Rama Devi v. Radhey Shyam — 1966 DIGILAW 328 (ALL)

ORDER S.S. Dhavan, J. - This is a Plaintiff's second appeal from a decree of the II Civil judge, Kanpur reversing that of the III Addl. Munsif Kanpur and dismissing the Plaintiff-Appellant's suit for an injunction to restrain the first Defendant-Respondent from taking possession of a shop in pursuance of an order passed by the Rent Control and Eviction Officer Kanpur "allotting" the shop to him. The facts are these. The Plaintiff-Appellant Rama Devi is a tenant of the entire premises known as No. 50/171 Naughara Kanpur of which the owner and landlord is Ananti Devi, the second Defendant-Respondent. The tenancy in favour of the Appellant was created more than twenty live years before the filing of the suit, the agreed rent being Rs. 37/8/- p.m. The Plaintiff alleged in her plaint that from the very commencement of the tenancy ^e had been sub-letting the accommodation to various subtenants under the express sanction and consent of the landlord; that she sub-let a shop on the ground floor to one Durga Prasad Sonar; that this sub-tenant defaulted in payment of rent and consequently she obtained a decree for his ejectment on 24th February, 1958 and in March she obtained possession of the accommodation; that before executing the decree she informed the Rent Control and Eviction Officer (hereinafter called R.C. and E.O.) of the vacancy of the aforesaid accommodation and applied for its release in her favour on the ground that she needed it for her own use that her application was ultimately rejected on grounds which were extraneous, irrelevant and immaterial; that the order was also illegal because it purported to create a sub-tenancy of the shop without the consent of the Plaintiff that it was also illegal because it was passed in violation of Rules 6 and 7 of the U.P. Control of Rent and Eviction Rules. The Plaintiff further alleged that the R.C. and E.O. while rejecting her application for the release of the shop allotted it to the first Defendant Radhey Shyam who wanted to occupy it. She contended that the order in favour of Radhey Shyam was invalid and without jurisdiction and he had no right to occupy the hop. She asked for an injunction to restrain tae Defendant Radhey Shyam from taking possession of the shop in pursuance of the illegal order of allotment. 2. She contended that the order in favour of Radhey Shyam was invalid and without jurisdiction and he had no right to occupy the hop. She asked for an injunction to restrain tae Defendant Radhey Shyam from taking possession of the shop in pursuance of the illegal order of allotment. 2. The owner of the premises, Ananti Devi, was impleaded as proforma Defendant but no relief was claimed against her. The suit was contested by Radhey Shyam, the first Defendant, who is the "allottee" of the accommodation under the order of the R.C. and E.O. He denied that the order of the Rent Control and Eviction Officer rejecting the Plaintiff's application under Rule 6 and allotting the shop to him was illegal or ultra vires. He asked for the dismissal of the suit. 3. The trial court framed three issues: (1) Whether the allotment order in favour of the Defendant No. 1 was illegal; (2) whether the suit was barred by Section 16 of the U.P. Control of Rent and Eviction Act; and (3) to what relief the Plaintiff was entitled? It held that the order of allotment was passed in violation of Rule 7 of the U.P. Control of Rent and Eviction Rules inasmuch as the Plaintiff had not been consulted before the shop was allotted to the Defendant Radhey Shyam. It also held that the order was without jurisdiction as it purported to allot a portion of the accommodation in the tenancy of the Plaintiff whereas the R.C and E.O. had no jurisdiction to split up and divide the accommodation into two. It decreed the suit and issued a permanent injunction restraining the Defendant-Respondent Radhey Shaym from taking possession of the disputed accommodation. 4. On appeal the learned Civil judge disagreed with the finding of the trial court that the order of allotment was illegal. That court had held that the order of the R.C. and E.O. rejecting the Plaintiff's application under Rule 6 for the release of disputed accommodation in her favour was passed in contravention of the provisions of Rule 6. Reversing this finding the learned Judge held that there was no contravention of Rule 6 as the Officer had inquired into the genuineness of the Plaintiff's need and found that it was not genuine. Reversing this finding the learned Judge held that there was no contravention of Rule 6 as the Officer had inquired into the genuineness of the Plaintiff's need and found that it was not genuine. He also disagreed with the finding of the trial court that the R.C. and E.O. had violated Rule 7 of the U.P. Control of Kent and Eviction Rules. That rule provides that "where a portion of accommodation falls vacant and the owner is in occupation of another portion thereof the District Magistrate shall before making the allotment order consult the owner and shall so far as possible make the allotment in accordance with the wishes of the owner". It may be noted that the material word in Rule 7 is "owner". But the trial court equated it with the landlord and held that where a tenant-in chief has sub-let a portion of the accommodation which subsequently falls vacant, he is entitled to be consulted by the R.C. and E.O. before the vacant portion is allotted again. It held that as the Plaintiff had not been consulted by the R.C. and E.O. before passing the order of allotment in favour. of Defendant Radhey Shyam, there had been a violation of Rule 7. The appellate Judge disagreed with this view and held that Rule 7 applied to the owner of the accommodation and not to a landlord who is not an owner. For these reasons he held that the order of allotment in favour of the Defendant Radhey Shyam was legal and the Plaintiff was not entitled to an injunction. He allowed the appeal and dismissed the suit. The Plaintiff has come here in second appeal. 5. I have heard Mr. H.N. Seth for the Appellant and Mr. M.N. Shukla for the Respondent at considerable length. Three arguments have been advanced by Mr. Seth in support of this appeal. First, he contended that the order of the RC and EO rejecting the Appellant's application Under Rule 6 is illegal as it was passed without complying with the provisions of that rule. Consequently, the accommodation had been "allotted" without a proper consideration of the Appellant's application Under Rule 6 and therefore the order of allotment u/s 7(2) is illegal. Secondly Mr. Consequently, the accommodation had been "allotted" without a proper consideration of the Appellant's application Under Rule 6 and therefore the order of allotment u/s 7(2) is illegal. Secondly Mr. Seth argued that the order of allotment is without jurisdiction as it was addressed to the wrong person namely the paramount landlord whereas it should have been addressed to the Appellant as tenant-in-chief, for she was the landlord for the purpose of sub-letting this accommodation. Thirdly, learned Counsel contended that the order of allotment is without jurisdiction for the additional reason that it purports to divide the accommodation into two parts, which the RC and EO had no jurisdiction to do. 6. It is b-yond dispute--and indeed conceded by counsel for both sides--that if the order of RC and EO rejecting the Appellant's application Under Rule 6 is illegal, the result must be that the order of allotment in favour of the Defendant-Respondent Radhey Shyam was passed without properly considering the Appellant's application Under Rule 6 and must be set aside. I must therefore consider this question first, for if it is decided in favour of the Appellant it will not be necessary to consider the other two arguments of Mr. Seth. 7. But before considering this question I must dispose of a preliminary objection raised by the learned Counsel for the Defendant-Respondent. Mr. Shukla contended that this Court has no jurisdiction to consider the validity of the order passed by the RC and EO Under Rule 6 in view of the bar imposed by Section 16 of the UP Control of Rent and Eviction Act. That section runs thus: "16. No order made under this Act by the State Government or the District Magistrate shall be called in question in any court". The exclusion of the Civil Courts is in express and clear terms. Mr. Seth conceded that this is not a case where exclusion of jurisdiction has to be implied or inferred from the language or scheme of an Act. The only question therefore is whether this express bar leaves any scope for the jurisdiction of the civil courts to interfere and if so, in what types of cases. Counsel for the Respondent relied on certain observations of the Supreme Court in Ram Swarup v. Shikar Chand 1966 AWR 77. The only question therefore is whether this express bar leaves any scope for the jurisdiction of the civil courts to interfere and if so, in what types of cases. Counsel for the Respondent relied on certain observations of the Supreme Court in Ram Swarup v. Shikar Chand 1966 AWR 77. In that case it was observed that the jurisdiction of the Civil Courts to examine the legality of a particular order is not excluded, inspite of an express bar to this effect, in certain cases. One of them is where the impugned order is a nullity--as for example where it is passed by an authority which had no power to pass it. Another is where the order has been passed without complying with the provisions of the Act which confers the power to pass such an order. The Supreme Court relied on an observation of the Privy Council in Secretary of State v. Mask and Company 67 Ind App 2C2: 1940 AWR PC 132 to the effect that even where jurisdiction were excluded the Civil Courts had jurisdiction "to examine into cases where provisions of the Act have not been complied with, or the statutory tribunal had not acted in conformity with the fundamental principle of judicial procedure." 8. Mr. Seth relied on this observation and argued that the order of the RC and EO rejecting the Appellant's application for the release of the accommodation Under Rule 6 was passed without complying with the provisions of Rule 6. On the other hand, Mr. Shukla contended that there was no violation of non-compliance of Rule 6 and the Appellant can only argue that the order of RC and EO was wrong or perverse or unreasonable. Counsel contended that this Court cannot interfere even if it thinks that the order is wrong or perverse or unreasonable because its jurisdiction is expressly barred u/s 16 of the Act. I have to consider whether the RC and EO complied with the provisions of Rule 6 before passing the order rejecting Appellant's application for release of the accommodation in her favour. That rule provides: "6. Occupation by Landlord. When the District Magistrate is satisfied that an accommodation which has fallen vacant or is likely to fall vacant is bona-fide needed by the landlord for his own occupation the District Magistrate may permit the landlord to occupy it himself. That rule provides: "6. Occupation by Landlord. When the District Magistrate is satisfied that an accommodation which has fallen vacant or is likely to fall vacant is bona-fide needed by the landlord for his own occupation the District Magistrate may permit the landlord to occupy it himself. This rule requires that the District Magistrate (or the RC and EO) before allowing or rejecting the landlord's application must be satisfied that the accommodation is bonafide needed by the landlord for his personal occupation. If he is so satisfied, he must ordinarily allow the landlord's application and release the accommodation in his favour; on the other hand if he is satisfied that the accommodation is not needed by the landlord or that his need is not bonafide, he must reject the application. Therefore the Act requires that before he decides the application Under Rule 6 the landlord must apply his mind to the question whether the accommodation is needed bonafide by the landlord or not. If he does not, the order will be deemed to have been passed without complying with the provisions of Rule 6 and the court can set it aside. 9. In the present case the RC and EO did consider whether the Appellant's need was genuine or not, because the impugned order contains the following conclusions "I therefore after hearing the parties do not adjudge the need of the chief tenant to be genuine and therefore, reject her application". Mr. Shukla contended that this Court cannot go behind this finding and inquire into the validity of the reasons on which it is based. According to learned Counsel, Rule 6' merely requires that the RC and EO should apply his mind to and decide: the question whether the accommodation is bonafide needed by the landlord. He pointed out that the sentence quoted above clearly shows that he had applied his mind and come to a definite finding that the landlord's need was not genuine. 10. I cannot accept this argument in such broad term. I agree with the learned Counsel that the court cannot consider whether the order Under Rule 6 is correct or incorrect, reasonable or unreasonable. This Court may think that the Appellant's claim was genuine and the conclusion of the RC and EO to the contrary is wrong, but this will not give it jurisdiction to interfere in view of the bar of Section 16. 11. This Court may think that the Appellant's claim was genuine and the conclusion of the RC and EO to the contrary is wrong, but this will not give it jurisdiction to interfere in view of the bar of Section 16. 11. But, in my view, if the conclusions of the RC and EO are based on facts which are irrelevant, the court has jurisdiction to interfere. Rule 6 requires that the DM should be satisfied that the accommodation is bonafide needed by the landlord. What is satisfaction and how is he to be satisfied? In my view if his satisfaction is based on irrelevant considerations, it is no satisfaction as contemplated Under Rule 6 and in that case this Court can hold that the vital condition Under Rule 5 has not been complied with. To give an illustration, if the landlord applies for the release of a part of the accommodation on the ground that he needs it for carrying on a practice at the bar and the RC and EO rejects his application with the remark, "It is very unwise on your part to join a profession which is already over-crowded and therefore your need is not genuine", it can hardly be said that he was satisfied as required by Rule 6. For these reasons I think that the court can consider whether the satisfaction of the RC and EO as required by Rule 6 is based on relevent or irrelevent considerations and if the latter, it can hold that the satisfaction is fictitious and no satisfaction in law. 12. In the present case the Appellant, as the tenant-in-chief, applied for the release of the accommodation in dispute on the ground that she wanted to start the business of a Parchun (retail) shop. The RC and EO deputed the Supply Inspector to make am inquiry. After considering his report, the RC and EO heard the parties and admitted affidavits and counter affidavit filed by them. There was no procedural irregularity in the inquiry held by him. But in the order rejecting application, he observed "The tenant-in-chief told the SI that she wants to start the business of Parchun shop. During the arguments it was stated on behalf of the tenant-in-chief that there are one or two Parchun shops in the vicinity. There was no procedural irregularity in the inquiry held by him. But in the order rejecting application, he observed "The tenant-in-chief told the SI that she wants to start the business of Parchun shop. During the arguments it was stated on behalf of the tenant-in-chief that there are one or two Parchun shops in the vicinity. On behalf of other Applicant it was asserted that the locality in which the shop in dispute is situate is a cloth market and therefore, it would not be profitable from any stretch of imagination. I also think that the running of a Parchun shop amongst the cloth market cannot be reasonable. I therefore, after hearing the parties, do not adjudge the need of the chief tenant to be genuine and therefore, reject her application". This observation indicates that the RC and EO took the following facts into consideration: (1) The locality in which the shop is situate is a cloth market; (2) a parchun shop in this locality would not be profitable and (3) that opening such a parchun shop in a cloth market is not reasonable. 13. In my opinion, these reasons are irrelevant to the question whether the Appellant's need of the shop is genuine or not. If a person wants to set up a business in a particular locality it is for him or her to consider whether the enterprise will be profitable or not. It is not for the RC and EO to decide whether her decision is reasonable or unreasonable. He can only consider the question whether her need for the shop is genuine or not. A person may decide to engage in a business full of risks and hazards, but this is no ground for concluding that his need is not genuine. If the RC and EO has said that "I do not believe that you really intend to open a shop here and your alleged need is only, a cover for letting out the shop to some one else", this would have been a relevant ground for rejecting the application. But the RC and EO had no jurisdiction Under Rule 6 to hold that the Appellant's need was not genuine because he thought that her intention to open a new business in the locality was unreasonable. Mr. But the RC and EO had no jurisdiction Under Rule 6 to hold that the Appellant's need was not genuine because he thought that her intention to open a new business in the locality was unreasonable. Mr. Shukla argued vehemently that RC and EO must really have meant that he did not believe that the Applicant wanted to open a shop in that locality. But I cannot read into the order words which are not there nor am I prepared to agree that the RC and EO did not believe the Appellant's version that she wanted to open a shop in the locality because there were no similar shops in existence. The absence of similar shops would, in my opinion, be a reason for starting a new business because of lack of competition. 14. For these reasons I hold that the order of RC and EO rejecting the Appellant's application Under Rule 6 was based on irrelevant considerations and therefore passed without really satisfying himself whether her need was genuine or not. This order must be set aside. 15. It is conceded that if the order Under Rule 6 is held invalid, the allotment order in favour of the Defendant Radhey Shyam cannot stand because, in that case, it must be deemed to have been passed without properly considering the landlord's application Under Rule 6. It is the settled view of this Court that where a landlord applies for the release of the accommodation Under Rule 6 the RC and EO must decide his application before passing an order of allotment u/s 7(2) and if he does not, the order of allotment itself is illegal. For this reason the so-called allotment order in favour of Radhey Shyam must be held illegal. 16. In view of this finding it is not necessary for me to consider the other arguments advanced on behalf of the Appellant. 17. I hold that the Defendant Respondent Radhey Shyam is not entitled to occupy the accommodation in dispute under the impugned order of allotment and the Plaintiff Appellant is entitled to an injunction to restrain him from doing so. 18. I allow this appeal, set aside the decree of the 'lower appellate court and restore that of the trial court. 19. During the pendency of this appeal this Court had passed an order res-training the Defendant-Respondent from taking possession of the accommodation in dispute. 18. I allow this appeal, set aside the decree of the 'lower appellate court and restore that of the trial court. 19. During the pendency of this appeal this Court had passed an order res-training the Defendant-Respondent from taking possession of the accommodation in dispute. Subsequently this order was vacated on the Respondent giving an undertaking to this Court that in the event of this appeal being allowed, he would vacate the premises within six months of the decision of the appeal. The attention of the learned Counsel for the Respondent is drawn to this undertaking and to the consequences if it is not complied with.