PETITIONER:
MADHU GOPAL
Vs.
RESPONDENT:
VI ADDITIONAL DISTRICT JUDGE & ORS.
DATE OF JUDGMENT26/09/1988
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
RANGNATHAN, S.
CITATION:
1989 AIR 155 1988 SCR Supl. (3) 276
1988 SCC (4) 644 JT 1988 (4) 106
1988 SCALE (2)1273
ACT:
U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act 1972/U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972. Section
16(5)(a)/Rule 10(9)--Review of order of release/Allotment--A
landlord even though not in actual possession can ask for
review of the order.
HEADNOTE:
The petitioner in the Special Leave Petition is the
tenant, Respondent No. 3 was one of the five co-owners of
the petition premises.
On January 28, 1978, one of the co-owners who had sole
possession of the shop vacated the shop and sent intimation
of the vacancy to the Rent Controller under the U.P. Urban
Buildings (Regulation of Letting and Eviction) Act, 1972.
The petitioner filed allotment application for the said shop
and he was the sole applicant.
The Rent Control Officer directed the petitioner to
appear in the allotment proceedings, called for a report
from the Inspector, found one of the co-owners to he in
possession of the shop and that he had discontinued the
business and was going to let out the shop. The 3 other co-
owners never objected to the petitioner's tenancy on the
allotment order. The allotment letter was accordingly passed
on 12th February.1978, and possession was taken up by the
petitioner thereafter.
On or about 25th February, 1978 the 3rd respondent who
was a non-occupant owner filed an application under section
16(5) of the Act i.e. after 25 days of the allotment,
for review of the order. The Rent Controller allowed the
review application and cancelled the allotment order.
The Additional District Judge having dismissed the
revision petition, the petitioner filed a writ petition in
the High Court.
The question about the maintainability of the review
application under section 16(5) of the Act at the instance
PG NO 276
PG NO 277
of a non-occupant owner having arisen the matter was
referred to a Full Bench and by a majority, the Bench came
to the conclusion that such an application was maintainable.
Dismissing the Special Leave Petition,
HELD: 1. A landlord, even though not in actual
possession at the time of the possession of the property,
can ask for review of the order of release or allotment.
[280G]
2. A landlord has a right to the property. The section
should not be so construed as to defeat the right to
possession of property in appropriate cases unless the
intention of the Legislature is manifest. [280F]
3. Section 16(5)(a) speaks of 'where the landlord or any
other person'. Hence, two categories of persons are
contemplated i.e. a land-lord, or any other person. [280C]
4. The requirement of the sub-section, to be in lawful
occupation of the building or any part thereof, applies only
in case of any other person claiming to be in lawful
occupation and not in case of landlord. The Section has used
the expression "or" and so the expression "or" is
disjunctive of these two categories to be treated
separately. Hence, the requirement to be in lawful
occupation, is not there is case of an application by the
landlord. [280C-D]
5. The proviso puts an embargo of 7 days in making the
application for review. It can only apply to those who were
in lawful occupation at the time of the making of the
original Order. It cannot curtail the rights of the
landlord. as such, it only affects any other person who was
in lawful occupation. [280E-G]
Niren Kumar Das v. 7he District Judge, Pilibhit & Ors.
AIR 1977 Allahabad 47, approved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 6577 of 1988.
From the Judgment and order dated 27.4.1988 of the High
Court of Allahabad in C.M.W. No. 3777 of 1987.
G.L. Sanghi and Manoj Prasad for the Petitioner.
PG NO 278
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This application for leave to
appeal under Article 136 of the Constitution arises from the
judgment and order of the High Court of Allahabad, dated
27th April, 1988 by the judgment under challenge the
Division Bench by majority directed the Addl. City
Magistrate or the Officer at present exercising the power of
Distt. Magistrate under Rule 10(9) of the U.P. Urban
Buildings (Regulation of Letting, Rent & Eviction) Rules
1972 to issue notice on all the five landlords mentioned in
the petition within one week of the filing of the certified
copy of the Order, and thereafter to make an Order in
accordance with law and in the light of the observations
made in the said Judgment. The petitioner before the High
Court, who is the petitioner herein also, was directed not
to be dispossessed until disposal of the matter by the High
Court.
This application is by the tenant-petitioner. The
premises in question had five co-owners, namely, Veeresh
Saxena, R.C. Saxena. D.C. Saxena, Smt. Shanti Saxena and
B.S. Saxena, respondent No. 3. Until January, 1978, Veeresh
Saxena was in sole and exclusive actual physical possession
of the shop and carried on business in it. In January, 1978
the present petitioner filed allotment application for the
shop and he was the sole applicant. On 28.1.1978, Veeresh
Saxena vacated the shop and sent intimation of vacancy to
the Rent Control Officer under the U.P. Urban Buildings
(Regulation of Letting & Eviction) Act, 1972 (hereinafter
called the Act). The Rent Control Officer, then, directed
him to appear in the allotment proceedings The Inspector
reported that Veeresh Saxena was found to be in possession
of the shop, discontinuing the business and was going to let
out the shop. On the Inspector’s report being pasted on the
Notice Board of the Rent Controller Office, neither B.S.
Saxena nor the other 3 co-owners filed any objection.
Veeresh Saxena filed an affidavit before the Rent Control
Officer that he wanted to let out the shop to the
petitioner. The 3 other co-owners never objected to the
petitioner`s tenancy on the allotment order throughout the
last 10 years. The allotment letter was accordingly passed
on 12th February, 1978. The possession was, thereafter,
taken up, it was alleged by the petitioner in the special
leave petition. The petitioner had alleged that he had
invested more than Rs.2 lakhs in the shop, but B.S. Saxena.
who was a non-occupant owner, on or about 25th February,
1978 filed an application under section 16(5) of the Act,
after 25 days of allotment, for review of the Order. It was
alleged by the petitioner that the evidence was
overwhelmingly in support of the fact that he had taken
PG NO 279
possession of the premises on or about 4/5th February, 1978.
The Rent Controller, however, on the said application of
B.S. Saxena allowed the review application and cancelled the
allotment order. revision against the said order was filed
before the learned Judge under section 18 of the Act. The
learned Addl. Distt. Judge dismissed the revision. The
petitioner, thereafter, filed a writ petition in the High
Court of Allahabad .
The question arose about the maintainability of the
review application under section 16(5) of the Act. It is
upon this point that the matter has been agitated before us.
There was a difference of opinion about the maintainability
of the review application at the instance of a non-occupant
owner and the matter was referred to a Bench of 3 learned
Judges and by majority the Division Bench came to the
conclusion that such an application was maintainable. The
petitioner herein contends that the High Court was wrong in
the view it took on the construction of Section 16(5)(b) of
the Act.
The relevant provisions of the said sub-section read as
follow:
“(5)(a) Where the landlord or any other person claiming
to be lawful occupant of the building or any part thereof
comprised in the allotment or release order satisfies the
District Magistrate that such order was not made in
accordance with clause (a) or clause (b) as the case may be
of sub-section (I), the District Magistrate may review the
order:
Provided 1hat no application under this clause shall be
entertained later than seven days after the eviction of such
person .
(b) Where the District Magistrate on review under this
sub-section sets aside or modifies his order of allotment or
release, he shall put or cause to be put the applicant, if
already evicted, back into possession of the building, and
may for that purpose use or cause to be used such force as
may be necessary.
(6) x x x
(7) Every order under this section shall subJect to any
order made under sec. 18 be final.”
PG NO 280
The contention is that a landlord who was not in actual
physical possession until making of the allotment order or
is evicted in pursuant thereof, is not competent to make an
application for review of the allotment order or release
order under section 16(5)(a) & (b) of the Act. Admittedly,
as mentioned hereinbefore, the respondent applicant was not
in occupation when the Order was made. He was, however,
indisputably a landlord. So, the question is whether on the
construction of the section, a landlord who Is not in actual
physical possession at the time of the release order, is
entitled under the law to apply for review of the order. The
High Court held that he is entitled.
We are of the opinion that the High Court was right.
Section 16(5)(a) speaks of ‘where the landlord or any other
person’. Hence,there are two categories of persons
contemplated i.e. a landlord, or any other person. The
requirement of sub-section, to be in lawful occupation of
the building or any part thereof, applies Only in case of
Lany other person claiming to be in lawful occupation and not
in case of landlord. The Section has used the expression ‘
or” and so the expression or is disjunctive of these two
categories to be treated separately. Hence, the requirement
to be in lawful occupation. is not there in case of an
application by the landlord.
Mr. G.L. Sanghi, learned counsel appearing for the
tenant, has sought to argue that by virtue of the proviso a
landlord who was not in occupation, was not entitled to
apply. We are unable to accept this. The proviso puts an
embargo of 7 days in making the application for review. It
can only apply to those who were in lawful occuaption at the
time of the making of the original Order. It cannot curtail
the rights of the landlord, as such, it only affects any
other person who was lawful occupation. In any event, it is
a well-settled principle of construction that unless clearly
indicated, a proviso would not away substantive rights given
by the Section or the sub-section. A land lord has a right
to the property. The Section should not be construed as to
defeat the right to possession of property in appropriate
cases unless the intention of the Legislature is manifest We
find no such clear intention in the facts of this case.
We are, therefore,. of the opinion that the High Court
came to the correct conclusion that a landlord, even though
not in actual physical possession at the time of the
possession of the property. call ask for review of the order
of release or allotment. It must be borne in mind that this
view was also expressed by Mr. Justice N.D.Ojha, as our
learned brother then was, in his judgment in Niren Kumar Das
v. The District Judge, Pilibhit & Ors., AIR 1977 Allahabad
PG NO 281
47. We agree with that interpretation.
In that view of the matter, there is no substance in the
contentions urged in the specil leave petition. The
application is, therefore,rejected.
N.V.K. Petition dismissed.