Mohammad Sami Kanpur v. Nur Mohammad Kanpur — 1974 DIGILAW 292 (ALL)

JUDGMENT Satish Chandra, J. - One Mohammed Shafi was the tenant of the accommodation in dispute namely, 97/318 Talwa-Mahal, Kanpur Nur Mohammed, the landlord, sued for the eviction of the tenant. The suit was decreed and the decree was upheld in appeal as well as in second appeal on 5th February, 1968. Shortly thereafter, on 14.2-1968 one Mohammad Sami, the present appellant, made an application for allotment of this house. The same was allotted to him on 19th February, 1968. The landlord filed objection but the same was dismissed. The landlord went up to the State Government but the revision also failed. The landlord then came to this Court under Article 226 of the Constitution. 2. The learned single Judge held that the outgoing tenant had neither given any notice of his intention to quit the premises nor had he delivered vacant possession of the premises to the landlord. It cannot hence be said that in law the premises fell vacant. The finding of the State Government that the premises had been let out by the landlord to Mohammad Sami were held to be arbitrary and purely conjectural. The learned Judge was of the opinion that the passing of an allotment order in favour of a person who has come in possession in an unauthorised manner was against the scheme of the Act, which disfavours possession of a vacant premises by non-allottee. It was also held that passing of an allotment order with out prior notice to the landlord was violative of the principles of natural justice inasmuch as the rights of landlord to let out the premises to a tenant of his choice are curtailed by an allotment order. On these findings the writ petition was allowed and the order of allotment as well as order dismissing the revision were quashed. Aggrieved the allottee has come up in appeal. 3. Section 7(2) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 authorises the District Magistrate to direct a landlord to let out to any person any accommodation which is or has fallen vacant or is about to fall vacant. The jurisdiction to make an order of allotment is dependent upon the creation of the vacancy. See Babulal v. Sheonath Das, AIR 1967 Supreme Court 1329. The jurisdiction to make an order of allotment is dependent upon the creation of the vacancy. See Babulal v. Sheonath Das, AIR 1967 Supreme Court 1329. Sub section (l) of section of the Act indicates the circumstances in which an accommodation may become vacant, it has been provided that : 'Every landlord, shall within 7 days after an accommodation becomes vacant by his ceasing to occupy it or by the tenant vacating it or otherwise ceasing to occupy it...... ..._...... .. give notice of the vacancy in writing to the District Magistrate." The Act, therefore, contemplates that an accommodation can become vacant, either on account of the fact that the tenant has vacated it or has otherwise ceases to occupy it In the present case the finding of fact is that sown after the decree for ejectment became final on 5th February, 1966, the erstwhile tenant vacated the accommodation and informed the Rent Control and Eviction Officer that he has done so. It is true that the tenant did not send an intimation of his vacating the accommodation to the landlord, nor did he deliver possession directly to the landlord. Since the landlord does not dispute that the tenant had in fact vacated the accommodation and had engrafted the present appellant in its occupation, it is evident that the finding that the tenant had in fact ceased to occupy the accommodation was bases upon relevant material. So even if the tenant had not intimated the vacancy to the landlord or bad not delivered possession to the landlords, the accommodation would be vacant within meaning of section 7(2) of the Act so as to authorise the District Magistrate to pass an order of allotment, notwithstanding the tact that the tenant may not have absolved himself of the responsibility of giving back vacant possession of the premises to the landlord under the law. 4. The decision in Abdul Mazid v. Mukhtar Husain, 1965 A.L.J. 205, inapplicable in that case it was held that an accommodation cannot be said to be about to fall vacant simply because an ejectment decree had been passed against the tenant. In that case the tenant against whom an ejectment decree had been passed had not vacated the accommodation. 4. The decision in Abdul Mazid v. Mukhtar Husain, 1965 A.L.J. 205, inapplicable in that case it was held that an accommodation cannot be said to be about to fall vacant simply because an ejectment decree had been passed against the tenant. In that case the tenant against whom an ejectment decree had been passed had not vacated the accommodation. In those circumstances it was held that the Rent Control and eviction Officer could not create vacancies against the wishes of the landlord or to affect the rights of the landlord to execute a decree for ejectment against the tenant. This case has no application to a case where the tenant of his own accord has vacated the premises after the passing of the decree for ejectment. 5. On the other hand In Smt. Malika Bai v. Rent Control and Eviction Officers, 1964 A.L.J. 1089, a Division Bench of this Court held that where a tenant against whom all ejectment suit was pending quietly wrote to the District magistrate communicating his intention to vacate the premises inc District Magistrate acquired jurisdiction to allot the accommodation, even though it may be said that he acted imprudently in not consulting the landlord, out the allotment order could not be characterised as without jurisdiction. The principle enunciated there is applicable to the facts of the present case. The fact that the tenant had intimated that he was vacating the premises gave jurisdiction to the Rent Control and Eviction Officer to make an order of allotment. It cannot be said that the accommodation was not vacant or that the allotment order was without jurisdiction. 6. Learned counsel for the respondents submitted that on the case of the appellant himself if he had come in actual physical possession of the accommodation prior to obtaining an order of allotment. Since the accommodation was physically occupied by the Appellant, it could not be said that it was vacant within meaning of section (2) of the Act. We are not impressed by this submission. The accommodation will be deemed to be vacant as soon as the erstwhile tenant gave notice of his intention to vacate the premises to the District Magistrate. That fact having occurred. the accommodation became vacant. We are not impressed by this submission. The accommodation will be deemed to be vacant as soon as the erstwhile tenant gave notice of his intention to vacate the premises to the District Magistrate. That fact having occurred. the accommodation became vacant. The Vacancy will not disappear merely because some unauthorised Person took physical possession of the some the accommodation nonetheless remains vacant entitling the authorities to make an order of allotment. The unauthorised occupant is liable to be evicted under section 7(A) of the Act. 7. We are also not in agreement with the learned single Judge that an order of allotment curtails the rights of the landlord and as such an order of allotment cannot be passed without notice to the landlord. In Smt. Mallka Bai as case the Division Bench held that the action of the Rent Control and Eviction Officer in passing an allotment order without consulting the landlord may be an imprudent act on his part but it cannot be said that any manifest error of law was committed in passing such an order. In view of this authority it cannot be said that the order of allotment passed without notice to the land- lord was without jurisdiction. 8. The principles of natural justice are applicable when the vested rights of a person are adversely affected. The rights of the landlord to let out the premises have been controlled and regulated by the U.P. (Temporary) Control of Rent and Eviction Act, 1941. In accordance with the provisions of the Act the District Magistrate has been empowered to pass an order of allotment requiring the landlord to let out the accommodation to any person. This regulatory provision cannot be said to be adversely affecting any vested right of a landlord requiring compliance with the principles of natural justice so that notice should be issued to the landlord on an accommodation becoming vacant. Moreover, the principles of natural justice are applicable only in so far as the statutory provisions make room for it. Under the Act read with its rules specified provisions have been made for consultation with the landlord in specified circumstances, for instance, Rules 6 and 7. In other situations consultation with the landlord has been dispensed with. This also leads to the inference that the principles of natural justice cannot be superimposed in situations not provided for specifically by the statute. In other situations consultation with the landlord has been dispensed with. This also leads to the inference that the principles of natural justice cannot be superimposed in situations not provided for specifically by the statute. The order of allotment cannot be held to be held to be void on the ground that it was passed without notice to the landlord. 9. The learned single Judge also expressed the opinion that the scheme of the Rent Control Act disfavours unauthorised occupation by non-allottees and so the Rent Control and Eviction officers should discourage such practice by refusing to allot vacant accommodation to such unauthorised occupants. We are unable to agree that such a situation would constitute any invalidity in the order of allotment. It is true that the scheme of the Act is that a person should occupy an accommodation aver obtaining an order of allotment, but the Act also contemplates continuance of such person in peaceful possession after an allotment order has been made in his favour. Section 7(2) of the Act does not prohibit expressly or by necessary implication the making of an order of allotment in favour of a person who has come in possession prior to the making of an order of allotment. The proviso was section 7-A authorises the District Magistrate not to make an order of eviction under section 7-A (l) if he is satisfied, inter aila, that it was inexpedient to do so. The fact that the person in unauthorised occupation has subsequently been granted an order of allotment would be a relevant circumstance within meaning of the proviso. This also suggests that there is nothing is the Rent Control Act which could make an order of allotment passed in favour of a person who was in unauthorised occupation, invalid. 10. In the present case the decree became final on 5th February, 1968. Soon thereafter the tenant vacated. It appears that the appellant came in actual physical Possession after the tenant vacated it. Only a few days later on 9-2-1968 the allotment order passed in favour of the appellant, on his application which was moved on 14th February, 1968. It is not clear whether the appellant came in possession before or after 14th February, 1968. It appears that the appellant came in actual physical Possession after the tenant vacated it. Only a few days later on 9-2-1968 the allotment order passed in favour of the appellant, on his application which was moved on 14th February, 1968. It is not clear whether the appellant came in possession before or after 14th February, 1968. Even if he came in possession a few days perior to it, it cannot be said that be entered into the accommodation forcibly because even according to the case of the landlord the erstwhile tenant Inducted him into the accommodation. 11. In the result the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside and the writ petition is dismissed with costs.