Iqbal Narain v. State of Uttar Pradesh — 1975 DIGILAW 495 (ALL)

JUDGMENT T.S. Misra, J. - This petition under Article 226 of the Constitution arises in the following circumstances : One Sri G.D. Datta father of opposite party No. 4 was the owner of two houses adjoining each other having Municipal numbers 407 and 408 respectively situated in Purana Qila, Lucknow. The petitioner is a tenant of house No. 407 on a monthly rental of Rs. 35/-. He occupied this premises in October, 1948. The adjoining house No. 408 is in the tenancy of Sri S. K. Bose. On the demise of Sri G.D. Dutta and his wife the opposite party No. 4 and his brothers and sister inherited the said properties. The opposite party No. 4 has been living in house No. 2 Krishna building Charbagh, Lucknow as tenant thereof on a monthly rent of Rs. 40/-. In January, 1964 an application is moved by the opposite party No. 4 under section 3 of the U.P. (Temporary) Control of Rent and Eviction Act III of 1947 for permission to file' a suit for eviction of the present petitioner Iqbal Narain Mohan from the premises No. Purana Qila and S.K. Bose from the premises No. 408 Purana Qila Lucknow on the ground that his brother Payodhi Kumar Dutta who was then working as an Assistant Superintendent LR.C.A. Office was to retire soon and would settle along with his family members in Lucknow and that the petitioner did not have sufficient accommodation in the house No. 2 Krishna Building Charbagh, Lucknow to accommodate his brother and his family members therein. That application was rejected by the Deputy Collector Lucknow on 7th January, 1966 holding that the need of the applicant was not genuine and urgent. An application under section 7-F of the Act made by the opposite party No. 4 before the State Government was also rejected on 31st December, 1958. Again, on 7th May, 1969 the opposite party No. 4 filed on application under section 3 of the U.P. Act III of 1967 for permission to file a suit for eviction of Iqbal Narain Mohan, the present petitioner, from the premises No. 407 on the ground that the opposite party No. 4 was going to retire shortly and had to settle permanently in his own house at Lucknow. That application was contested by the present petitioner and was rejected by the Rent Control and Eviction Officer. That application was contested by the present petitioner and was rejected by the Rent Control and Eviction Officer. A revision was filed against that order before the Commissioner Lucknow Division who allowed that petition and granted the requisite permission to file a suit for ejectment of the present petitioner. The present petitioner then filed petition under section 7-F of the U.P. Act III of 1947 before the State Government which was, however, rejected by an order dated 12th June, 1973. The opposite party No. 4 then filed an application under section 43(2)(rr) read with section 21 of the U.P. Urban Building a (Regulation of Letting, Rent and Eviction) Act 13 of 1972 for eviction of the present petitioner from the premises in question. That application is still pending for disposal. The petitioner has now sought for a writ in the nature of certiorari to quash the order of the State Government dated 12th June, 1973, and the order of the Commissioner Lucknow Division dated 3rd June, 1972. He has also sought for a writ in the nature of prohibition directing the Prescribed Authority not to proceed with the petition dated 3rd July, 1973, and a writ of certiorari to quash the proceedings started on the said application. The petition had been contested by the opposite party No. 4. 2. For the petitioner, it was urged that the second application filed by the opposite party No. 4 under section 3 of the U.P. Act III of 1947 for the grant of permission to file a suit for eviction of the petitioner from the premises No. 407 Purana Qila was barred by the principle of res judicata inasmuch as his first application moved for the same purpose had been rejected by the Deputy Collector Lucknow also by the State Government. In support of his contention the learned counsel for the petitioner placed reliance on Saniporan Singh v. The Rent Control and Eviction Officer Meerut and others, 1969 A.W.R. 171, where in learned Single Judge had held that in view of the fact that the earlier application for permission to sue had been dismissed on merits on the same facts and same set of circumstances the Rent Control Officer had no jurisdiction to ignore that order and to give him permission to sue. We have, therefore, to see whether the subsequent application was moved by the opposite party No. 4 "on the same facts and same set of circumstances". A copy of the first application is Annexure 4 to the writ petition whereas the copy of the second application in Annexure 7. A perusal of the first application Annexure 4 would disclose that the application was moved against Iqbal Naraian Mohan and S.K. Bose for requisite permission to file a suit for their eviction. Iqbal Narain Mohan is admittedly occupying the premises No. 407 whereas S.K. Bose is occupying the premises No. 408. The Second Application Annexure 7 was moved under section 3 of the U.P. Act III of 1947 against Iqbal Narain Mohan only. S.K. Bose was not pleaded in this application and no relief was sought for against him. Further, it appears from the first application Annexure 4 that the opposite party No. 4 who had moved that application was living in a rented house No. 2 Krishna Building Charbagh, Lucknow. It is alleged in that application that excepting the applicant, other co-sharers have been living out of Lucknow in connection with their jobs. One of them Sri Payodi Kumar Dutt was on 6 months leave preparatory to retirement ending on 4-6-64. It is further alleged that Payodi Kumar Dutt would come down to Lucknow and settle permanently with his family as he would be rendered homeless in Delhi after his retirement and that it had been mutually agreed between the co-shares of the house in dispute that the applicant and Sri Payodhi Kumar Dutta would settle and share in the house at Lucknow. In para 7 of that application it was as serted that the accommodation available with the applicant would not be sufficient to accommodate the family of Payodhi Kumar Dutta and also that of the applicant. In para 9 it was alleged that Payodhi Kumar Dutta and his family had already come to Lucknow and staying with the applicant and experiencing great difficulty and inconvenience due to paucity of accommodation in the occupation of the applicant which consists of four rooms whereas the accommodation in the occupation of the opposite parties consists of 8 rooms which is more than sufficient for the families which together consists of about 6 adults and 4 children. The averment made in para 12 was to the effect that the applicant himself would not have shifted from the house but for the pressing need for more accommodation due to the impending retirement of his aforesaid brother in service at New Delhi. Thus the first application Annexure 4 was moved on the ground that Payodhi Kumar Dutta had taken leave preparatory to retirement, that he had decided to settle permanently in Lucknow and that the accommodation with the applicant in house No. 2 Krishna Building Charbagh, Lucknow was not sufficient to accommodate the family of Payodhi Kumar Dutta therein. The second application Annexure 7 was moved on the ground that the applicant Sunil Kumar Dutt was about to retire shortly and he had to settle permanently in his own house and, therefore, he had requested the present petitioner to vacate the house occupied by him. The opposite party also offered him an alternative accommodation by suggesting that he could shift to house No. 2 Krishna Building Charbagh, Lucknow which was occupied by the opposite party No. 4 and get it allotted in his name. The two application Annexure 4 and Annexure 7 where thus not moved on "the same facts and same set of circumstances" and, therefore, it cannot be said that the Rent Control Officer had no jurisdiction to ignore the earlier order whereby the first application Annexure 4 was rejected. I, therefore, find no merit in the contention that the second application Annexure 7 was barred by principles of res-judicata. 3. It was next urged that the need of the opposite party No. 4 was not genuine and that in fact the opposite party No. 4 wanted to sell the house by having it first vacated by the petitioner so that he may more price. This contention was also raised before the learned Commissioner Lucknow division and was rejected by him. The petitioner had relied on two letters one dated 24th September, 1958 another dated 21st June, 1959 written by A.K. Dutta. The learned Commissioner rejected the contention on the ground that if there was any intention to sell the house in the years 1958 and 1959 that intention could not necessarily be held to be subsisting on the date when the application under section 3 of the U.P. Act III of 1947 was moved. The learned Commissioner rejected the contention on the ground that if there was any intention to sell the house in the years 1958 and 1959 that intention could not necessarily be held to be subsisting on the date when the application under section 3 of the U.P. Act III of 1947 was moved. In my view the learned Commissioner was justified in drawing such an inferences. 4. It was next urged that the need of the tenant petitioner was not considered by the State Government nor was it compared with need of the landlord, hence the order granting the requisite permission was invalid. In support of his contention the learned counsel for the petitioner has placed reliance on Asa Singh v. B.D. Sanwal and others, 1968 A.L.J. 713 (F.B.). It is well settled that for granting permission under section 3 of the U.P. (Temporary) Control of Rent and Eviction Act the District Magistrate is bound to consider also the need of the tenant for the accommodation if such a case is set up by him see Asa Singh v. B.D. Santival and others (supra). In the instant case the Deputy Collector Lucknow had rejected the second application Annexure 7 but that application was allowed on revision by the learned Commissioner, Lucknow Division. A perusal of the order of the learned Commissioner Annexure 9 would disclose that the need of the tenant-petitioner for the accommodation was considered by him. The State Government by its order dated 12th June, 1973 rejected the petition of the petitioner-tenant under section 7-F of the U.P. Act III of 1947. The order of the learned Commissioner was affirmed. While rejecting the petition under section 7-F and thereby affirming the order passed by the learned Commissioner it was not necessary to re-consider the need of the tenant. The learned Commissioner as pointed out earlier, had considered the need of the tenant and while comparing his need with the landlord he found that the need of the landlord was more genuine and pressing. In these circumstances it is difficult to accept the contention that the impugned order of the learned Commissioner as also the State Government were vitiated on the ground that the need of the tenant had not been considered while granting the requisite permission under section 3 of the said Act. 5. In these circumstances it is difficult to accept the contention that the impugned order of the learned Commissioner as also the State Government were vitiated on the ground that the need of the tenant had not been considered while granting the requisite permission under section 3 of the said Act. 5. The other contention raised on behalf of the petitioner was that the order of the State Government does not contain reasons and is not a speaking order. I do not find any merits in this contention as well. The State Government has given reasons for rejecting the petition under section 7-F of the Act III of 1947. 6. It was further urged that the provisions of section 43(2)(r-r) of the U.P. Act XIII of 1972 are in violation of Article 14 of the Constitution. The submission was that under section 43(2)(rr) of the said Act an order of eviction from the building in the tenancy can be passed by the Prescribed Authority if a permission had been obtained by the landlord under section 3 of the Act III of 1947 and that permission had become final and the suit for eviction of the tenant had not been instituted, whereas no such order of eviction can be passed against the tenant if the permission had been obtained under section 3 of the said Act and a suit for eviction had been instituted against him. Thus the provision of section 43(2)(rr) is said to be discriminatory and is, therefore, hit by Article 14 of the Constitution. I am of the view that there is no merit in this contention. The scope of Article 14 of the Constitution has been considered and explained by the Supreme Court in a number of cases, it is now well settled that the principle of equality does not absolutely prevent the State from making differences between persons and things.The state has the power of classification on the basis of rational distinction relevant to the particular subject dealt with. It must, however, be founded on an intelligible differentia which distinguishes persons or things that are grouped together from other left out of the group and that differentia must have a rational relation to the object sought to be achieved by the Statute in question. It must, however, be founded on an intelligible differentia which distinguishes persons or things that are grouped together from other left out of the group and that differentia must have a rational relation to the object sought to be achieved by the Statute in question. So long as the classification is based on rational basis and so long as the persons falling in the same class are treated alike, there can be no question of violating the equality clause. If there is an equality and uniformity within each group the law will not be condemned as discriminatory. See Ram Krishan Dalmia v. S.B. Tendolkar, AIR 1958 Supreme Court 538. In Smt. Prabhaiwati v. Dr. Pritam Kaur, 1972 S.C.C. 849. Supreme Court observed that under the U.P. Act III of 1947 two rounds of litigations are provided for. A landlord seeking to evict a tenant must first go to the District Magistrate for permission. As against the order of the District Magistrate the aggrieved party can go up in revision to the Commissioner. The order of the Commissioner, subject to any order passed by the State Government under section 7-F of the Act, is final, section 7-F empowers the State Government to revise the order of the Commissioner at any time it pleases. There is no time limit for exercising that power. This entire long drawn out process is only for the purpose of deciding whether the permission should be granted to the landlord to sue his tenant for ejectment. If the permission sought is granted then starts another round of litigation from one court to another. The principal function of courts and tribunals is to settle the dispute between the parties and thereby give a quietus to the social frictions generated by the unresolved disputes. As long as a litigation lasts, the tension continues and useful energies will be wasted. This is not all. Every litigation means heavy financial burden to the parties. The merry-go-round of litigation provided by the Act instead of helping the tenants who ordinarily belong to the weaker section of the society is likely to result in their ruination. The power conferred on the District Magistrate, the Commissioner and the State Government has been held to be a judicial power by the Supreme Court. The merry-go-round of litigation provided by the Act instead of helping the tenants who ordinarily belong to the weaker section of the society is likely to result in their ruination. The power conferred on the District Magistrate, the Commissioner and the State Government has been held to be a judicial power by the Supreme Court. Neither section 3 nor section 7-F prescribed under what circumstances the permission asked for should be granted and on what grounds the same could be refused. In the new Act XIII of 1972, the second round of litigation was sought to be avoided by providing in section 43(2)(rr), that : "Where any permission referred to in section 3 of the old Act has been obtained on any ground specified in sub-section (1) or Sub-section (2) of section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub- section, after the commencement of this Act, and a suit for the eviction of the tenant has not been instituted, the landlord may apply to the prescribed authority for his eviction under section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy." it could not, therefore, he said that this provision in section 43 (2) (rr) was discriminatory. The intention of the legislature appeared to be that where permission had been obtained under section 3 of the old Act and that permission had become final but no suit for eviction had been filed the landlord should be permitted to have resort to the simple procedure prescribed under the new Act, 1972 for the eviction of the tenant. Persons falling under section 43(2)(rr) who have obtained permission for eviction of the tenant after protracted litigation under the old Act, could be classified as a separate group distinct from those who obtained permission under section 3 of the old Act and had instituted a suit for ejectment of the tenant. The impugned provision does not make any distinction between persons falling in the same class. 7. The impugned provision does not make any distinction between persons falling in the same class. 7. The learned counsel for the petitioner, however, submitted that under section 43(2)(rr) the prescribed authority would merely execute the order and would not go into the question of validity of the permission or the genuineness of the need of the landlord inasmuch as section 43(2)(rr) provides that it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid and the order shall be final and not open to appeal under section 22. In this connection it may, however, be noticed that even the civil court would not have the jurisdiction to satisfy itself afresh has to the existence and genuineness of any ground to which the permission was granted in a suit commenced by the landlord for eviction of the tenant after obtaining the requisite permission under section 3 of the U.P. Act III of 1947. Ramji Das and others v. Trilok Chanel, 1970 S.C.C. 866 supports this proposition. In that case the Supreme Court laid down : "The proceedings before the District Magistrate under section 3(2) and before the Commissioner under section 3(3) of the U.P. (Temporary) Control of Rent and Eviction Act are quasi-judicial in character. By section 3(4) of the Act the decision of the Commissioner under sub-section (3) of section 3, subject to any order passed by the State Government under section 7-F of the Act, is declared final. The respondent did not prefer any petition before the State Government tinder section 7-F of the Act on that account, the order passed by the Additional Commissioner exercising powers of the Commissioner under section 3(3), became final. Section 14 of the Act provides that no order made under the Act, the State Government or the District Magistrate shall be called in question in any court. It is true that the finality of the order declared by section 3(4) and section 16 will not exclude the jurisdiction of the High Court in exercise of the jurisdiction under Article 226 of the Constitution to issue an appropriate writ quashing the order. But subject to interference by the High Court, the decision must be deemed final and is not liable to be challenged in any collateral proceeding. But subject to interference by the High Court, the decision must be deemed final and is not liable to be challenged in any collateral proceeding. The High Court was in error in holding that the decision of the Rent Control and Eviction Officer was, in the suits filed by the appellant, open to the objection that the officer did not consider the need of the tenant." The Rent Control and Eviction Officer had jurisdiction to hear and decide the matter. Even if it is assumed that he committed an error in the exercise of his jurisdiction, the error could be corrected only in a proceeding under section 7-F of the Act by approaching the State Government and by way of a writ petition to the High Court, but the order made by the Rent Control and Eviction Officer and confirmed by the Additional Commissioner could not be challenged in the suit." 8. In M/s. Jain Brothers v. Union of India, AIR 1970 Supreme Court 772 the validity of section 297(2) (c) of the Income tax Act, 1961, was challenged on the ground that the provision created a discrimination between two sets of assesses with reference to the completion of assessment proceedings on or after 1-4-1968. The contention was that Article 14 was attracted because the classification made was purely arbitrary depending on the accident of the completion of assessment. This contention was repelled holding that the classification was based on intelligible differentia having reasonable relation to the object intended to be achieved. Applying the principle laid down in that case it can legitimately be held that a landlord who had obtained permission under the old Act and the permission had become final but he had not filed a suit for ejectment, forms a distinct class and as the provisions of section 43(2)(rr) apply to all persons who come within this class they are not discriminatory. 9. Lastly, the learned counsel for the petitioner referred me to Rule 15(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 which provides that an application for the release of an accommodation shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order 6 of the First Schedule to the Code of Civil Procedure, 1908 and that if there are more than one landlords, the application shall be signed by all the co-landlords. It was submitted that the application moved by the opposite party No. 4 against the petitioner under section 43(2)(rr) had not been signed by all the landlords. It could not, however, be made out whether the alleged defect was pointed out to Prescribed Authority, under section 43(2)(rr) the Prescribed Authority is precluded from satisfying itself afresh as to the existence of any ground on which the permission was granted. But it does not debar the Prescribed Authority from looking into the matter as to whether the application moved before him under section 43(2)(rr), read with section 21 of the Act is in conformity with sub-rule (2) of Rule 15. It is not known whether any objection to that effect has been raised before the Prescribed Authority inasmuch as no copy of that objection has been annexed to the writ petition. If such an objection were raised the Prescribed Authority would be competent to decide the same. In the circumstances I find it difficult to quash the proceedings pending before the Prescribed Authority on the alleged ground that the application had not been signed by all the co-landlords. 10. No other point was urged. 11. In the result, the petition fails and is accordingly dismissed with Costs.