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1959 DIGILAW 285 (ALL)

Ganga Devi v. Rent Control and Eviction Officer

1959-09-25

MOOTHAM, R.DAYAL

body1959
JUDGMENT Mootham, C.J. - This appeal raises a question of some importance with regard to the construction of Section 7A(1) of the U.P. (Temporary) Control of Rent and Eviction Act. The appeal arises in the following circumstances: 2. The third Respondent is the owner of a shed in Belanganj, Agra City. That shed was occupied by one Hanuman Prasad as the licensee of the owner. On 19-9-55, Hanuman Prasad died and on the 8th August the third Respondent applied to the RC and EO for permission to occupy the shed as he wanted to convert it into a pucca building. At that time the shed was in the occupation of the Appellant Smt. Ganga Devi, who is the widowed sister of Hanuman Prasad. There is a dispute as to whether this lady had lived in the shed with her brother prior to the latter's death, but there is no serious dispute that she has been in occupation after his death. On 3-9-56, the RC and EO purporting to act u/s 7A(1) of the Act, sent a notice to the Appellant calling upon her to show cause why she should not be evicted from the premises, The Appellant questioned the validity of this notice, but by an order dated 7-11-56, the RC and EO held the Appellant to be in unauthorised occupation of the premises and directed her to vacate the latter by the 16th November. By the same order the RC and EO directed that the premises be released to the owner "who will not let it out to any one as required u/s 7(2) of the Act." The Appellant applied to the Commissioner for the revision of the RC and EO's order but that application was dismissed on 14-2-57. The Appellant then filed a petition Under Article 226 of the Constitution in which she challenged the validity of the orders of the RC and EO and the Commr. dated respectively 7-11-56 and 14-2-57 and prayed that they be quashed by a writ of certiorari. That petition was dismissed by the learned Judge and the Appellant now appeals. 3. The order of the RC and EO dated 3-9-56, calling upon her to show cause why she should not be evicted from the premises was made by the RC and EO in purported exercise of his powers u/s 7A(1) of the Act. That petition was dismissed by the learned Judge and the Appellant now appeals. 3. The order of the RC and EO dated 3-9-56, calling upon her to show cause why she should not be evicted from the premises was made by the RC and EO in purported exercise of his powers u/s 7A(1) of the Act. That sub-section (omitting the porviso with which we are not now concerned) reads thus: 7A. (1) Where in pursuance of an order of the District Magistrate under Sub-section (2) of Section 7 the vacancy of any accommodation is required to be reported and is not so reported or where an order requiring any accommodation to be let or not to be let has been duly passed Under Sub-section (2) of Section 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause within a time to be fixed by him why he should not be evicted therefrom. 4. It is contended by the third Respondent that under this sub-section when the District Magistrate has reason to believe that a person is in unauthorised occupation of any accommodation, he may call upon that person to show cause why he should not be evicted therefrom if either of two conditions is fulfilled, those conditions being, in the words of the sub-section. (i)Where in pursuance of an order of the District Magistrate Under Sub-section (2) of Section 7 the vacancy of any accommodation is required to be reported and is not so reported. or (ii)Where any order requiring any accommodation to be let or not to be let has been duly passed Under Sub-section (2) of Section 7. 5. Now in the present case the order of the RC and EO u/s 7(2) of the Act requiring the third Respondent not to let the premises to any person was; made on 7-11-56, that is to say it was an order subsequent in date to the order calling upon the Appellant to show cause why she should not be evicted, which was made on the preceding 3rd September. It is therefore common ground that the second of two conditions was not fulfilled and the question is whether the first condition was satisfied. 6. It is therefore common ground that the second of two conditions was not fulfilled and the question is whether the first condition was satisfied. 6. Now, if we omit from Section 7A(1) those words which refer only to the second condition, the sub-section will read as follows: Where in pursuance of an order of the District Magistrate Under Sub-section (2) of Section 7 the vacancy of any accommodation is required to be reported and is not so reported...and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause within a time to be fixed by him why he should not be evicted therefrom: We find it impossible to give any intelligible meaning to these provisions. In the first place the words "in pursuance of an order of the District Magistrate Under Sub- section (2) of Section 7" appearing at the commencement of the sub-section have ceased to have any meaning. Prior to the amendment of the Act by the U.P. (Temporary) Control of Rent and Eviction (Amendment Act, 1952 (U.P. Act XXIV of 1952) the reference in Section 7A(1) was to Sub-section (1) of Section 7 and that sub-section (as it then stood) empowered the District Magistrate by general or special order to require a landlord to give intimation that any accommodation of which he was the landlord is or has fallen vacant. That provision was removed by the Amending Act of 1952 and at the same time Section 7(1) was so amended as to impose a statutory obligation upon both the landlord and the tenant to give notice in writing to the District Magistrate when an accommodation becomes vacant. As a consequence of this amendment the first reference in Section 7A(1) to an order of the District Magistrate Under Sub-section (1) of Section 7 became meaningless, but instead of deleting it the legislature, for some reason which we find it difficult to understand, merely substituted a reference to Sub-section 2) of Section 7 for the existing reference to Sub-section (1) of Section 7. Sub-section (2) of Section 7 (as amended) empowers a Dsstt. Sub-section (2) of Section 7 (as amended) empowers a Dsstt. Magistrate to require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant; it has nothing whatever to do with reporting the vacarcy of any accommodation. 7. In these circumstances learned Counsel for the third Respondent argued that this Court should construe Sub-section (1) of Section 7A as if the words "In pursuance of an order of the District Magistrate Under Sub-section (2) of Section 7" were not there. It is no doubt the duty of the Court to endeavour to construe a statutory provision so as to give effect to the clear intention of the legislature, but in the present case we are of opinion that even the omission of the words in question will not assist in the interpretation of this sub-section, which would then provide that: Where...the vacancy of any accommodation is required to be reported and is not so reported...and the District Magistrate believes or has reason to believe that any person has in contravention of the said order occupied the accommodation... On this reading of the Sub-section the words "in contravention of the said order" cease to have any meaning and we cannot construe the sub-section nor indeed were we invited to as if those words were not there, for they are a necessary part of the sub-section for the purpose of making intelligible the second of the two conditions upon the fulfillment of which a notice to show cause may be issued by the District Magistrate. 8. We are therefore of opinion that the District Magistrate had no power to issue the impugned notice to the Appellant dated 3-9-56 and if that notice is, as we held it to be invalid it follows that the order of the District Magistrate dated 7-11-56 and the subsequent order of the Commissioner dated 14-2-57, cannot be sustained. 9. The only other matter which calls for consideration in this appeal is the submission of the third Respondent that the petition was not filed in good faith and that the Court should therefore refrain from exercising its discretion in the Appellant's favour Under Article 226. This submission is based on the finding of the RC and EO, with which the Commr. This submission is based on the finding of the RC and EO, with which the Commr. agreed that the Appellant was not in fact residing in this accommodation prior to Hanuman Prasad's death. That fact if it be a fact is not however material. What is material is whether the Appellant went A into occupation shortly after her brother's death and has since remained in occupation; and that she did so appears not to be a matter of serious controversy. 10. We are therefore of opinion that this appeal should be allowed. We set aside the order of the learned Judge and direct the issue of a writ in the nature of certiorari quashing the orders of the RC and EO dated the 3rd September and 7-11-56 and of the Commr. dated 14-2-57. The Appellant is entitled to her costs in both Courts.