Research › Browse › Judgment

Allahabad High Court · body

1976 DIGILAW 345 (ALL)

Bireshwar Dey v. U. P. State

1976-05-06

K.C.AGARWAL, R.B.MISRA

body1976
JUDGMENT R.B. Misra, J. - The present appeal is directed against the judgment of a learned Single Judge dated 15th February, 1976 dismissing the petition under Article 226 of the Constitution. The dispute between the parties is regarding a portion of house No. D-40/17, Luchhamanpura, Varanasi. The said house is owned by respondent Nos. 3 to 5. The appellant, Bisheswar Dey, has been occupying this portion of the house as a tenant for the last more than 20 years. It appears that the respondent nos. 3 and 5 applied for permission under section 3 of the U.P. Temporary Control of Rent and Eviction Act. (hereinafter referred to as the Act) for evicting the appellant. The Rent Control and Eviction Officer dismissed the application by his order dated 19th of July, 1969. The landlord, thereupon filed the revision before the commissioner which was allowed by him by his order dated 28th of October, 1970. 1 he tenant thereupon made a representation under section 7-F of the Act. The State Government rejected the representation by its order dated 4th of September, 1971. The tenant feeling aggrieved by the order filed a petition under Article 226 of the Constitution. As said above it was dismissed by the learned Single Judge by his order dated 18th of February, 1976. The tenant has now filed the present appeal. 2. Sri S. N. Kacker appearing for the appellant contends that the State Government has taken erroneous view of the legal position and that has coloured its order. The State Government was labouring under the mis-apprehension that it was an application for release by a landlord under rule 6 of the rules framed under the Act. In point of fact this was an application under sect ion 3 of the Act for permission to file the suit for eviction against the tenant. It is well settled now that in an application under section 3 the need of the landlord and the tenant has got to be compared but this has been completely ignored by the State Government. As the State Government was under the impression that it was a case of release, it took the view that only the need of the landlord has to be taken into consideration. In support of its view it relied on certain authorities of this Court. As the State Government was under the impression that it was a case of release, it took the view that only the need of the landlord has to be taken into consideration. In support of its view it relied on certain authorities of this Court. If the order of the State Government is coloured by the erroneous view of law taken by it. The order certainly cannot be sustained. There is no doubt that the order passed by the State Government under section 7-F of the Act should be a speaking order. The State Government has given a reason different from the one given by the Commissioner but the reason given by the State Government is certainly not warranted by law. 3. Sri Sidheshwari Prasad appearing for the landlord respondent Nos. 3 to 5, however, contends that the State Government has eventually agreed with the finding recorded by the Commissioner and the mere fact that the State Government has given one more reason which may be either untenable or irrelevant will not vitiate his order. The order passed by the State Government on the representation made by the tenant was an order of affirmance and it was quite sufficient if the State Government has agreed with the reasons given by the Commissioner. 4. As stated earlier the State Government has given a reason different from the one given by the Commissioner. The Commissioner has taken into consideration the need of the landlord and that tenant but the State Government took the view that the need of the landlord alone has got to be taken into consideration and on this basis he considered the need of the landlord and said that the need of the tenant has got to be subordinated to the need of the landlord. We are not prepared to accept the contention raised be Sri Sidheswari Prasad that the State Government has agreed with the reasons given by the Commissioner in comparing the need of the landlord and the tenant Sri Sidheswari Prasad in support of his contention placed reliance on Girja Nandani Devi and others v. Erijendra Narain Choudhary, AIR 1967 Supreme Court 1134. The Supreme Court made the following observations : - "It is not the duty of the appellate Court when it agree with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice." 5. There is no quarrel with the proposition laid down by the Supreme Court. The question is whether in this case the State Government has agreed with the reasons given by the Commissioner. The State Government instead of agreeing with the reasons given by the Commissioner had given a different reason and that reason is not tenable in law. In this view of the matter the decision given by the Supreme Court is not of much help to the respondent. 6. In the result the appeal is allowed. The order of the learned Single Judge is set aside and the writ petition is allowed the order of the State Government dated 4.9.1971 is quashed. The State Government is directed to consider the representation a fresh in accordance with law after considering the needs of both the parties. No order as to costs.