Jogendra Pal Singh v. Purshottam Dass — 1984 DIGILAW 968 (ALL)

JUDGMENT M. Wahajuddin, J. - The plaintiff-respondent who is admittedly the owner of the premises brought a suit for possession of the premises in suit also alleging that the allotment order upon which the defendant appellant relies is bad in law, illegal and non est. The ground upon which the order was challenged was that the landlord's application for release of the premises in his favour under R. 6 of the Rent Control Rules was pending when the allotment in question was made without disposing of that application first. 2. The defendant appellant maintained that the Rent Control authority had jurisdiction in the matter and the order passed in favour of the appellant is proper and that Section 16 of the Rent Control Act (illegible) Civil suit and the appellant is not in any case a rank trespasser and the suit is to fail. The courts below held that the allotment order in favour of the defendant appellant is bad and illegal for want of compliance of provisions of the aforesaid R. 6. It was held that Section 16 of the Rent Control and Eviction Act 1947 will not bar the jurisdiction of the Civil Court to entertain the suit. The courts below further found that as the allotment order is bad, the possession of the defendant appellant is wrongful and the Trial Court passed a decree for dispossession of the defendant appellants also allowing Rs. 40/- per month as damages from the date of occupation of the premises till delivery of possession. The appellate Court upheld the order of the Munsif and the present appellant has come forward in this second appeal to challenge the finding of the courts below. 3. It is not disputed that the application of the landlord for release of premises was pending when the allotment order was passed. There are pronouncements of this Court to the effect that any allotment order without disposing of the application for release first is bad in law. The case of Rama Devi v. Radhey Shyam, 1967 All LJ 698 is an authority on the point laying down that when the landlord applies for the release of the accommodation under R. 6 the RC and E.O. must decide that application first before passing any allotment order under Section 7(2) and if he does not do so the allotment itself is illegal. To distinguish this ruling it was urged that in that case the allottee had not taken possession and simply an injunction was granted restraining the allottee from taking possession. As regards the law of precedence it is settled that the ratio of the ruling is important and so far as ratio of ruling goes it is to the effect that contravention of R. 6 of the Rent Control Act would render the allotment order illegal. In fact in case of Triloki Nath v. S. D. Varma 1956 All LJ 33 the allotment order itself was quashed on the very consideration. Again it was held that the District Magistrate should consider and make inquiries whether the landlord does bona fide require accommodation for his own occupation and if that is not done then allotment order would be bad and is liable to be quashed on account of contravention of R. 6. In the same volume at page 694 again in the case of G.P. Sharma v. The D. M. Lucknow it was held that R. 6 was violated and on such finding the allotment order was quashed. Learned counsel for the appellant urged that as under Section 7 the Rent Control authorities has the jurisdiction to order to let or not to let the order is not without jurisdiction and consequently the very authority should have been approached for reconsidering its order of allotment and considering any application for release. In this connection reliance was placed upon the case of Mangal Sen v. Rent control and eviction Officer 1972 All LJ 587. It was held that though the allotment order exhausts itself after allottee enters into possession the Rent Control and Eviction Officer has still jurisdiction to cancel allotment order if it is found to have been procured by fraud or misrepresentation. This ruling deals with fraud and misrepresentation and not with every case. Reliance was further placed upon the case of Masood Ahmad v. State of U.P., 1971 Ren CJ 530: AIR 1971 All 544 ). That is simply an authority for the proposition that the District Magistrate has wide powers to pass order to let or not to let, and whatever observations are made are in that background and context. This ruling further deals with the powers of the State Government. That is simply an authority for the proposition that the District Magistrate has wide powers to pass order to let or not to let, and whatever observations are made are in that background and context. This ruling further deals with the powers of the State Government. What has been laid down in this ruling is that the case of release can also be conceived which are not to be under the four corners of R. 6. I have already referred to the Allahabad view concerning the effect of compliance of R. 6. Reliance was further placed upon the case of Ittyavira Mathai v. Varkey, AIR 1964 SC 907 . The facts of that case are distinguishable because what has been held is that even if the suit was barred by time but wrongly not held to be so then decree passed would not be a nullity or non est. Reliance was further placed upon the case of Baijnath Prasad v. Ram Phal, AIR 1962 Pat 72 (FB) and it was urged that if the order of allotment was not challenged before the Rent Control authorities it will be final and would not be open to challenge before the Munsif. 4. It was also argued that prayer for release can be considered even after an allotment and the Rent Control and Eviction Officer could have himself considered the application for release even after allotment. Reliance in this connection was placed upon the case of Smt. Ira Mitra v. A. K. Madhyan, 1968 All LJ 434. Reliance was also placed upon Syed Ajaz Ali Khan v. Mohd. Rafiq, 1975 Ren CJ 35 : ( AIR 1974 All 178 ) (FB) in which it was held that the Government in revision could cancel this order of allotment. Reliance was also placed upon the case of Prabhumal v. RC and E.O. 1978 (UP) RCC 396 in which it was held that the application for release is maintainable even after an ex parte allotment order. Reliance was also placed upon the case of Brij Raj Krishna v. Shaw and Brother,, AIR 1951 SC 115 in which it was held that if the Controller wrongly decides the question of non payment of rent and order eviction of the tenant, his order cannot be questioned in civil court. Reliance was also placed upon the case of Brij Raj Krishna v. Shaw and Brother,, AIR 1951 SC 115 in which it was held that if the Controller wrongly decides the question of non payment of rent and order eviction of the tenant, his order cannot be questioned in civil court. Reliance was also placed upon the case of Ram Swarup v. Shikar Chand 1966 All LJ 360 : ( AIR 1966 SC 893 ) and it was urged that actually it would appear that Civil Court jurisdiction would extend only when the order is nullity. However, actually it does not lay down that Civil court jurisdiction would be barred under S. 16 of the Rent Control and Eviction Act even where the impugned order is not in accordance with the provision of that Act. 5. In fact the crux of the argument of the appellant's counsel is that the rent control authorities had jurisdiction under Section 7 of the Act and consequently the order of allotment would not be a nullity and that the proper course open to the landlord was to seek its modification by the very Rent Control authority or by way of revision etc. So far as that aspect is concerned I may mention that the submission of the learned counsel for the appellant that the Rent Control authority passes the order in administrative side and it can always be reconsidered will have no force in view of the direct pronouncement of this court on the point in Laxmi Ram v. State of U.P., 1967 All LJ 939. In the case of Ganesh Prasad v. State of U.P., 1967 All LJ 745 also it was held that the powers exercised under Rent Control Act are judicial or quasi-judicial functions and there is no power of review unless such powers are expressly conferred. In a Division Bench case, Property Agents v. S. Bhadur, 1964 All U 752: ( AIR 1966 All 424 ) also it was held that the order under Section 7(2) of the Act is quasi-judicial order and there is no jurisdiction to review. I may also mention that the appellant defendant took possession of his own and not with the help of the Rent Control authorities. That being the position there will be no right of revision to the landlord because possession has not been delivered by the authorities. I may also mention that the appellant defendant took possession of his own and not with the help of the Rent Control authorities. That being the position there will be no right of revision to the landlord because possession has not been delivered by the authorities. Of course a revision to the State Government could be open but there is nothing to show that if any party had not made resort to it he cannot come forward with suit if the order itself is not in accordance with the provisions of the Act as to be an order under the Special Act. I may further mention that under Section 9 of the C.P.C. the Civil Court has all civil jurisdiction unless expressly taken away by any special Act and when that is the position the court must be satisfied that the jurisdiction of the civil court is barred under any provisions of any special Act. The only Section which could be referred is Section 16 of the Rent Control and Eviction Act but under Section 16 of the Rent Control Act jurisdiction is barred only when the order in question has been made under the Act. An order passed in contravention of R. 6 of the Act, which requires the Rent Control authorities to first dispose of the application for release cannot be termed as an order in accordance with the Act, rather in view of the authorities already cited such order is illegal. It was urged that the order would not be without jurisdiction when under Section 7 the Rent Control authorities had the powers to give direction to let or not to let. I have considered that. Even if an order is illegal it would not be in accordance with the Rent Control Act so bar of Section 16 would not be attracted and the Civil Court will have jurisdiction. It was further urged that the landlord did not seek quashing of the allotment order and simply sought possession. There could be two situations, one situation would be when possession is given by force by the Rent Control authorities themselves. Obviously in such situation the landlord will have to go in revision before the Commissioner etc. But the other situation is that the possession is taken without help of any lawful authority. There could be two situations, one situation would be when possession is given by force by the Rent Control authorities themselves. Obviously in such situation the landlord will have to go in revision before the Commissioner etc. But the other situation is that the possession is taken without help of any lawful authority. When that would be the position the general jurisdiction of the Civil Court will come into play unless barred by provisions of any special law i.e. Section 16 of the Rent Control Act. In this case I have already held that it is not so. If a person is in illegal occupation and the jurisdiction of the civil court is otherwise not barred the aggrieved party can come forward to seek possession. It was urged that there should have been a prayer for quashing the allotment order. I have considered that aspect. The allotment order was challenged in the suit alright, and it was also found to be illegal order and rightly so when that is the position the plaintiff could seek possession on the strength of his title itself. Any unauthorised occupant can be ejected by Civil Court by granting decree for possession, if the jurisdiction is not otherwise barred. 6. It was next urged that in any case the landlord could go to Rent Control authorities seeking release of the premises and that could have been done. Any party cannot be compelled to go to particular forum or seek particular relief. Actually this court is concerned with the legality of the allotment order and when the allotment order is illegal the plaintiff would succeed on the strength of his title of the house and the defendant's wrongful possession over the premises cannot be continued pending any further proceedings before any Rent Control authorities. If premises is vacant under law and is governed by the Rent Control Act of course the Rent Control authorities can take any steps afresh in accordance with law if it is open to do so and the landlord can also move for a release but in this suit I am not concerned with all these factors. A person has entered into wrongful possession and the courts below have granted a decree in favour of the plaintiff for possession over the premises and that decree is perfectly legal and just so no interference in second appeal would be possible. A person has entered into wrongful possession and the courts below have granted a decree in favour of the plaintiff for possession over the premises and that decree is perfectly legal and just so no interference in second appeal would be possible. It is unnecessary to refer to any further rulings including those of other High Courts I have touched all the important pronouncements of this court directly on the point. 7. In the result this appeal is dismissed costs to the contesting respondents.