Murlidhar Agarwal v. State of U. P. — 1968 DIGILAW 163 (ALL)

JUDGMENT Satish Chandra, J. - This petition under Article 226 of the Constitution prays that the order passed by the State Government on 20th October, 1967, be quashed, and the respondents be directed to evict the respondent No. 2 in accordance with Section 7-A of U.P. (Temporary) Control of Rent and Eviction Act. 2. The petitioners are the landlords of the premises No. 3 Sheo Charan Lal Road, Allahabad. They had purchased the premises from Sri Ram Swaroop Gupta by a sale-deed, dated 26.3.1962. Sri Gupta, the previous owner had, by a deed, dated 13th October, 1952 leased the premises for a period of 10 years to Ram Agyan Singh, respondent No. 2. Sri Singh used the premises for exhibiting cinematograph films. Disputes having arisen, the previous owner filed suits for recovery of rent as well as for ejectment against Sri Singh. These suits are pending. According to Sr. Singh, the period of the lease commenced in May, 1955. Even so the period of lease came to an end in May, 1965. The present landlords instituted an application under Rule 6 read with Section 7 of the Rent Control Act for release of the accommodation in their favour. On 3.12.1965 the Additional District Magistrate allowed the application and permitted the petitioners to take the premises into their personal occupation on the finding that the premises were in illegal occupation of Sri Singh. Sri Singh filed a representation before the State Government against that order under Section 7-F of the Rent Control Act. The petition was rejected on 10th January, 1966, on the ground that there was no provision for any interference by the Government with orders passed by the District authorities under Rule 6. 3. On 4th December, 1965, the petitioners filed an application for the eviction of Sri Singh under Section 7-A of the Rent Control Act. The second respondent filed a detailed objection. The Additional District Magistrate heard both parties at length and on 18.6.1966 directed the issue of a notice under clause (ii) of Section 7-A for the eviction of Sri Singh. He held that Sri Singh was in an unauthorised occupation since the inception of his tenancy because he never obtained an order of allotment under the Act and that, in the circumstances of the case, he was not inclined to give benefit of the proviso to Section 7-A to Sri Singh. 4. He held that Sri Singh was in an unauthorised occupation since the inception of his tenancy because he never obtained an order of allotment under the Act and that, in the circumstances of the case, he was not inclined to give benefit of the proviso to Section 7-A to Sri Singh. 4. Sri Singh went up in revision to the Commissioner. The Additional Commissioner confirmed the findings and the order of the Additional District Magistrate. He held that the occupation of Sri Singh was unauthorised, as it was without an allotment order, and that, though the contract of tenancy may not be void, the lessor was liable to prosecution under Section 8 of the Act and the tenant was liable to be proceeded with for eviction under Section 7-A of the Act. The premises would be deemed to be vacant in law and liable to allotment. The order of release in favour of the landlords was valid. He also emphasised that the order of release was based upon a finding that the need of the landlords was bonafide and that finding was not challenged before him on behalf of Sri Singh. The landlords were not guilty of any delay in proceeding under Section 7-A and there was no expediency also because the landlords wanted the premises to run their own business. He then observed that there was no sufficient reason for interfering with the discretion of the District Magistrate in refusing to give the benefit of the proviso to Section 7-A to the unauthorised occupant. 5. Aggrieved, the second respondent filed an application under Section 7-F of the Act before the State Government. On 20th October, 1967, the State Government allowed the application. It was held that in the interest of justice, it was necessary that Sri Singh be not evicted from the premise. The orders of the Additional District Magistrate and the Additional Commissioner were set aside. Subsequently, Sri Singh appears to have made an application before the State Government on 13th January, 1968, the State Government communicated to the parties a synopsis of the reasons, on the basis of which the said order had been passed. It stated that the Government found that Sri Ram Agyan Singh was running a cinema under a licence and under a lease executed in 1953. It stated that the Government found that Sri Ram Agyan Singh was running a cinema under a licence and under a lease executed in 1953. When the District Magistrate gave the licence, he had satisfied himself that Sri Singh was in lawful occupation of the premises. Since Sri Singh was in lawful occupation, he was entitled to the benefit of the proviso to Section 7-A(1) of the Act. Under the Act his tenancy could not be terminated nor could he be ejected thereunder. 6. Aggrieved, the landlords have come to this Court. It was urged that the State Government was in error in finding that the District Magistrate, while granting a licence under the Cinematograph Act, had satisfied himself that Sri Singh was in lawful occupation and consequently entitled to the benefit of the proviso was self-contradictory. It was also urged that the view of the State Government that the tenancy of Sri Singh could not be terminated and he could not be evicted under the Rent Control Act was patently erroneous. 7. At the hearing, the learned Standing Counsel produced the file of the case for persual. He also filed a copy of the opinion expressed by the Deputy Minister, which was approved by the Minister, and on the basis of which the order had been passed on 20.10.1967. A perusal of that opinion shows that the Deputy Minister had not come to the conclusion that the District Magistrate had satisfied himself that the possession of Sri Singh was lawful. He had only approved the position that the District Magistrate should have satisfied himself about the valid possession by Sri Singh of a suitable building, while granting the cinema licence to him. The finding, as recorded in the Synopsis, dated 20th January, 1967, is obviously erroneous. Further, the second finding referred to in the synopsis relates to the proviso to Section 7-A(1). Section 7-A provide that when an order to let or not to let an accommodation has been passed under Section 7(2) and the District Magistrate believes that any person has, in contravention of the said order, occupied the said accommodation, he can call upon such person to show-cause why he should not be evicted therefrom. Section 7-A provide that when an order to let or not to let an accommodation has been passed under Section 7(2) and the District Magistrate believes that any person has, in contravention of the said order, occupied the said accommodation, he can call upon such person to show-cause why he should not be evicted therefrom. The proviso then states :- "Provided that no order under this section shall be passed if the District Magistrate is satisfied that there has been undue delay or otherwise it is inexpedient to do so." In the context, the proviso would apply where the possession of the occupant is admitted, or held to be unauthorised. If it is lawful, that is, it is not in contravention of an order passed under Section 7(2), clause (1) of Section 7-A itself will not be attracted and no occasion for applying the proviso would arise. The learned Counsel for the petitioner was right in his submission that, on the finding of the State Government that Sri Singh was in lawful occupation of the premises, there was no point in giving him the benefit of the proviso. A perusal of the detailed reasons now filed shows that the Government was of the opinion that there was really no vacancy; and the implication appears to be that the order releasing the accommodation in favour of the landlords under Rule 6, being tantamount to an order of allotment under Section 7(2), was invalid, because there was no jurisdiction to pass such a order when the accommodation was neither vacant nor about to fall vacant. The State Government relied upon the decision of this Court in Vishwamitra v. Rent Control and Eviction Officer, 1967 ALJ 500, where it was on a review of earlier authorities of this Court held that an accommodation does not become about to fall vacant even though a decree for ejectment may have been passed, so long as Executing Court has not issued warrants for delivery. Mere termination of tenancy under the Transfer of Property Act was not enough to justify the passing of an order of allotment. Similarly, mere termination of a tenancy even by efflux of time itself would not make the accommodation 'about to fall vacant'. The State Government then observed that the suits for ejectment of the defendant were still pending. Mere termination of tenancy under the Transfer of Property Act was not enough to justify the passing of an order of allotment. Similarly, mere termination of a tenancy even by efflux of time itself would not make the accommodation 'about to fall vacant'. The State Government then observed that the suits for ejectment of the defendant were still pending. The Government also took into account the fact that Sri Singh had been granted a licence under the Cinematograph Act and the District Magistrate, before granting the licence, should have satisfied himself about the valid possession of the building by Sri Singh. It was observed that it was expedient to give the benefit of the proviso to Sri Singh. 8. The learned counsel for the petitioners challenged the legality of the central and vital finding on the question of vacancy. 9. It was urged that the case of Vishwamitra mentioned above, was on the facts, not applicable to the present case. In Vishwamitra's case, the tenancy commenced in 1936. At that time, the Rent Control Act was not in force. The tenant did not require an order of allotment under Section 7 of the Rent Control Act. The Rent Control Act protected such a tenant from being evicted on the expiry of the contractual period of the lease. 10. The rule laid down in Vishwamitra's case and in the cases mentioned therein that no vacancy arises till a warrant for delivery of possession is issued, applies when a person was in possession as a tenant without contravening the provision of the Rent Control Act and his contractual tenancy comes to an end by a notice to quit or by efflux of time. in such a case, the Rent Central Act provides protection to the tenant against ejectment. He becomes what is popularly known as a statutory tenant. He is, under the Rent Control Act, liable to pay the rent, and remains immune form being evicted except on the grounds mentioned in Section 3. Since the Act protects such classes of tenants, it could be said that the Act intended that the accommodation in their possession would not be deemed vacant or about to fall vacant so as to create jurisdiction to allot it under Section 7 of the Act, till there was no imminent danger of his being actually evicted. Since the Act protects such classes of tenants, it could be said that the Act intended that the accommodation in their possession would not be deemed vacant or about to fall vacant so as to create jurisdiction to allot it under Section 7 of the Act, till there was no imminent danger of his being actually evicted. That is why, it was held that the accommodation in the possession of such a person would not become vacant or about to fall vacant so long as the Execution Court did not issue the warrant for delivery of possession. 11. In the case of Laxmi Narain v. Rent Control Officer, 1962 ALJ 213, the accommodation in dispute had been let out by the landlord to one Smt. Beni Devi. Subsequently, a suit for ejectment was filed against her. The suit was decreed. The decree had not been put in execution, when the impugned order of allotment was passed. The allotment order was held without jurisdiction on the ground that the accommodation was neither vacant nor about to fall vacant. That was also a case of a tenant in possession in spite of a decree for ejectment having been passed. The Bench observed that, in the circumstances of that case, the shop could not be said to be about to fall vacant, simply because an ejectment decree had been passed against Beni Devi. The rule in that case was specifically enunciated with reference to the facts of that case. It was no one's case and there was no finding, that Beni Devi had been in unauthorised occupation or that she was sued for eviction as a tress-passer simplicitor. 12. In Dr. A.C. Das v. T.R.O., 1962 ALJ 553, one Dr. Hukku was the tenant of the ground-floor of a building. Dr. Hukku used to run a clinic in the front portion and used the back portion for accommodation of his patients. After the death of Dr. Hukku, his sister, who was respondent No. 2 in that case, inherited the tenancy and the clinic. She continued to run the clinic in the front portion and reserved the back portion for her residence. She entered into a partnership with Dr. A.C. Das for running the clinic. Disputes having arisen, she filed a suit for the dissolution of the partnership. During its pendency, Dr. Das applied for and obtained an order of allotment. She continued to run the clinic in the front portion and reserved the back portion for her residence. She entered into a partnership with Dr. A.C. Das for running the clinic. Disputes having arisen, she filed a suit for the dissolution of the partnership. During its pendency, Dr. Das applied for and obtained an order of allotment. This order was held bad and without jurisdiction on the ground that neither there was a vacancy nor was the accommodation about to fall vacant. The accommodation was all along in the possession of a lawful tenant. The landlord had not terminated the tenancy. The tenant had not left the accommodation or any part of it. So, that was also not a case, where a trespasser was in occupation. The observation that termination of a tenancy would not make the accommodation vacant were made in the context of the fact of that case. The Bench observed : "There is no restriction on a landlord's right to terminate a tenancy by a notice to quit; when he cannot do under the Act is to sue the tenant except when certain circumstances exist;- vide Rati Ram v. Mithan Lal, 1960 ALJ 134. If those circumstances do not exist, a landlord cannot file a suit for ejectment of a tenant, even though his tenancy has been terminated and consequently, the accommodation in his occupation cannot be said to be vacant." 13. It is obvious that this dicta applies to a person who was recognisable as a tenant under the Rent Control Act. It would not be attracted where a trespasser was in occupation or where a person took possession in contravention of a general or special order of allotment under Section 7(2) of the Rent Control Act. 14. Similarly the case of Abdul Majid v. Mukhtar Hussain, 1965 ALJ 205, was also a case of a tenant who was in occupation of the accommodation as such. The landlord filed a suit for ejectment against him. The suit had been decreed; but an allotment order was passed before the decree could be put in execution. It was held that the accommodation was not about to fall vacant and the order of allotment was without jurisdiction. 15. These were the cases relied upon in Vishwamitra's case. The landlord filed a suit for ejectment against him. The suit had been decreed; but an allotment order was passed before the decree could be put in execution. It was held that the accommodation was not about to fall vacant and the order of allotment was without jurisdiction. 15. These were the cases relied upon in Vishwamitra's case. These catena of cases dwell upon one aspect of the concept of vacancy within the ambit if Section 7 of the Rent Control Act. The rule laid down in these cases would apply where a person, who is recognised by the Rent Control Act as a tenant and whose possession is protected thereunder. But cases where a rank trespasser is in occupation belong to an entirely different category. Similarly, a case, where a person takes possession of an accommodation in contravention of a general order under Section 7(2) directing the landlords not to let any accommodation, without an order of allotment, would also not be covered by the rule laid down in the above-mentioned cases. They constitute another distinct class of cases. In such cases, the occupation is from the very inception, in contravention of the Rent Control Act. The Rent Control Act does not recognise or protect such occupation and therefore, in the eye of the Rent Control Act, accommodation remains vacant, so as to attract jurisdiction of allotment under Section 7(2) and of eviction of the unauthorized occupant under Section 7-A. 16. The case of Property Agents v. Shamsher Bahadur, 1964 ALJ 752, is a case of this nature. In that case, the landlord executed a lease of an accommodation in favour of the Property Agents without an allotment order and in contravention of a pre-existing general order under Section 7(2). The lessee executed a sub-lease without obtaining the requisite permission under Section 7(3) of the Rent Control Act. Relying upon the Full Bench decision of this Court in Udhoo v. Prem Parkash, 1963 ALJ 406, it was held that the contract of lease between the landlord and the tenant, even though in violation of a general order under Section 7(2) of the Act, may be valid, but it would be binding between the lessee and the landlord, and not upon the Rent Control authorities. Even when such a contract has been entered into, it was open to the Rent Control Officer to evict the lessee under Section 7-A of the Act. The Bench then observed (Para. 8) :- ".........it follows that in such circumstance, he would have the power to make an allotment of the accommodation under Section 7(2) in favour of some other person. In the present case, there was, in Lucknow, in existence a general order under Section 7(2) of the Act prohibiting the landlords from letting out any accommodation without first obtaining permission in writing from the Rent Control and Eviction Officer. The lease, date July 13, 1958 was executed in violation of this provision. In these circumstances, it was open to the Rent Control and Eviction Officer to evict the appellant under Section 7-A of the Act and to allot the accommodation in favour of Sri Shamsher Bahadur." The basis of the decision was that the leases being not binding on the Rent Control authorities, they could proceed under the Rent Control Act on the footing that the accommodation was vacant and available for allotment. The lessee in such a case was not a person, who was recognised or protected by the Rent Control Act even at the inception of the lease and could be ejected under/Section 7-A. 17. The facts of the present case are similar to the case of Property Agents, mentioned above. The Additional District Magistrate found that there was a general order under Section 7(2) in existence, when the lease was executed in favour of the second respondent. He further found that the second respondent had failed to show that any intimation of the vacancy was given by the previous owners to the District Magistrate, before the second respondent took the lease. The possession of the second respondent was unauthorised since the very inception of his tenancy because he did not hold any allotment order in his favour. He could not be deemed to be a statutory tenant. His occupation continued to be unauthorised and in contravention of the provisions and orders made under the Rent Control Act. These findings were confirmed by the Additional Commissioner in revision. The reasons given by the State Government do not touch findings, much less say anything to the contrary. 18. The decision of another Division Bench in Sangam Lal v. Rent Control and Eviction Officer, Spl. These findings were confirmed by the Additional Commissioner in revision. The reasons given by the State Government do not touch findings, much less say anything to the contrary. 18. The decision of another Division Bench in Sangam Lal v. Rent Control and Eviction Officer, Spl. Appeal No. 595 of 1961, decided on 4.8.1966, is also in point. There, the accommodation had been let out without obtaining an order of allotment from the District Magistrate. There was in existence a general order under Section 7(2) prohibiting the landlords from letting out an accommodation without the permission of the District Magistrate. It was held that the occupation of the lessee was wholly unauthorised, with the result that, in the eye of law, there was a vacancy. 19. On the findings the present case is in line with the cases of the Property Agents and Sangam Lal cited for the petitioners. The case of Vishwamitra as also the authorities mentioned in it are not applicable to the instant case. The State Government misapprehended the true legal position and the correct import of the decisions of Vishwamitras, case, in holding that the accommodation in dispute in the present case was not vacant, when the order of release was passed on 3.12.1965. It may be mentioned that in Onkar Nath v. Chhajju Ram, 1963 ALJ 180, it has been held that an order of release under Rule 6 is, like any other order, an order of allotment under Section 7(2) of the Act. 20. The State Government considered the question of vacancy to be the main point involved in this case. Its view of this principal question being in law erroneous, it is difficult to sustain the ultimate order passed by it. 21. The State Government also took into consideration the fact that the second respondent had been granted a licence under the Cinematograph Act and that while granting the licence, the District Magistrate should have satisfied himself about the valid possession of a suitable building by Sri Singh. But this did not detract the Government from considering the question whether there was any vacancy or whether the possession of the respondent No. 2 was lawful. No provision under the Cinematograph Act or the Rules framed thereunder requires the District Magistrate to be satisfied that the licencee was in lawful possession. But this did not detract the Government from considering the question whether there was any vacancy or whether the possession of the respondent No. 2 was lawful. No provision under the Cinematograph Act or the Rules framed thereunder requires the District Magistrate to be satisfied that the licencee was in lawful possession. It primarily requires the District Magistrate to be satisfied that the applicant for a licence was in effective control, management and enjoyment of the building. Further, even if the District Magistrate had to satisfy himself about the valid possession of an applicant for a licence, that does not detract the Rent Control Authorities from the duty to determine that question, if raised in a particular case. Clause (1) of Section 7-A authorizes the issue of a notice of ejectment where the possession is in contravention of an order under Section 7(2) of the Act. The question whether the possession was in such contravention will have to be determined in those proceedings. It could not be left to the so-called satisfaction of the District Magistrate while grating a licence under the Cinematograph Act. This consideration was therefore, of no importance in the present proceedings. 22. The State Government also considered the fact that the unauthorised occupation of the second respondent commenced in 1955 and so, the question could not be raked up in 1955. This aspect was, no doubt, relevant to the question whether the proviso should be applied, that is to say, on the question whether it was inexpedient to direct the ejectment of the person in occupation. The Additional District Magistrate and the Additional Commissioner had both emphasised the fact that the second respondent had expressly agreed in the lease that he would deliver vavant possession of the accommodation to the owners on the expiry of ten years. According to the second respondent, the lease commenced in May, 1955. Even so, the bargain kept on till May, 1956 only. They held that the second respondent had not come with clean hands. He did not abide by the terms of the bargain agreed to by him. 23. The State Government has not considered any of these aspects nor has it given any reason why these substantial findings were ignored. Even so, the bargain kept on till May, 1956 only. They held that the second respondent had not come with clean hands. He did not abide by the terms of the bargain agreed to by him. 23. The State Government has not considered any of these aspects nor has it given any reason why these substantial findings were ignored. The Government has mentioned that the Additional District Magistrate rejected the objection of Sri Singh, inter alia, on the ground that his conduct does not entitle him to the protection of the proviso and then it made laeonic observations, "but he has not mentioned the conduct of the opposite parties". The State Government itself has not mentioned any conduct of the landlords which may make the case inexpedient for eviction under the proviso. The landlords held to the term agreed and did not move in the matter for 10 years. It was on the expiry of the agreed period of ten years that they moved for obtaining possession under the Act. There is nothing in the elaborate order of the State Government, to indicate which conduct of the landlords appeared to it as objectionable. 24. In my view, the State Government having not considered the relevant and material aspects germane to the question of the expediency under the proviso, its order cannot but be held to be manifestly erroneous. It was incumbent upon the State Government to have met the substantial findings of the authorities below him, before it could validly set aside their orders. Under the circumstances, the order of the State Government liable to be set aside. 25. In Onkar Nath v. Chhajju Ram (supra) the Division Bench, relaying upon an earlier Division Bench decision of this Court in Prem Shankar v. Provincial Cooperative Bank, 1952 ALJ 520, held that an order of release was an order under Section 7(2) of the Act. If so, a person in occupation in contravention of such an order would be within the purview of the provisions of Section 7-A(1). In Syed Mohd. Hussian v. Rent Control and Eviction Officer, 1960 ALJ 546, it was held that an order of release could be enforced by way of proceedings under Section 7-A. This decision by a Single Judge of this Court was expressly approved by the Division Bench in Onkar Nath's (supra) case. 26. Mr. In Syed Mohd. Hussian v. Rent Control and Eviction Officer, 1960 ALJ 546, it was held that an order of release could be enforced by way of proceedings under Section 7-A. This decision by a Single Judge of this Court was expressly approved by the Division Bench in Onkar Nath's (supra) case. 26. Mr. Seth appearing for the respondent No. 2, relied upon Ram Gopal v. Brij Lal, 1963 AWR 415, for the proposition that an order of release is not an order under Section 7(2) of the Act and it could not be enforced by way of proceedings under Section 7-A. In that case, the learned Single Judge had held that the order of release was invalid, because there was no vacancy. But he went on to observe on the basis of Haji Abdul Shakoor v. Commissioner, 1952 ALJ 208, that an order of release was not an order under Section 7 of the Act. The decision in Haji Abdul Shakoor's (supra) case was specifically overruled by the Division Bench in Onkar Nath's (supra) case. Hence the decision in Ram Gopal's (supra) case cannot be treated as laying down good law. 27. Further, the proceedings under Section 7-A, in the present case, are not being directed against the second respondent merely on the ground that he was in possession in contravention of the order of release but primarily on the basis that his possession was in contravention of the general order under Section 7(2). The latter ground alone is sufficient to confer jurisdiction under Section 7-A. 28. As the petition succeeds on the merits, it is not necessary to deal with subsidiary points raised on behalf of the petitioners that the subsequent order of the State Government dated 20th January, 1968, communicating the synopsis of the reasons to the parties was not an order, and could not be looked into, because it was not duly authenticated, as required by Article 166 of the Constitution. Similar arguments were raised in respect of the statements of reasons filed by the Standing Counsel during hearing of the case. The order of 20th January, 1968, was not an independent order. It only communicated the synopsis of the reasons, upon which the order dated 20th October, 1967, was passed. Similar arguments were raised in respect of the statements of reasons filed by the Standing Counsel during hearing of the case. The order of 20th January, 1968, was not an independent order. It only communicated the synopsis of the reasons, upon which the order dated 20th October, 1967, was passed. Similarly the statements of reasons filed by means of an affidavit were those, upon which the State Government had passed the order on 20th October, 1967. The only effective order binding the parties was that passed on 20th October, 1967. 29. In the result, the petition succeeds and is allowed. The impugned order of the State Government dated 20th October, 1967, is quashed. The petitioners would be entitled to their costs from the respondent No. 2.