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DR. (SMT.) KESHAV DEVI versus SHRI GIRDHARI LAL PAHWA & ORS

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1987 AIR 22 1987 SCR (1) 126 1987 SCC (1) 92 JT 1986 778 1986 SCALE (2)720

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DR. (SMT.) KESHAV DEVI V. SHRI GIRDHARI LAL PAHWA & ORS [1986] RD-SC 223 (5 November 1986)

SINGH, K.N. (J) SINGH, K.N. (J) MUKHARJI, SABYASACHI (J)

CITATION: 1987 AIR 22 1987 SCR (1) 126 1987 SCC (1) 92 JT 1986 778 1986 SCALE (2)720

ACT:

U.P. Urban Buildings (Regulation of Let- ting, Rent and Eviction) Act, 1972/U.P.

Urban Buildings Regulation of Letting, Rent and Eviction) Rules, 1972:

Sections 16(1)(a) & 17(2)/Rule 19. Build- ings--Part of in occupation of landlord for residential purpose--Allotment of any other part of building to be made in favour of person nominated by landlord.

HEADNOTE:

. One Mauji Ram Gupta was the owner of a house consisting of ground floor and first floor. When the vacancy in the first floor arose, the landlord applied for release of the premises u/s. 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Respondent No. 4, the Additional District Magistrate, rejected the claim of the landlord and allotted the first floor to the appellant. Thereafter, Respondent No. 1 pur- chased the disputed house on 18.7.77 and occupied the ground floor. The aforesaid order of allotment was set aside on 18.8.77 by the District Judge with a direction to respondent No. 4 to reconsider the applications made for allotment of the premises in accordance with law.

Respondent No. 4 reconsidered the applica- tions and by his order dated 4.1.78, again allotted the premises to the appellant after rejecting the claims of other applicants.

However, in a review petition filed by re- spondent No. -landlord, Respondent No. 4 set aside the aforesaid order of allotment by his order dated 14.12.81 on the ground that since the premises in dispute was a part of the landlord's building which he was occupying, it was mandatory under s. 17(2) of the Act that notice should have been issued to the landlord and since no notice had been issued to the landlord, the order was vitiated.

Aggrieved by the order of Respondent No. 4 the appellant filed a revision application before the District Judge. The District Judge set aside the order dated 14.12.81 passed by Respondent No. 4 but the same was restored by the High Court in a writ petition filed by respondent no. 1. The High Court also directed respondent no. 4 to consider the 127 applications for allotment after giving notice to the landlord-respondent no. 1.

Dismissing the appeal to this Court,

HELD: 1. The allotment order dated 4.1.78 issued in appellant's favour was rendered illegal for the non-compliance of the mandato- ry provisions of sec. 17(2) of the Act. In that view even if there was any procedural defect in entertaining the review application, it would not be proper and desirable to inter- fere with the order of the Addl. District Magistrate, more so, when the High Court has already upheld that order. [I35C]

2.1 When a building or a part of a build- ing falls vacant or is likely to fall vacant, the District Magistrate under s. 16(1) of the Act has jurisdiction to issue allotment order requiring the landlord to let the building or part thereof to the person specified in the order. The landlord may apply to the District Magistrate for release of the whole or any part of such building under s. 16(i)(b) of the Act. If the release application is allowed, the landlord is permitted to occupy the build- ing or part thereof as the case may be. But if release application is dismissed the District Magistrate is empowered to issue allotment order in favour of an applicant, and in pursu- ance thereof the allottee is entitled to take possession. [131G-H] 2.2. Before applications for allotment are considered by the District Magistrate, it is mandatory for him to serve notice of the vacancy on the landlord informing him the date on which the allotment is to be considered as prescribed by Rule 9 of the U.P. Urban Build- ings (Regulation of Letting, Rent and Evic- tion) Rules, 1972. The object and purpose of the notice to the landlord regarding the date fixed for allotment proceedings is to enable him to file his objections, if any, to the allotment proceedings or to make application for release of the premises as contemplated by s. 16(1)(a) of the Act or to nominate a tenant of his choice if he himself is in occupation of a portion of the building. An allotment order made without giving notice to the land- lord as required by Rule 9(3) would be ren- dered illegal. [131H-132A, C-D] 2.3. Section 17(2) of the Act lays down that where a part of a building is in occupa- tion of landlord for a residential purpose, the allotment of any other part thereof under s. 16(1)(a) shah be made in favour of a person nominated by the landlord. This provision safeguards interest of the landlord to have a tenant of his choice if he is 128 occupying a portion of the building. The legislature enacted sec. 17(2) with a view to ensure peaceful living to a landlord and for that purpose, it permitted the landlord to have a tenant of his choice. The landlord's valuable right cannot be taken away by the District Magistrate while exercising his powers of allotment under sec.16(1)(a) of the Act. [132H-133B] In the instant case, no notice of the allotment proceedings was issued to G.L.

Pahwa, respondent no. I, although the appel- lant as well as the Addl. District Magistrate both knew that G.L. pahwa had stepped in the shoes of landlord and that he was occupying ground floor of the building. The allotment order was made in appellant's favour on 4.1.78, but the landlord, though residing in a part of the building was denied opportunity of nominating a tenant of his choice as contem- plated by sec. 17(2) of the Act. In these circumstances there can be no doubt that the order of the Addl. District Magistrate allot- ing the premises to the appellant was com- pletely without jurisdiction and against the plain terms 0/sec. 17(2) of the Act. [133G- 134A] Yoginder Tiwari v. District Judge, Gorakhpur and Ors., [1984] 2 SCC 728 & Babu Singh Chau- han v. Rajkumar Jain & Ors., [1982] 3 SCR 114, relied upon.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

157 of 1985 From the Judgment and Order dated 20.1.1984 of the Allahabad High Court in W.P.

No. 1404 of 1983.

V.M. Tarkunde and Shakeel Ahmed Syed for the Appellant.

S.C. Maheshwari, R.D. Upadhyay and Manoj Saxena for the Respondents.

The Judgment of the Court was delivered by SINGH, J. This appeal by special leave is directed against the judgment of the High Court of Allahabad (Lucknow Bench) dt. January 20, 1984 setting aside order of the Addl.

District Judge, Lucknow dt. January 18, 1983 and quashing the allotment order made in appellant's favour and directing the Addl.

District Magistrate (Civil Supplies), Lucknow to reconsider the applications made for allot- ment of the premises in dispute after giving notice to the respondent landlord.

129 The dispute relates to 1st floor of House No. 109/16 situate in Model House Colony, Aminabad, Lucknow. Mauji Ram Gupta the owner of the house was residing in the ground floor of the house while the 1st floor was let out to a tenant. Vacancy in the first floor arose, several persons including the appellant, H.C.

Ghildiyal and Ramakant Srivastava made appli- cations for allotment of the same. Mauji Ram Gupta, the landlord also made an application for the release of the premises to him under sec. 16 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The Addl. District Magistrate, respondent No. 4 by his Order dt. 25.2.76 rejected Mauji Ram Gupta's application and allotted the premises to H.C. Ghildiyal, but he did not occupy the premises; instead he informed respondent no. 4 that he did not require the premises. Thereaf- ter respondent no.4 allotted the first floor of the house to the appellant by his order dt.

July 23, 1976 and in pursuance to that order she obtained possession of the premises on 25.7.76. Mauji Ram Gupta, the landlord chal- lenged the allotment order by means of revi- sion application before the District Judge but the same was rejected. Mauji Ram Gupta entered into an agreement for the sale of the house with G.L. Pahwa, respondent no. 1 and in part performance of the agreement he permitted G.L.

Pahwa to occupy the ground floor of the house in November 1976. G.L. Pahwa made application for allotment and the respondent no. 4 allot- ted the ground floor to him on 31.12.76, this appears to have been done with a view to regularise his possession. Mauji Ram Gupta executed a registered sale deed in favour of G.L. Pahwa on 18.7.77 transferring the entire house including the premises in dispute to him, as a result of which respondent no. 1 became the owner and the landlord of the premises in dispute. R.K. Srivastava on unsuc- cessful applicant for the allotment of the premises in dispute had challenged the allot- ment order dt. 23.7.86 made in appellant's favour under sec. 18 of the Act. The District Judge by his order dt. 18.8.77 allowed his revision application set aside the allotment order made in appellant's favour and directed respondent no. 4 to reconsider the applica- tions made for allotment of the premises in accordance with law. In pursuance of the directions issued by the District Judge re- spondent no. 4 considered the applications and by his order dt. 4.1.78 he again allotted the premises to the appellant and rejected the claims of other applicants. Notice of the allotment proceedings was not given to re- spondent no. 1, although by that time he had acquired full rights of a landlord. It appears that respondent had made an application to the State Govt. for release of the first floor and that had been forwarded by the Govt. to re- spondent no. 4, which he disposed of by the same order dt. 4.1.78. Respondent no. 1 filed a 130 revision application under sec. 18 of the Act challenging the allotment order dt. 4.1.78. He filed a review application also before re- spondent no. 4 for recall of the order dt.

4.1.78. During the pendency of the review application the revision application made by respondent no. 1 was dismissed by the District Judge on 28.2.78 for want of prosecution.

However the review application of respondent no. 1 was allowed by respondent no. 4 by his order dr. 14.12.81 on the finding that since the premises in dispute was a part of land- lord's building which he was occupying, it was mandatory that notice should have been issued to the landlord and since no notice had been issued to him the allotment order was vitiat- ed. On these findings, he recalled his Order dated 4.1.78. The appellant challenged the order by means of a revision application before the District Judge under sec. 18 of the Act. The Addl. District Judge, Lucknow exer- cising powers of the District Judge allowed the revision application by his order dt.

18.1.83, and set aside the order of respondent no. 4 dt. 14.12.81, on the findings that review application was not maintainable and respondent no. 4 had no jurisdiction to review his order on the ground of absence of notice to respondent no. 1 who was transferee land- lord. Respondent no. 1 challenged the validity of the order of the Addl. District Judge dt.

18.1.83 by means of a writ petition under Art.

226 of the Constitution before the High Court.

A learned Single Judge of the High Court allowed the writ petition by his order dt.

January 20, 1984 and quashed the order of the Addl. District Judge and directed respondent no. 4 to consider the application for allot- ment for giving notice to respondent no. 1.

Aggrieved the appellant challenged the validi- ty of the order of the High Court.

Before we consider the submissions made on behalf of the appellant it is necessary to briefly notice the findings recorded by the High Court. The High Court held that since the District Judge while setting aside the initial order of allotment made in appellant's favour dt. 23.7.76 directed respondent no. 4 to consider the allotment applications in accord- ance with law. Respondent no. 4 was under a legal duty to issue notice to respondent no. 1 who had by that time acquired rights of land- lord. Since no notice was given to him the allotment proceeding was rendered illegal. The High Court further held that even though the landlord's application for release of the premises in dispute had been rejected, the transferee landlord had right to nominate a tenant of his choice in accordance with sec.

17(2) of the Act. But as no notice was issued to him, he could not exercise his right to nominate a tenant of his choice although the appellant as well as the authority considering the application, for allotment both had ac- quired 131 knowledge that respondent no. 1 was the trans- feree landlord occupying a portion of the building. The High Court held that provisions of sec. 17(2) were mandatory and its non- compliance rendered the allotment order void.

The High Court held that as the order of allotment dt. 4.1.78 was made without giving notice to the landlord, the alloting authority was competent to recall its order in exercise of its inherent jurisdiction. On these find- ings the High Court set aside the order of the Addl. District Judge and directed the alloting authority to reconsider the applications for allotment after giving notice to the landlord respondent no. 1.

Shri Tarkundc learned counsel for the appellant urged that the High Court committed error in setting aside the allotment order and directing the District Magistrate to reconsid- er the allotment applications at the instance of G.L. Pahwa, respondent no. 1. He further urged that since Mauji Ram Gupta, the erst- while landlord's application for release of the premises in dispute had been dismissed and revision against that was also dismissed for non-prosecution, the erstwhile landlord had exhausted all his rights available to him under the Act. G.L. Pahwa being the successor in interest of Mauji Ram Gupta, did not and could not acquire any further right either to get the premises in dispute released in his favour or to challenge the validity of the allotment order. G.L. Pahwa was not entitled to maintain a review application and Addition- al District Magistrate had no jurisdiction to recall his order dated 4.1.78 alloting the premises to the appellant and further he was not entitled to any notice either under sec- tion 17(2) of the Act or under Rule 9(3), as the requisite notice had already been issued to the erstwhile landlord Mauji Ram Gupta who had contested the allotment proceedings.

Having given our anxious consideration to these submissions and having regard to the facts and circumstance of the case we do not find any merit in the submissions.

When a building or a part of a building falls vacant or is likely to fail vacant, the District Magistrate under section 16(1)(a) of the Act has jurisdiction to issue allotment order requiring the landlord to let the build- ing or part thereof to the person specified in the order. The landlord may apply to the District Magistrate for release of the whole or any part of such building under section 16(1)(b) of the Act, if the release applica- tion is allowed, the landlord is permitted to occupy the building or part thereof as the case may be. But if release application is dismissed the District Magistrate is empowered to issue allotment order in favour of an applicant, and in pursuance thereof the allot- tee is entitled to take possession. Before applications for allotment are con- 132 sidered by the District Magistrate it is mandatory for him to serve notice of the vacancy on the landlord informing him the date on which the allotment is to be considered as prescribed by Rule 9 of the U.P. Urban Build- ings (Regulation of Letting, Rent and Evic- tion) Rules, 1972 (hereinafter referred to as the Rules). Rule 9(3) requires service of notice and intimation of the date fixed for considering the allotment of the premises which may have fallen vacant or is likely to fall vacant. This is mandatory as has been held by this Court in Yoginder Tiwari v.

District Judge, Gorakhpur and Ors., [1984] 2 SCC 728 and in catena of cases the High Court of Allahabad, has taken the same view, it is not necessary to burden the judgment by refer- ring to all those decisions. The object and purpose of the notice to the landlord regard- ing the date fixed for allotment proceedings is to enable him to file his objections if any, to the allotment proceedings or to make application for release of the premises as contemplated by section 16(1)(a) of the Act or to nominate a tenant of his choice if he himself is in occupation of a portion of the building. An allotment order made without giving notice to the landlord as required by Rule 9(3) would be rendered illegal. We there- fore agree with the view taken by the High Court.

At the initial stage of allotment proceed- ings for the year 1976, Mauji Ram Gupta, the erstwhile landlord had made application for release of the accommodation and the first floor of the house, but that application was rejected and thereupon the District Magistrate allotted the premises to H.C. Ghildiyal by his order dated 23.7.76 Mauji Ram Gupta's revision application against the order rejecting his release application was rejected by the Dis- trict Judge on 5.8.76. Meanwhile the District Magistrate allotted the premises to the appel- lant by his order dated 23.7.76. On the dis- missal of the revision application of Mauji Ram Gupta, his claim for release of the premises in dispute stood rejected final- ly. As noted earlier Mauji Ram Gupta sold the entire house in dispute to G.L. Pahwa on 18.7.77 and the allotment order in appellant's favour was set aside by the Additional Dis- trict Judge on 8.8.77 at the instance of R.K. Srivastava on unsuccessful applicant for the allotment of the premises in dispute. It is noteworthy that the appellant took no pro- ceedings to challenge the order of Additional District Judge dt. 8.8.77 under which the allotment order was set aside and the District Magistrate was directed to reconsider the allotment applications in accordance with law. In such a situation G.L. Pahwa who had admittedly became the landlord of the premises in dispute was entitled to exercise fights of the landlord available to him under the Act.

Section 17(2) lays down that where a part of a building is in occu- 133 pation of landlord for a residential purpose, the allotment of any other part thereof under section 16(1)(a) shall be made in favour of a person nominated by the landlord. This provision safeguards interest of the landlord to have a tenant of his choice if he is occupying a portion of the building. The legislature enacted sec. 17(2) with a view to ensure peaceful living to a landlord and for that purpose it permitted the landlord to have a tenant of his choice. The.

landlord's valuable right cannot be taken away by the Dis- trict Magistrate while exercising his powers of allotment under sec. 16(1)(a) of the Act. The scope and purpose of sec. 17(2) of the Act was considered by this Court in Babu Singh Chauhan v. Rajkumar Jain & Ors., [1982] 3 SCR 114 and the Court observed:

"A perusal of this statutory provision would clearly dis- close that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises, which arc a part of the building occupied by the landlord, and allotment in the vacancy should be made only to a person nominated by the landlord. The dominant purpose to be sub- served by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord. It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord, there is no question of the landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the grounds of personal necessity. The statute, however, while empowering the prescribed authority to allot the accommodation, safe- guards at least the right of the landlord to have a tenant of his choice." In the instant case there is no dispute that when the allotment proceedings were taken in pursuance of the Dis- trict Judge's Order dt. 8.8.77 and when the allotment was made in appellant's favour on 4.1.78 no notice of the allot- ment proceedings was issued to G.L. Pahwa, respondent no. 1, although the appellant as well as the Addl. District Magis- trate both knew that G.L. Pahwa had stepped in the shoes of landlord and that he was occupying ground floor of the building. The allotment order was made in appellant's favour on 4.1.78, but the landlord, though residing in a part of the building was denied opportunity of nominating a tenant of his choice as contemplated by sec. 17(2) of the Act. In these circumstances there can be no doubt that 134 the order of the Addl. District Magistrate alloting the premises to the appellant was completely without jurisdic- tion and against the plain terms of sec. 17(2) of the Act.

The submission of Shri Tarkunde that on dismissal of the revision application of Mauji Ram Gupta the erstwhile land- lord, all fights of the landlord stood exhausted and G.L.

Pahwa being the transferee landlord could not exercise any further fight of landlord in the matter relating to allot- ment of the premises in dispute are untenable. Mauji Ram Gupta's application for release of the premises was dis- missed and a revision application filed 'by him against the order of the Addl. District Magistrate refusing to release premises in dispute stood rejected, but if the conditions set out in sec. 16(1)(b) existed we see no reason as to why the transferee landlord could. not press his case for re- lease but we do not think it necessary to consider this question in detail or to express any opinion on this ques- tion as admittedly the transferee landlord respondent no. 1 made no application for release of the premises in dispute to the District Magistrate or to the prescribed authority and his application made to the State Government for release of the accommodation which was forwarded to the District Magistrate was rejected and the High Court has upheld that order and no challenge has been made by G.L. Pahwa to that order. Assuming that the transferee landlord's fight to get the premises in dispute released stood exhausted, G.L. Pahwa being the landlord had every fight to nominate a tenant of his choice in accordance with sec. 17(2) of the Act. Admit- tedly no notice had been issued to G.L. Pahwa affording any opportunity of nominating a tenant of his choice before the order of allotment dt. 4.1.78 was made. The landlord has fight to apply for release of the premises on the falling of a vacancy failing which he has another fight under sec.

17(2) to nominate a tenant of his choice if he is occupying a portion of the building. It is the duty of the authority considering the allotment under sec. 16(1)(a) of the Act, to afford opportunity to the landlord to nominate tenant of his choice and if the landlord nominates a person of his choice the authority is bound to allot the premises in favour of the nominee of the landlord. Mauji Ram Gupta was not given that opportunity, there was thus no question of his having exhausted his right to nominate a tenant of his choice.

Learned counsel for the appellant urged that the Addl.

District Magistrate had no power to allow the review appli- cation made by G.L. Pahwa or to recall his order dt. 4.1.78 alloting the premises in dispute to the appellant. Sec.

16(5) provides for review of an order of allotment at the instance of a landlord on an application made within 7 135 days. In the instant case the Addl. District Magistrate by his Order dt. 14.12.81 recalled his order dt. 4.1..78 allot- ing the premises in dispute to the appellant on the ground that no notice of the proceeding had been served on the landlord, respondent no. 1 and that there was enough evi- dence on record to show that the premises in dispute was a part of the landlord's accommodation, yet he was not given opportunity to nominate a tenant of his choice. The Addl.

District Magistrate therefore recalled the order on the ground that the allotment order had been issued in violation of the mandatory provision of sec. 17(2) of the Act. No exception can be taken to the correctness of the merit of the order of the Addl. District Magistrate. As discussed above we have already expressed our opinion that the allot- ment order dt. 4.1.78 issued in appellant's favour was rendered illegal for the non-compliance of the mandatory provision of sec. 17(2) of the Act. In that view even if there was any procedural defect in entertaining the review application, it would not be proper and desirable to inter- fere with the order of the Addl. District Magistrate, more so, when the High Court has already upheld that order.

In view of the above discussion we are of the opinion that the High Court's order does not suffer from any error of law and the appellant is not entitled to any relief. We accord- ingly dismiss the appeal with costs.

M.L.A. Appeal dis- missed.


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