Sheo Nath Dass v. Babu Lal, Amanatullah — 1965 DIGILAW 62 (ALL)

ORDER D.P. Uniyal, J. - One Babu Lal, Respondent No. 1, was tenant of a shop in premises No. C.K. 59/6, Bulla Nala, Varanasi City, since 1923. The landlord instituted suit No. 629 of 1953 for his ejectment and recovery of arrers of rent. During the pendency of the suit the Appellant and several others applied to the District Magistrate for allotment of the shop. The Rent Control and Eviction Officer, RCEO for short, issued a notice to the landlord and the tenant (Respondent) to intimate whether the shop was going to fall vacant in the near future. On 5.1.1957 the landlord wrote to say that the shop was about to be vacated by the tenant and it may be released in his favour. The Respondent also intimated on 22.1.1957 that he was going to leave the shop in a month's time. Two days later he made a statement on the same lines to the RCEO. tiring satisfied that the shop was about to fall vacant the RCEO allotted it to the Appellant by an order dated 20.2. 1957. But despite the said order the Respondent did not vacate the shop. 2. Meanwhile a consent decree was passed on 22.2.1957 in the suit filed by the landlord, and on the same day a compromise was arrived at between the landlord and the Respondent whereunder it was agreed that the latter would remain in occupation of the shop so long as he paid enhanced rent, and on his committing default in respect of two consecutive instalments he would render himself liable to be evicted. Subsequently there was default on the part of the Respondent and the landlord executed the decree on 18.5.1957 and got a warrant issued for delivery of possession. On 21.5.1957 a formal dakhaldehani was drawn up. However, the allottee was unable to obtain actual physical possession of the shop. 3. But before the decree came to be executed by the landlord the allottee had applied for and got a notice issued u/s 7A(l) of the Rent Control and Eviction Act to the Respondent, calling upon him to vacate the shop by 21.3.1957. Then followed proceedings u/s 7A(2) and (3) [culminating in the eviction of the Respondent on 2.12.1957. 4. On being evicted from the shop in pursuance of the order u/s 7 A (3), the Respondent filed a writ petition in this Court for quashing the allotment order. Then followed proceedings u/s 7A(2) and (3) [culminating in the eviction of the Respondent on 2.12.1957. 4. On being evicted from the shop in pursuance of the order u/s 7 A (3), the Respondent filed a writ petition in this Court for quashing the allotment order. The writ petition was dismissed on 20.12.1957 and the Special Appeal against, it met a similar fate. He then commenced the suit out of which this appeal has arisen, for a declaration that the orders of the RCEO dated 21.3.1957 and 2.12.1957 u/s 7 A. (1), (2) and (3) resulting in his eviction were ultra vires, void and ineffectual. 5. The allotment order was challenged on the ground that the shop was not vacant on the date the allotment order was passed and that under the consent decree the Respondent was entitled to remain in occupation as tenant. It was alleged that the warrant of the executing court for delivery of possession was a mere paper transaction which was never effectuated, that the tenancy of the Respondent had not been legally terminated and his possession was throughout lawful and the orders directing his eviction were without jurisdiction. 6. The Appellant allottee, on the other hand, pleaded that the landlord and the tenant (Respondent) having unequivocally stated that the shop was about to fall vacant, the allotment order in his favour took full effect and the Respondent's possession from the date of the allotment order became unlawful. He contended that in any case after the decree had been executed and a warrant for delivery of possession issued the Respondent ceased to have any claim to remain in occupation and, as such, his eviction was legally justified. 7. The Munsif dismissed the suit and held that the allotment order and the proceedings consequential to it were within jurisdiction and that the Respondent had no right to occupy the shop after the date of the allotment order. 8. The learned Civil Judge disagreed with the findings of the trial court and reversed the decree dismissing the suit. He came to the conclusion that a valid allotment could be made only after the shop had been vacated by the Respondent. 8. The learned Civil Judge disagreed with the findings of the trial court and reversed the decree dismissing the suit. He came to the conclusion that a valid allotment could be made only after the shop had been vacated by the Respondent. He held that the Respondent continued to be a tenant even after the executing court had issued a warrant for delivery of possession and that the dakhaldehani was wholly fake and of no legal effect, and the orders issued by the RCEO for eviction of the Respondent were without jurisdiction and void. 9. The first question that falls to be decided is whether the RCEO had jurisdiction to make the allotment in favour of the Appellant on 20.2.1957. Both the landlord and the Respondent tenant had informed the RCEO about the impending vacancy of the shop. The jurisdiction to make an allotment order arises when the District Magistrate, is satisfied that the accommodation has either fallen vacant or is about to fall vacant. In view of the unambiguous statements of the landlord and the tenant that the accommodation was a bout to fall vacant the District Magistrate was within his jurisdiction to pass the order of allotment in favour of the Appellant. The consent decree which came to be passed in the Civil suit was subsequent to the allotment order and could not affect its validity. The consequence of the consent decree and the compromise was that so long as the decree remained in operation the Respondent acquired a right to remain in occupation of the shop and the allotment order did not take effect. It remained, as it were, in a state of suspended animation. But when the decree was executed V.y seeking the eviction of the Respondent and a warrant for delivery of possession was issued by the executing court the jurisdiction of the District Magistrate to enforce the allotment order revived and took full effect. 10. The learned Civil Judge was of the opinion that the allotment order became a dead letter as soon as the consent decree was passed. It seems to me that this view is based on a misapprehension. An allotment order remains alive till it is revoked or set aside on the ground that it has become impossible of enforcement due to the action of the allottee or some other justifiable cause. It seems to me that this view is based on a misapprehension. An allotment order remains alive till it is revoked or set aside on the ground that it has become impossible of enforcement due to the action of the allottee or some other justifiable cause. From the moment the ejectment decree was put into execution by issue of a warrant for delivery of possession the Respondent's possession ceased to be lawful and he became liable to be evicted by the executing court as well as by the order of the District Magistrate passed u/s 7A(3). 11. The learned Counsel for the Respondent contended that the District Magistrate can have no jurisdiction to make an allotment order until there is actual vacancy and the tenant ceases to occupy the accommodation. He sought to reinforce his argument by reference to Sub-section (1) of Section 7A, which provides that 'when an allotment order is passed and the District Magistrate believes or has reason to believe that any person has, in contravention of the said order, occupied the accommodation, he may call upon the person to show cause why he should not be evicted therefrom'. It was suggested that the phrase 'has occupied in contravention of the allotment order' postulates that the accommodation has been occupied by someone subsequent to and in breach of the said order and that the act of occupation which precedes the passing of the order is not within the prohibition of Section 7A (1). 12. If this were the true interpretation of Section 7A (1) it would follow that a valid allotment order can be passed only when the accommodation has been vacated by the former tenant. This argument completely omits to take note of the terms in which Section 7(2) is framed. It is this section which gives the jurisdiction to the District Magistrate to make the order of allotment in respect of fan accommodation 'which is or has fallen vacant or is about to fall vacant'. If it had been intended that the allotment order should be passed only after the accommodation has fallen vacant then the use of the words 'is about to fall vacant' would be wholly otiose in the section. These words are not a surplus age and must be given their ordinary grammatical meaning. If it had been intended that the allotment order should be passed only after the accommodation has fallen vacant then the use of the words 'is about to fall vacant' would be wholly otiose in the section. These words are not a surplus age and must be given their ordinary grammatical meaning. In other words, when the District Magistrate believes or has reason to believe that accommodation is about to fall vacant he derives power and jurisdiction to make the order of allotment. 13. It seems to me that the words 'has occupied' in Sub-section (1) of Section 7A bear the same connotation as is contained in the phrase 'is in occupation.' In the setting in which Section 7A(1) occurs in the Act and regard being had to the jurisdiction and power derived by the District Magistrate u/s 7(2), the words 'has occupied' must be given a wider meaning and it must be held that a person occupying the accommodation from before the allotment order is liable to be proceeded against u/s 7A (1). An anomaly appears to have been created by the use of the words 'has occupied' in Section 7A(l)and it is time that the Legislature made its intention manifest by introducing some such words as 'is in occupation' in place of the words 'has occupied' in that section. 14 Sri G.P. Bhargava, learned Counsel for the. Respondent, relied on the observations made by Desai, C.J in Ram Lai v. Sheo Mani Singh (1962 AWR 220 at p. 222j that "If a person has already entered into occupation of an accommodation under a contract of lease with the landlord before an order under Sub-section (2) of Section 7 has been passed by the District Magistrate, he cannot be said to be in occupation of the accommodation in contravention of the order passed u/s 7(2) and cannot be called upon to show cause u/s 7A (1) why he may not be evicted from that accommodation." 15. On the other hand, Sri S.N. Kacker, the learned Counsel for the Appellant, invited my attention to the case of R.K. Khandelwal v. M.L. Ghawla ( 1964 AWR 36 ) where the learned Chief Justice propounded a view contrary to that expressed by him in tae case of Ram Lal (1). On the other hand, Sri S.N. Kacker, the learned Counsel for the Appellant, invited my attention to the case of R.K. Khandelwal v. M.L. Ghawla ( 1964 AWR 36 ) where the learned Chief Justice propounded a view contrary to that expressed by him in tae case of Ram Lal (1). In the latter case he stated as follows: "It a person occupies an accommodation before an allotment order is passed, and continues to be in occupation after it is passed, he can be said to occupy it in contravention of it if it is not passed in his favour. 16. It is difficulty to reconcile the two contrary views. I am of the opinion that the courts must lean in favour of a harmonious construction of the statute, and in so doing read the different parts of the Act as being consistent with each other. The provisions of Section 7A(1) when considered in the light of the above principle must be understood to mean that if a person is in occupation of an accommodation from before he can still be said to occupy the accommodation in contravention of the order if he continues to occupy it after the order has been passed in favour of another person. 17. Another argument of the learned Counsel of the Respondent was that the RCEO acted without jurisdiction in issuing orders u/s 7A(1), (2) and (3) for the eviction of the Respondent after the consent decree had came into existence. It was said that the compromise arrived at between the landlord and the tenant resulting in the consent decree had the effect of reviving the tenancy of the Respondent, and any order for eviction issued during the continuance of the consent decree was illegal and ultra vires. It may be conceded that under the consent decree the Respondent became entitled to remain in occupation and the allotment order was held in abeyance. Whatever rights the Respondent may have had under the consent decree, he ceased to have any title to remain in occupation after the 18th May, 1957 when a warrant was issued by the executing court for delivery of possession and from that date the possession of the Respondent became unlawful and he became liable to be evicted. [Vide Lachhmi Narain v. Rent Control and Eviction Officer, Lucknow (3) (1962 AWR 161)]. 18. [Vide Lachhmi Narain v. Rent Control and Eviction Officer, Lucknow (3) (1962 AWR 161)]. 18. The Respondent was evicted on 2.12.1957 in pursuance of the order u/s 7A(3). The status of the Appellant from that date was that of a tenant in occupation by virtue of the allotment order. The Respondent could not, therefore, legitimately complain against his dispossession, firstly because he had incurred liability to be evicted under the civil court decree and, secondly because there was already a valid order of allotment in favour of the Appellant in respect of the accommodation. There was thus no right in the Respondent to claim any relief in respect of the accommodation as he could no longer claim to be a tenant. The suit, as framed was, therefore, misconceived. The Respondent having no present right to claim possession, the court had no jurisdiction to grant him a relief of declaration in respect of an accommodation which had been validly allotted to another. 19. I am, therefore, of the opinion that the Respondent had been rightly dispossessed on 2.12.1957 and the orders passed by the RCEO for his eviction were not liable to challenge on any ground whatsoever. 20. I accordingly allow this appeal, set aside the decree of the Civil Judge and restore that of the court of first instance, and dismiss the Plaintiff's suit. However, in the circumstances of this case I make no order as to costs.