Ram Lal v. Shiv Mani Singh — 1962 DIGILAW 1 (ALL)

JUDGMENT S.D. Singh, J. - This writ petition has been filed by Sri Ram Lal under Articles 226 and 227 of the Constitution of India with the prayer that the order of the Commissioner, Lucknow Division, dated 31st October, 1960, and that of the Rent Control and Eviction Officer, Lucknow, dated 8th July, 1960, be set aside and notice issued against the petitioner under Sec. 7-A (2) of the Control of Rent and Eviction Act, III of 1947, be discharged. 2. The dispute relates to house No. 111/2 in Garbar Jhala Park, Aminabad, Lucknow, which belongs to Sri Sita Ram Gupta. The petitioner is a tenant in the ground floor and carries on his business in general mercandise in it. The first floor was let out to one Sri Ram Chandra Kakkar. Some time in July 1958 the landlord was informed that the accommodation in the first floor would be vacated. On 14th July, 1958, the present petitioner Ram Lal obtained the consent of the landlord for this accommodation being allotted to him, and then applied to the District Magistrate, whose powers under the Control of Rent and Eviction Act (to be referred to hereafter as the Act) are exercised by the Rent Control and Eviction Officer, for the accommodation being allotted to him. It is alleged that no steps were taken by that Officer over this application for over a month and on 25th August, 1958, therefore, the petitioner was put in possession of these premises by the landlord. On 13th September, 1958, the Rent Control and Eviction Officer issued a notice against him under Sec. 7-A (1) of the Act. A reply to that notice was given on 28th September, 1958, and on 12th December, 1958, the Rent Control and Eviction Officer allotted this accommodation to two persons Sri Shiva Mani Singh and Sri A.B. Lal, who are opposite parties nos. 1 and 2 in this petition. 3. After this allotment order was passed, the allottees were put in possession of one of the rooms in the accommodation in the first floor. Under an arrangement arrived at with the petitioner, under which half the rent was paid by him and half by the allottees. It is further alleged that the allottees were paying him half the electric charges every month and that the entire electric bill was thereafter paid by him, i.e., petitioner to the Electric Supply Company. Under an arrangement arrived at with the petitioner, under which half the rent was paid by him and half by the allottees. It is further alleged that the allottees were paying him half the electric charges every month and that the entire electric bill was thereafter paid by him, i.e., petitioner to the Electric Supply Company. 4. On 25th April, 1960, Sri Shiv Mani Singh, opposite party no. 1, moved the Rent Control and Eviction Officer for proceedings being taken against the petitioner under Sec. 7-A (1) and on 10th May, 1960, notice was issued by the Rent Control and Eviction Officer under that provision against the petitioner. Objections were filed by the petitioner on 16th May, 1960, but they were dismissed on 8th July, 1960, and a revision filed by the petitioner before the Commissioner was dismissed by him on 31st October, 1960. 5. The main contention of the petitioner before us was that his possession over the accommodation is not in contravention of any order passed by the District Magistrate and that, therefore, no proceedings can be taken against him under sub-sec. (1) of Sec. 7-A of the Act and this involves the interpretation of See. 7-A. Cl. (a) of sub-sec. (1) of Section 7 lays down that every landlord shall, within seven days of the accommodation falling vacant, give notice of the vacancy in writing to the District Magistrate. Cl. (b) provides for similar notice being given to the District Magistrate by the outgoing tenant. Sub-Sec. (2) of the same section provides that the District Magistrate may by general or special order 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. 6. If the District Magistrate passes an order under sub-sec. (2) of Section 7 requiring a landlord to let an accommodation to any person and that person is not put, in possession by him, it is sub-sec. (1) of Sec. 7-A. of the Act which makes provision for the contingency. This section reads:- "(1) Where in pursuance of an order of the District Magistrate under sub-sec. (2) of Section 7 the vacancy of any accommodation is required to be reported and if not so reported or where an order requiring any accommodation to be let or not to be let has been duly passed under sub-sec. This section reads:- "(1) Where in pursuance of an order of the District Magistrate under sub-sec. (2) of Section 7 the vacancy of any accommodation is required to be reported and if not so reported or where an order requiring any accommodation to be let or not to be let has been duly passed under sub-sec. (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," 7. This sub-section makes rather unhappy reading and is a glaring instance of unartistic drafting. The relevant portion of this sub-section, however, provides that where an order requiring any accommodation to be let or not to be let has been duly passed under Sec. 7(2) of the Act and any person "has, in contravention of the said order, occupied the accommodation" the District Magistrate may call upon him to show cause why he might not be evicted from that accommodation. In order that the provisions of this sub-section may apply, two conditions must be satisfied, namely: - (1) that an order has been duly passed by the District Magistrate under Sec. 7(2) requiring any accommodation to be let or not to be let and; (2) some person is in possession in contravention of the said order. 8. The petitioner obtained possession over this accommodation on 25th August, 1958. The order requiring the accommodation being let out to the opposite parties Nos. 1 and 2 was passed on 12th December, 1958. On the date, therefore, Sri Ram Lal obtained possession over the premises, there was no order of the District Magistrate which may have been contravened by him. Even the words "said order" and "has occupied" indicate that the person who is said to have been in unauthorised occupation must have, in order that action may be taken against him under Sec. 7-A (1), entered into occupation of the premises after the passing of an order under sub-sec. (2) of Sec. 7. 9. A similar question arose in Chhotey Lal v. District Magistrate, Moradabad, AIR 1952 Allahabad 913. It was held by Waliullah and Bind Basini Prasad, JJ. (2) of Sec. 7. 9. A similar question arose in Chhotey Lal v. District Magistrate, Moradabad, AIR 1952 Allahabad 913. It was held by Waliullah and Bind Basini Prasad, JJ. that the provisions of Sec. 7-A (1), if properly interpreted, can only mean that an occupation or even continuance of occupation of an accommodation, whether it be by the owner himself or by any other after the District Magistrate has, within 30 days of the receipt of the intimation in question, passed an order of allotment, in contravention of such an order, would be hit by the provisions of this section. That was a case in which the landlord had himself occupied the accommodation immediately after its having fallen vacant and this case would not, therefore, be any authority for occupation of an accommodation by a person other than landlord. So far as occupation by the landlord himself is concerned, the considerations are likely to be different than those applicable to the case of a person, who occupies the accommodation as a tenant. There is no law which prevents a landlord from entering into possession of an accommodation on the outgoing tenant vacating it. Sub-Sec. (2) of Section 7 of the Act only enables a District Magistrate to direct, by a general or special order, a landlord to let or not to let the accommodation to any person, and so long as such an order has not been passed, the landlord is entitled, under the general law applicable to property, to take the accommodation in his own occupation. If the accommodation is subsequently directed to be let out by the District Magistrate to any person under sub-sec. (2) of Section 7 and that order is not complied with by the landlord, the infringment would be punishable under Section 8 of the Act, and it may be said that continuance of occupation by the landlord is in contravention of an order which was passed under sub-sec. (2) of Sec. 7. But where an accommodation is in the possession of a tenant to whom it may have been let out by the landlord without an order of the District Magistrate under sub-sec. (2) of Sec. 7. But where an accommodation is in the possession of a tenant to whom it may have been let out by the landlord without an order of the District Magistrate under sub-sec. (2) of Section 7, it may be that the landlord is liable to be prosecuted under Section 8 to the extent he may be said to have contravened the orders of the District Magistrate, but the same cannot be said of the tenant to whom accommodation may have in the meantime been let out by the landlord, as there is no provision in the Act, either under Section 7 or Sec. 7-A or any other that no person shall occupy an accommodation as a tenant unless letting out the same to him is permitted by the District Magistrate. It is the look out of the landlord to let out the accommodation to a tenant Or not to do so. If without having obtained the permission of the District Magistrate, he does let out the accommodation and transfers possession thereof to the tenant, it is difficult to see how his possession can be said to be in contravention of an order of the District Magistrate passed under sub-sec. (2) of Section 7, as no order is passed under that sub-section against the person to whom accommodation may have already been let out by the landlord. This view may have far reaching effect, inasmuch as the District Magistrate may not be able to take any steps against such a tenant to whom the accommodation may have been let out by the landlord without his permission. But it appears to us, with great respect to the view taken by Waliullah and Bind Basini Prasad, JJ. in Chhotey Lal v. The District Magistrate, Moradabad, AIR 1952 Allahabad 913, that is the plain meaning of the language of sub-sec. (1) of Sec. 7-A, read with sub-sec. (2) of Sec. 7. This view may to some extent appear to be against the supposed policy underlying the Act, but that consideration alone would not justify plain grammatical meaning not being given to the words used in the statute. (1) of Sec. 7-A, read with sub-sec. (2) of Sec. 7. This view may to some extent appear to be against the supposed policy underlying the Act, but that consideration alone would not justify plain grammatical meaning not being given to the words used in the statute. As observed by their Lordships of the Supreme Court in Kanai Lal Sur v. Paramnidhi Sadhu Khan, A.I.R. 1957 SC 907 the first and the primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. "If the words used are capable of one construction only, then it would not be open to the courts to adopt another hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise."It appears to us that the language of sub-sec. (2) of Section 7 and sub-sec. (1) of Sec. 7-A are capable of one and one interpretation alone and it is the one which has been indicated by us above. If it were the intention of the Legislature that the District Magistrate should be able to evict even that tenant whom an accommodation may have been let out by a landlord before the passing of an order under sub-sec. (2) of Section 7, that sub-section would have also provided that no person shall occupy an accommodation as a tenant except with the permission of the District Magistrate. In our view, therefore, if a person has already entered into occupation of an accommodation under a contract of lease with the landlord before an order under sub-sec. (2) of Section 7 has been passed by the District Magistrate, he cannot be said to be in occupation of an accommodation in contravention of the order passed under Sec. 7(2) and cannot be called upon to show cause under Sec. 7-A (1) why he may not be evicted from that accommodation. There is also another reason why no proceedings can be started against the present petitioner under sub-sec. (1) of Sec. 7-A of the Act. 10. There is also another reason why no proceedings can be started against the present petitioner under sub-sec. (1) of Sec. 7-A of the Act. 10. It is contended by the petitioner that he obtained the consent of the landlord for the accommodation being let out to him on 14th July, 1958 and along with that consent applied to the District Magistrate for this accommodation being allotted to him on 15th July, 1958. It is admitted in the counter-affidavit filed on behalf of the opposite parties Nos. 3 and 4, namely, the Rent Control and Eviction Officer and the Commissioner, Lucknow Division, that a number of applications including that of the petitioner were moved for allotment of this disputed accommodation. In para. 4 of the affidavit accompanying the petition, the petitioner has clearly deposed; "That the deponent came to know of this proposed vacancy and he approached Sri Mahabir Prasad Srivastava, M. L. A. to recommend his case for allotment and his case was also recommended by the said landlord. An application for allotment of the said premises was made on 22nd July, 1958." In reply to this paragraph what is stated in the affidavit on behalf of opposite parties Nos. 3 and 4 is: "That the contents of Para. 4 of the petitioner's affidavit are not admitted as they stand. The petitioner had applied for allotment of the premises in question after occupying the same illegally." 11. The petitioner may have applied for the allotment of the premises after having already occupied the same, but the fact remains that he did apply. It was alleged by the petitioner that he had obtained the consent of the landlord for the allotment of this accommodation to him and this allegation is not specifically denied by respondent Nos. 3 and 4. The application which was moved by the petitioner must be with respondent No. 3, and if it does not bear the consent of the landlord, nothing was easier for respondent Nos. 3 and 4 than to say that no such consent was obtained by the petitioner or in any case produced before the R.C.E.O. That being so, we have to take it as established that the petitioner had obtained the consent of the landlord for this accommodation being allotted to him. 3 and 4 than to say that no such consent was obtained by the petitioner or in any case produced before the R.C.E.O. That being so, we have to take it as established that the petitioner had obtained the consent of the landlord for this accommodation being allotted to him. There is no assertion on behalf of the petitioner that vacancy of the accommodation was separately reported by the landlord to the District Magistrate under sub-sec. (1) of Sec. 7. But even if the vacancy was not so reported, this application for allotment of the accommodation by the petitioner, along with the consent of the landlord, was clear intimation to the District Magistrate that the previous tenant had vacated the accommodation. This application was moved by the petitioner, according to the allegations in para. 4 of the affidavit, on 22nd July, 1958 and since this date is also not denied by the respondent nos. 3 and 4, we take it that the application was moved on that date and that consequently, therefore, the District Magistrate was informed at least on that date that the accommodation had fallen vacant, if not on 15th July, 1958, which was the date given out to us during the hearing of this petition. 12. If the District Magistrate had intimation of the vacancy of this accommodation on 22nd July, he was bound to pass an order under sub-sec. (2) of Section 7 as early as possible thereafter, so as to avoid possibility of any loss to the landlord in respect of the rent of the accommodation and in any case within 30 days thereof, i.e., by 22nd August, 1958 latest. When no order was passed by the District Magistrate under sub-sec. (2) of Section 7 within 30 days of thereof, i.e., by 22nd August, 1958 latest. When no order was passed by the District Magistrate under sub-section (2) of Section 7 within 30 days of the receipt of intimation, the landlord became entitled under Rule 4 of the Control of Rent and Eviction Rules, 1949, to nominate a tenant and on such nomination the District Magistrate was bound to allot this accommodation to this nominee, unless for reasons to be recorded in writing, he forthwith allotted this accommodation to any other person. The landlord had already given his consent to the accommodation being allotted to the petitioner, who was thus the nominee of the landlord within the meaning of R. 4 aforesaid. On the expiry of 30 days from 22nd July, 1958, the petitioner became the nominee of the landlord under this Rule 4 and, unless for reasons to be recorded in writing, the District Magistrate were to allot this accommodation "forthwith" to some other person, the petitioner became entitled to an order in his favour. When no order was passed by the District Magistrate even after the expiry of 30 days, the landlord became entitled to let out the accommodation to the petitioner, and the allegation is that it was then on 25th August, 1958, that the petitioner was put in possession of the accommodation by the landlord. The District Magistrate had a right to name the tenant to whom the accommodation was to be let out by the landlord under sub-sec. (2) of Section 7, but when he failed to do so within 30 days, and failed to give any reason forthwith thereafter as to why the accommodation was not to be let out to the petitioner and to name any other tenant instead, the landlord did become entitled to let out the accommodation to the petitioner. The District Magistrate no longer had any jurisdiction to issue any notice under sub-sec. (1) of Sec. 7-A against the petitioner on 13th September, 1958 or to allot the accommodation to the opposite parties nos. 1 and 2 on 12th December, 1958. Any order that may have been passed by him on this latter date was unauthorised and without jurisdiction. Even the subsequent notice which was issued under sub-sec. (1) of Sec. 7-A on 10th May, 1960, and passed, on 8th July, 1960, rejecting the objections of the petitioner were without jurisdiction, and so was the order passed by the Commissioner in revision on 31st October, 1960. The petitioner is in occupation of the accommodation under a lease which has been validly obtained by him and he is not liable to be ejected under the provisions of Sec. 7-A of the Act. 13. This petition is, therefore, allowed. The petitioner is in occupation of the accommodation under a lease which has been validly obtained by him and he is not liable to be ejected under the provisions of Sec. 7-A of the Act. 13. This petition is, therefore, allowed. The order of the Commissioner, Lucknow Division dated 31st October, 1960, and that of the Rent Control and Eviction Officer, Lucknow, exercising the jurisdiction of the District Magistrate under the Control of Rent and Eviction Act dated 8th July, 1960, and the notice issued against the petitioner on 10th May, 1960 under Sec. 7-A(1) are all quashed and set aside. The petitioner will get his costs from the opposite parties nos. 1 and 2.