Babu Lal v. Sheonath Das

**A** B ## c **D** E F G The appellant was a tenant of respondents 2 & 3 in Varanasi. The said landlords obtained a decree for ejectment of the tenant from the accommodation. Exercising the Collector's powers under s. 7(2) of the U.P. (Temporary) Control of Rent & Eviction Act 1947, the A!sistant Rent Control and Eviction, Officer passed an order directing the landlords **to** **let** **the accommodation to respondent No.** **1.** Hoy,.·ev~r, ~ul~s<:.quEnt _**ta**_ this order, the landlords allowed the appellant to continue as tenant on enhanced rent. The Assistant Rent Cortrol & Eviction Officer thereupon started proceedings under s. 7A( 1) of the Act, He passed an order under s. 7A(2) directing the appellant to vacate the accommodation. The appellant filed a writ petition but failing to get relief from the High Court, he filed ·a suit asking for a· declaration that the orders p -;sc;d i>y the Assistant Rent Cantrol & Eviction Officer were without jurisdiction. The trial court dismissed the suit, the appellate court decreed it, but on second appeal the High Court restored the decree of the trial court **dismissing the suit.** **The appellant was granted special** **le.ave** **to appeal to** this Court. It was urged on behalf of the appellant ( i) that the District Magistrate had no powers to pass the order of allotment under •. 7{2) till the accommodation had fallen vacant, (ii) that even if he had the power the order would take effect. only when the accommodation fell vaca.;1t and (iii) that the proceedings under s. 7 A were without jurisdiction as there was no contravention of the order under s. 7(2). _HEID_ : (i) The District Magistrate can pass an order under s. 7(2) not only when the accommodation is or bas fallen vacant but also when it is about to fall vacant. In the present . case both the landlord and the tenant had made statements that the accommodation was about to fall vacant. On the materials on the record there could be no doubt that the accommodation was about to fall vacant when the District Magistrate passed the order under s. 7(2). [243 D-E] (ii) The order under s. 7(2) directed the iandiords ro let the accobunodation to the allottee. The order took effect immediatefy It .could not be ssid that the order would take effect only when the aceom modation actually fell vacant. [244 A-Bl BABU LAL _v._ SHEONATH DAS - _December_ 13, 1966 [R. S. BACHAWAT ANv J. M. SHELAT, JJ.] _U.P. (Temporary) Control_ _of_ _Rent and Eviction Act,_ 1947, _ss._ 7(2), 7A(l) & (2)~Land/ord _M:Uring_ _decree against tenant-Collector_ _a1Jo1-_ _**ting accommOdation to another .person-Landlord entering into**_ _**arrange-**_ _ment with tenant_ _to_ _continue_ _his_ _tenancy-Powers_ _of_ _Collector_ _to_ _make_ _**new allotment and**_ _**to**_ _**evict, tenant.**_ (Iii) After the allotment was passed. the landlords agreed to accept the appellant as •. tenant at enhanced rent. This lotting and the contiH nuance of occupation by. the appellant under it were in direct breach pf the all.oh!'ent or~er. There was thus a contravention pf the order and the Distnct ~•Aistrate had therefore jurisdiction to initiate proceedings under sub-sectioni ( 1) ·of s. 7 A and to pass the orders under sub-section• I (2) & (3) of s. 7A. (244 D-Fl ### I MlSup. CI/67-2 # I 242 SUPJtBME COURT REPOllTS [1967] _2_ S.C.ll. Ov11. ArPFLl.A TF Jt:Rlsnrcr10:-; : Civil Appeal No. 2271 of A 1966. Appeal hy >pccial leave from the judgment and decree dated the February 12. 1965 of the Allahabad High Court in Second Appeal No. 2862 of 1963. _B._ C. _Misra._ _,\1._ _V._ _Goswami,_ and _B._ _R._ G. _K._ _Aclwr,_ for the B appellant. _J._ _P._ _Goyal_ and _H._ _K._ _Puri,_ for the respondent No. I. The Judgment of the Court was delivered by Bachawat, J. The appellant is the tenant and respondents Nos. 2 and 3 are the landlords of a non-residential accommodation in a part of a building in Mohalla Bulanala in the city of Varanasi. Respondent No. I as the allottee of the accommodation. Respondent No. 5 is the Assistant Rent Control and Eviction Officer, Varanasi, authorised by the District Magistrate to perform his functions under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act). On February I I, 1956 the landlords obtained a decree for ejectment of the tenant from the accommodation. As the tenant was about to vacate the accommodation, on February 20, 1957, respondent No. _5_ passed order under s. 7(2) of the Act directing the landlords to '!t the accommodation to respondent No. I. On February 22, 1957, the landlords and the tenant agreed that the teriant would continue to occupy the accommodation at an enhanced rent and· would be liable to eviction in execution of the decree for ejectment in the event of his failing to pay the outstanding arrears of rent in certain stated instalments. As the tenant failed _to_ pay the agreed instalments of rent, on May 21, 1957, the landlords in execution of the decree for ejectment obtained an order from the executing court for the issue of a warrant for delivery of possession. In the meantime on February 23, 1957, proceedings were started against the appellant under s. 7 A( I) of the Act. By an order dated March 23, 1957, under s. 7A(2) respondent No. _5_ directed the tenant to vacate the accommodation by March 24, 1957. By another order dated Drcember 2, 1957, under s. 7A(3) respondent No. _5_ directed S.O, P.S. Chowk to evict the tenant and put the allottee in occupation of the accommodation. The tenant filed a writ petition challenging the orders of respondent No. 5. The writ petition was dismissed and the tenant was relegated to a suit. A special appeal from this order filed by the tenant was also dismissed. On Septem ber 9, 1958, the tenant filed the present suit asking for a declaration that the orders passed by respondent No. _5_ were without jurisdiction and for consequential reliefs. The trial court dismissed the suit. The appellate court reversed this decree and decreed the suit. On second appeal, the High Court restored the decree of the ### c D E F G H BABU LAL _v._ SHEONATH DAS _(Bachawat,_ J.) 243 A trial court and dismissed the suit. T!1e tenant has now filed this appeal by special leave. In this appeal the tenant challenges the orders passed by respondent No. 5 under sub-s. (2) of 7 and sub-sections (2) and (3) of ## s. 7 A of the Act. Section 7(2) is in these terms : B ## c D E F G H "7. (l) (a) (b) #### (c) ................... . (2) The District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has· fallen vacant or is about to fall vacant." Under s. 7(2), the District Magistrate can pass an order in respect of an accommodation which is or has fallen vacant or is about to fall vacant. The accommodation must either be vacant or about to fall vacant before he can pass the order under s. 7(2). Jf the <\Ccommodation is neither vacant nor about to fall vacant, when the order under s. 7(2) is passed, the order is void and is without jurisdiction. Counsel for the tenant submitted that the District Magistrate has no power to pass an order of allotment under s. 7(2) unless the accommodation is or has fallen vacant. This submission is based on a misconception. The District Magistrate can pass an order under s. 7(2) not only when the accommodation is or has fallen vacant but"' also when it is about to fall vacant. On the materials ori the record there can be no doubt that the accommodation was about to fall vacant when respondent No. 5 passed the order under s. 7(2). Before passing the order, he issued notices to the landlords and the tenant. On January 5, 1957, the landlords stated before him in writin; that the accommodation was about to be vacated by the tenant. On January 22, 1957, the tenant stated before him in writing that he was going to leave the accommodation in a month's time. On February 12, 1957, the tenant again made a statement before him that he warted to vacate the shop as the decree for ejectment had been passed against him. The declared intention of the tenant that he was about to vacate the accommodation coupled with the decree for ejectment show that on February 20, 1957, the accommodation was on the point of becoming vacant or was about to fall vacant. As a matter of fact in the courts below the appellant did not contend that on February 20, 1957 the accommodation was not about to fall vacant. His contention was that as the accommodation had not actually fallen vacant, respondent No. 5 had no power to pass the order under s. 7(2). 244 SUPREME COUil T llEPOll TS (1967] 2 S.C.ll. Counsel next submitted that even though respondent No. _5_ might have power to pass an order under s. 7(2) when the accommodation was about to fall vacant, the order could take effect only when the accommodation fell vacant. We cannot acce.,t this contention. The order dated February 20, 1957 directed the landlords to Jet the accommodation to the allottee. Respondent No. _5_ had power to pass this order. The order took effect immediately. Counsel for the tenant submitted that the proceedings under s. 7 A were without jurisdiction. Now the District Magistrate can take action under s. 7 A "where an order requiring any accommodation to be let or not to be let has been duly passed under subsection (2) of section 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order, occupied the accommodation or any part thereof". Counsel submitted that as the tenant was in occupation of the accommodation before the passing of the order under s. 7(2), he cannot be said to have occupied the accommodation in contravention of the order. This contention is supported by the decision in _Ram_ _Lal_ v. _Shiv_ _Mani Singh and others('),_ but we cannot agree with the broad statement in this case that the continuance after the allotment order of an occupation previous to the order cannot be an occupation in contravention of the order. It is a question of fact in each case whether a person in occupation of the accommodation since before the allotment order can be said to have occupied the accommodation in contravention of the order, see _A._ _K._ _Khandelwal_ v. _Moti_ _Lal_ _Chawla and others.(2)_ In the instant case after the allotment order was passed, the landlords agreed to accept the appellant as a tenant at enhanced rent. This letting and the continuance of occupation by the appellant under it were _in_ direct breach of the allotlllent order. In the circumstances, the appellant can well be said to have oc.:upied the accommodation in contravention of tl:!e order. The respondent No. _5_ had, therefore, jurisdiction to initiate proceedings under sub-section (I) of s. 7 A and to pass the orders under sub-sections (2) and (3) of s. 7 A. The propriety of this order cannot be questioned in this suit. The appeal is dismissed. Ther.:: will be no order as to costs. A B ### c D F #### G.C. Appeal dismissed. G (I) ~~(1962]~~ ~~A.L.J.~~ ~~260.~~ (2) (1%4] A.L.J. 20.