the allotment order. The Rent Control and Eviction Officer had applied his mind independently to the question and had passed an order cancelling his previous order. He had certainly taken into consideration some of the reasons suggested by the District Magistrate and it cannot be argued in the present case that the order of Rent Control and Eviction Officer was passed without applying his mind and it was in effect the order passed by the District Magistrate. In the case referred to above, it was remarked by this Court as follows: To hold that the District Magistrate can interfere with an order of the Rent Control and Eviction Officer even after that officer has passed an order will mean converting an authority of concurrent jurisdiction into a superior authority. 8. It has, however, been observed at 256 of the Report as follows: Where a power is exercised by a public servant under statutory sanction, that power can be exercised by him alone and not by any superior authority. The superior authority may give him suggestion and may even ask him to reconsider his decision leaving to him the freedom to change its mind or not. If in such circumstances the officer who originally passed the order, changes his mind and arrives at a contrary conclusion, the order will be perfectly valid because it would be the order of the original authority and not of the higher authority. But the higher authority cannot by its own order set aside the order of the inferior authority and assume to itself an appellate or revisional power which has not been conferred upon it by the statute. 9. The criterion, in my opinion, will be whether it can be said on a perusal of the order passed by the Rent Control and Eviction Officer that it was not his order. 9. The criterion, in my opinion, will be whether it can be said on a perusal of the order passed by the Rent Control and Eviction Officer that it was not his order. If he had applied his mind independently to the question, it cannot be said that because he considered the matter afresh on the suggestion of the District Magistrate, it was not an order passed by him. It was contended by Mr. Kacker that it is not open to the Rent Control and Eviction Officer to start proceedings for cancellation on a direction of the District Magistrate. There is no particular procedure provided in the Act for the cancellation of any previous order passed by the Rent Control and Eviction Officer. The order of allotment is an administrative order and it is open to the Rent Control and Eviction Officer himself to revise his previous order, so long as the order of cancellation can be said to be an order passed by himself. There is therefore no force in this contention. In my opinion, therefore, the order of the State-Government in so far as it sets aside the order of allotment of 19th January, 1954 is perfectly a valid order and cannot be questioned. It was contended by the applicant that the Commissioner may have maintained the possession of the applicant on the ground other than the validity of the allotment order of the 19th January, 1954. If he has done so, it may be open to the Rent Control and Eviction Officer in proceedings u/s 7-A to consider the effect of the order of the Commissioner but so far as the State Government's order setting aside the allotment order of the 19th January, 1954 is concerned, it is a valid order and the Rent Control and Eviction Officer cannot ignore it in proceedings u/s 7-A of the Control of Rent and Eviction Act. 10. There is, therefore, no force in this petition and it is rejected. 11. In the circumstances of the case, I make no order as to costs.