{"id":71038,"date":"1986-04-29T00:00:00","date_gmt":"1986-04-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nanakram-etc-vs-kundalrai-etc-on-29-april-1986"},"modified":"2015-10-06T11:24:03","modified_gmt":"2015-10-06T05:54:03","slug":"nanakram-etc-vs-kundalrai-etc-on-29-april-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nanakram-etc-vs-kundalrai-etc-on-29-april-1986","title":{"rendered":"Nanakram Etc vs Kundalrai Etc on 29 April, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nanakram Etc vs Kundalrai Etc on 29 April, 1986<\/div>\n
Equivalent citations: 1986 AIR 1194, \t\t 1986 SCR (2) 839<\/div>\n
Author: R Pathak<\/div>\n
Bench: Pathak, R.S.<\/div>\n
           PETITIONER:\nNANAKRAM ETC.\n\n\tVs.\n\nRESPONDENT:\nKUNDALRAI ETC.\n\nDATE OF JUDGMENT29\/04\/1986\n\nBENCH:\nPATHAK, R.S.\nBENCH:\nPATHAK, R.S.\nERADI, V. BALAKRISHNA (J)\nMISRA, R.B. (J)\n\nCITATION<\/a>:\n 1986 AIR 1194\t\t  1986 SCR  (2) 839\n 1986 SCC  (3)\t83\t  1986 SCALE  (1)916\n\n\nACT:\n     Landlord and  tenant  -  Central  Provinces  and  Berar\nLetting of  Houses and\tRent Control Order 1949, clauses 22,\n23, 24,\t 28 and 30 read with section 23 of the Contract Act,\n1872 Whether  a lease  concluded between  a landlord  and  a\ntenant in  contravention of  clause 22\tof the\tRent Control\nOrder can  be assailed by the landlord as a void transaction\nin a  proceeding between  the parties to the lease - Whether\nthe Notification  under clause 30 retrospective - Concurrent\nfindings of the Courts below cannot be interfered with under\nArticle 136 of the Constitution.\n\n\n\nHEADNOTE:\n     Under clause  22(1) of  the Central Provinces and Berar\nLetting\t of  Houses  and  Rent\tControl\t Order,\t 1949  every\nlandlord of  a house  situated in  an area  to\twhich  those\nprovisions  extend  is\trequired  by  the  statute  to\tgive\nintimation of  a vacancy  to the Deputy Commissioner. Clause\n22(1) declares that the landlord shall not let or occupy the\nhouse except  in accordance  with claw\te 23.  Clause  22(2)\nprovides that no person shall occupy a house except under an\norder under  clause 23(1)  or clause  24 or  on an assurance\nfrom the  landlord that\t the house  is being permitted to be\noccupied in accordance with clause 23(2). Clause 23 provides\nthat the  Deputy Commissioner  may, within fifteen days from\nthe date  of receipt  of the  intimation of a vacancy, order\nthe landlord  to let  the vacant house to any person holding\nan office  of profit  under the Union or State Government or\nto a displaced person or to an evicted person and thereupon,\nnotwithstanding any  agreement to the contrary, the landlord\nis obliged  to let the house to such person and place him in\npossession thereof. If the landlord states that he needs the\nhouse for  his own  occupation he  must satisfy\t the  Deputy\nCommissioner in\t that behalf.  The claw\t e provides  further\nthat if\t no order  is passed  and served  upon the  landlord\nwithin the  period mentioned  in clause 23(1), it is open to\nthe landlord to let the vacant house to any person.\n840\nClause 28  empowers the Deputy Commissioner to take or cause\nto be  taken such  steps and  use or  cause to\tbe used such\nforce, as  may be  reasonably necessary\t for the  purpose of\nsecuring compliance  with, or  for preventing  or rectifying\nany contravention  of, the  Rent Control  Order.  Clause  30\nempowers the  State Government to exempt, by Notification in\nthe official  Gazette, any  house or  class of houses or any\nperson or class of persons from all or any of the provisions\nof  the\t  Rent\tControl\t  Order.  On   October\t24,  1968  a\nNotification was  issued under\tclause 30 exempting from all\nthe provisions\tof Chapter III of the Rent Control Order any\nhouse  used   for  a   nonresidential  purpose,\t if  it\t was\nconstructed before January 1, 1967.\n     In\t both\tthe  Civil   appeals  the   landlords  moved\napplications before  the Deputy\t Commissioner  concerned  to\ndeclare the  tenancy lease  entered into  by them with their\nrespective tenants  as void  in as much they were created in\nviolation of  clauses 22  and 23  of Chapter III of the Rent\nControl Order.\tThe appellant-tenants  who have\t lost  their\ndefence pleas have come up in appeals by special leave.\n     Allowing the appeals, the Court,\n^\n     HELD: 1.  Nowhere does  the Central Provinces and Berar\nLetting of Houses and Rent Control Order, 1949 which is pari\nmateria\t with\tthe  U.P.   Act\t mandate   that\t the  Deputy\nCommissioner must  eject  a  person  who  has  entered\tinto\npossession of  a house\tin violation of clause 22. If upon a\nview  of  the  circumstances  prevailing  then,\t the  Deputy\nCommissioner takes  no action  in the  matter, there  is  no\nreason why  the lease  between the  landlord and the tenant,\nalthough inconsistent  with clause 22, should not be binding\nas  between   the  parties   thereto.  It   is\tnot  a\tvoid\ntransaction. There  is nothing\tin the\tRent  Control  Order\ndeclaring it  to be so. Now if the lease is not void then it\nis not open to either party to avoid the lease on the ground\nthat it is inconsistent with clause 22. The parties would be\nbound, as  between them,  to observe  the conditions  of the\nlease, and  it cannot  be assailed  by\teither\tparty  in  a\nproceeding between them. [849 G-E]\n     Murlidhar Agarwal\tand Anr.  v. State  of U.P.  & Ors.,\n[1975] 1 S.C.R. 575 followed.\n841\n     Udhoo Dass\t v. Prem  Prakash and  Anr.,  A.I.R.  [1964]\nAllahabad 1 approved.\n     Waman Shrinivas  Kini  v.\tRatilal\t Bhagwandas  &\tCo.,<\/a>\n[1959] Supp. 2 S.C.R. 217 distinguished.\n     2.\t Ex   facie  the   terms  of  the  Notification\t are\nprospective only.  There is  nothing to\t suggest  that\tthey\noperate retrospectively\t also. It is true that they refer to\nhouses constructed  before January  1, 1967,  but that is by\nway of\tdescription only, in order to define the category of\nhouses covered\tby the\toperation of the exemption conferred\nby the Notification. Words used merely to define the subject\nmatter of  the exemption  should not  be confused  with\t the\ndimension of  time  during  which  the\texemption  operates.\nTherefore,  the\t Notification  cannot  be  construed  to  be\nretrospective  in  operation  and,  therefore,\tthe  tenancy\ncreated in  favour of  the tenant  in CA  5317 of  1983 with\neffect from  October 1,\t 1968 is exempted from the operation\nof clause 22 of the Rent Control Order. [850 A-C; 849 G]\n     3. A concurrent finding of fact that a vacancy arose in\nNovember 1961 in Civil Appeal 1200 of 1979 and a tenancy was\ncreated\t by   the  respondent  landlord\t in  favour  of\t the\nappellant-tenant cannot\t be interfered\twith, under  Article\n136 of the Constitution, by the Supreme Court. [850 D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5317 of
\n1983.\n<\/p>\n
     From the  Judgment and  Order dated  22.11.1982 of\t the
\nBombay High Court in Writ Petition No. 1043 of 1982.\n<\/p>\n
\t\t\t    WITH
\n     Civil Appeal No. 1200(N) of 1979.\n<\/p>\n
     From the  Judgment and  Order dated  1\/2.3.1979 of\t the
\nBombay High Court in Writ Petition No. 1043 of 1982.\n<\/p>\n
     V.A. Bobde,  Ms. A.  Chauhan and  A.K. Sanghi  for\t the
\nAppellants in C.A. No. 5317 of 1983.\n<\/p>\n
842<\/span><\/p>\n
     M.N.  Phadke,   J.D.  Jain\t and  V.N.  Phadke  for\t the
\nRespondent in C.A. No. 5317 of 1983.\n<\/p>\n
     P.H.  Parekh   and\t Ms.  Lata  Krishnamoorthy  for\t the
\nAppellant in C.A. No 1200 of 1979.\n<\/p>\n
     M.N. Phadke,  N.M. Ghatate\t and S.V.  Deshpande for the
\nRespondent in C.A. No. 1200 of 1979.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     PATHAK J. These are two civil appeals by special leave.
\nThe question  common to\t these appeals\tis whether  a  lease
\nconcluded between  a landlord  and a tenant in contravention
\nof clause  22 of  the Central Provinces and Berar Letting of
\nHouses and Rent Control Order, 1949 (hereinafter referred to
\nas ‘the Rent Control Order’) can be assailed by the landlord
\nas a void transaction in a proceeding between the parties to
\nthe lease?\n<\/p>\n
     Civil Appeal  No. 5317 of 1983 is concerned with a shop
\ndescribed as  Block No.\t 5  in\ta  non-residential  building
\nsituated  in  Dharampeth,  Nagpur.  The\t respondent  is\t the
\nlandlord and  the appellant  is the tenant. The building was
\nconstructed before January 1, 1967, and the appellant became
\na tenant from October 1, 1968.\n<\/p>\n
     Clause 13\tof the\tRent Control  Order provides that no
\nlandlord can  determine a  lease except\t with  the  previous
\nwritten permission  of the  Controller, for  which  he\tmust
\napply  in   writing  to\t the  Controller.  Clause  13(3)(vi)
\nprovides that if after hearing the parties the Controller is
\nsatisfied that\tthe landlord  needs the premises for himself
\nthe  Controller\t  must\tgrant  the  landlord  permission  to
\ndetermine the  lease. On  January 19,  1980  the  respondent
\npetitioned the\tController for permission on the ground that
\nhe required  the premises  occupied by\tthe appellant as his
\nson wanted to commence business therein.\n<\/p>\n
     It may  be pointed\t out at this stage that clause 22 in
\nChapter III of the Rent Control Order requires :\n<\/p>\n
\t  “22(1) Every\tlandlord of  a house  situate in  an
\n\t  area to which this Chapter extends, shall –\n<\/p><\/blockquote>\n
843<\/span><\/p>\n
\t  (a)  within  seven  days  from  the  date  of\t the
\n\t  extension of\tthis chapter, if the house is vacant
\n\t  on such date; or\n<\/p><\/blockquote>\n
\t  (b) within  seven days  from the date on which the
\n\t  landlord becomes finally aware that the house will
\n\t  become  vacant  or  available\t for  occupation  by
\n\t  himself or  for other\t occupation on\tor  about  a
\n\t  specified date;\n<\/p><\/blockquote>\n
\t  give\tintimation   of\t this  fact  to\t the  Deputy
\n\t  Commissioner of  the district in which the area is
\n\t  included or such other officer as may be specified
\n\t  by him, in the Form given in the Schedule appended
\n\t  to this  Order, and  shall not  let or  occupy the
\n\t  house except in accordance with clause 23.
\n\t  (2) No person shall occupy any house in respect of
\n\t  which this  chapter applies  except under an order
\n\t  under sub-clause  (1) of clause 23 or clause 24 or
\n\t  on an\t assurance from\t the landlord that the house
\n\t  is being  permitted to  be occupied  in accordance
\n\t  with sub-clause (2) of clause 23.”\n<\/p><\/blockquote>\n
Clause 23 provides :\n<\/p>\n
\t  “23.\t(1)   On  receipt   of\tthe   intimation  in
\n\t  accordance with clause 22, the Deputy Commissioner
\n\t  may, within  fifteen days from the date of receipt
\n\t  of the  said intimation, order the landlord to let
\n\t  the vacant  house to\tany person holding an office
\n\t  of profit  under the\tUnion or State Government or
\n\t  to a\tdisplaced person or to an evicted person and
\n\t  thereupon notwithstanding  any  agreement  to\t the
\n\t  contrary, the landlord shall let the house to such
\n\t  person  and\tplace  him   in\t possession  thereof
\n\t  immediately, if  it is  vacant or  as soon  as  it
\n\t  becomes vacant :\n<\/p><\/blockquote>\n
\t  Provided  that,   if\tthe  landlord  has,  in\t the
\n\t  intimation given  under clause  22, stated that he
\n\t  needs the  house of his own occupation, the Deputy
\n\t  Commissioner shall  if satisfied after due enquiry
\n\t  that the  house is  so needed, permit the landlord
\n\t  to occupy the same.\n<\/p><\/blockquote>\n
844<\/span><\/p>\n
\t  (2) If  no order  is passed  and served  upon\t the
\n\t  landlord within the period specified in sub-clause
\n\t  (1), he  shall be  free to let the vacant house to
\n\t  any person.”\n<\/p><\/blockquote>\n
Clause 30  of the  Rent Control\t Order\tempowers  the  State
\nGovernment  to\texempt,\t by  Notification  in  the  Official
\nGazette, any house or class of houses or any person or class
\nof persons  from all  or any  of the  provisions of the Rent
\nControl Order. On October 24, 1968 a Notification was issued
\nunder the  said clause\t30 exempting from all the provisions
\nof Chapter  III of the Rent Control Order any house used for
\na non-residential  purpose  if\tit  was\t constructed  before
\nJanuary 1, 1967.\n<\/p>\n
     On September  23,\t1980  the  respondent  submitted  in
\nwriting\t that\tthe  building  comprising  the\tpremises  in
\nquestion had  been constructed for a non-residential purpose
\nprior to  January 1, 1967 and the appellant had entered into
\nits tenancy  from October  1, 1968,  and, therefore  as\t the
\ntenancy had  been created in violation of Chapter III of the
\nRent Control  Order it\twas void  and  there  was  no  valid
\nrelationship of landlord and tenant. The appellant filed his
\nreply stating  that Chapter  III did  not apply to buildings
\nconstructed before  January 1,\t1967 and, therefore, even if
\nno intimation  had been given as required by Chapter III the
\ntenancy\t did  not  become  void.  On  October  6,  1980\t the
\nController found  that the  premises  had  been\t constructed
\nprior to  January 1,  1967 and\tthe appellant  had become  a
\ntenant therein for a non-residential purpose from October 1,
\n1968 and  that the  premises were exempt from the provisions
\nof Chapter  III. He  held that the respondent’s petition for
\nthe grant  of permission  was maintainable.  As regards\t the
\nrespondent’s submission\t that the  tenancy was\tvoid he held
\nthat the  plea was  premature and  could  not  be  sustained
\nwithout evidence being adduced on the record. Accordingly he
\ndirected the parties to lead evidence.\n<\/p>\n
     Against the  order of  the\t Controller  the  respondent
\nappealed, and  the Appellate Authority allowed the appeal on
\nFebruary 17, 1981 holding that the Notification of exemption
\noperated from  October 24, 1968 and the tenancy in favour of
\nthe appellant  had become void. He observed that at the time
\nwhen the  tenancy was  created the provisions of Chapter III
\nwere in operation and there was no exemption from such
\n845<\/span>
\noperation. The\tappellant filed a review petition contending
\nthat the appeal filed by the respondent was not maintainable
\nand could  not be entertained by the Appellate Authority. He
\nalso questioned\t the findings  on the merits rendered by the
\nAppellate Authority  in the  appeal. The review petition was
\nrejected on March 2, 1982.\n<\/p>\n
     The appellant  then filed a writ petition in the Bombay
\nHigh Court  which was  dismissed by  its judgment  and order
\ndated November 22, 1982. The High Court held that the appeal
\nfiled by  the respondent was maintainable under clause 21(1)
\nof the\tRent Control  Order, that  the exemption provided by
\nthe Notification  of October 24, 1968 operated prospectively
\nonly, that  therefore  clause  22  in  Chapter\tIII  was  in
\noperation at the time when the tenancy was entered into, and
\nconsequently  the   Appellate  Authority  was  justified  in
\nholding that  as no  intimation was given as contemplated by
\nclause 22 the tenancy was invalid.\n<\/p>\n
     In Civil  Appeal No. 1200 of 1979 the respondent is the
\nowner of  a shop situated at Akola. He instituted a suit for
\npossession of  the shop\t alleging that it was first taken on
\nlease by one Shamji Bhai in 1958 and during the next year it
\npassed into  the joint\tpossession of  Shamji Bhai  and\t the
\nappellant Kaku\tBhai as\t tenants. Some\ttime after  November
\n1961 the  appellant Kaku Bhai alone continued in possession.
\nThe respondent\tcontended that the lease in favour of Shamji
\nBhai in\t 1958 and  thereafter to  Kaku\tBhai  in  1961\twere
\ninvalid and  inoperative inasmuch  as they  were entered  in
\nviolation of  clause 22\t of the\t Central Provinces and Berar
\nLetting of  Houses and\tRent Control  Order, 1949 (‘the Rent
\nControl\t Order’),  as  no  intimation  was  given  that\t the
\npremises had  fallen vacant  in 1958  when let out to Shamji
\nBhai nor  in 1961  when let  out to the appellant Kaku Bhai.
\nAlleging that  the appellant Kaku Bhai was in possession not
\nas a  tenant but  as a\tmere licencee  or a  trespasser\t the
\nrespondent  claimed   possession   and\t mesne\t profits.The
\nappellant resisted  the suit  and inter alia pleaded that he
\nwas a  tenant of  the premises, and that having accepted him
\nas tenant it was not open to the respondent to take the plea
\nthat the lease was void. The Trial Court held that the lease
\nin favour of Shamji Bhai and also the lease in favour of the
\nappellant were\tvoid because  intimation of  the vacancy had
\nnot been communicated to the statutory authority at the
\n846<\/span>
\nrelevant time  and, therefore, the appellant must be treated
\nas being  in permissive\t possession as\ta licencee. The suit
\nwas decreed.  On appeal\t the Bombay High Court held that the
\nlease in  favour of  Shamji Bhai and thereafter the lease in
\nfavour of the appellant were hit by clause 22(2) of the Rent
\nControl Order  and were,  therefore, void.  The\t appeal\t was
\ndismissed.\n<\/p>\n
     The point\tcommon to  both the appeals is whether it is
\nopen to\t a  landlord  in  a  proceeding\t for  permission  to
\nterminate the  tenancy and for possession of the premises to
\nurge that  the lease between the parties is void inasmuch as
\nit was\tentered in  contravention of  clause 22\t of the Rent
\nControl Order.\n<\/p>\n
     It is  contended for the appellants in both the appeals
\nthat it\t is not\t open to  the landlord\tto take\t such a plea
\nbecause although  the  lease  may  not\tbe  binding  on\t the
\nController or  the Deputy  Commissioner it  is operative  as
\nbetween the  parties and cannot be questioned by either in a
\nproceeding instituted  by the  one against  the\t other.\t The
\nappellants rely\t on Murlidhar  Agarwal and  Anr. v. State of
\nU.P. and  Ors., [1975] 1 S.C.R. 575. That was a case arising
\nunder the U.P. (Temporary) Control of Rent and Eviction Act,
\n1947 (herein  after referred to as ‘the U.P. Rent Act’). The
\nCourt was  concerned with  the question whether a suit filed
\nby the\tappellants for\trecovery of possession, on the basis
\nthat the  tenancy created  by the predecessor-in-interest of
\nthe appellants\tin favour of the respondent had expired, was
\nmaintainable in\t law inasmuch  as it  was instituted without
\nobtaining the  permission of  the District  Magistrate under
\ns.3(1) of  the U.P.  Rent Act.\tThe Trial  Court decreed the
\nsuit, but  on appeal  the High\tCourt  reversed\t the  decree
\nholding that  the suit\twas  not  maintainable\tin  view  of
\nsection 3,  and in the circumstances, it dismissed the suit.
\nOn appeal  to this Court, the Court repelled the plea raised
\nby the\tappellants-landlords that  the respondent  was not a
\ntenant and held that, therefore, permission was necessary in
\norder to  maintain the\tsuit. In taking that view this Court
\nreferred to Udhoo Dass v. Prem Prakash and Anr., A.I.R. 1964
\nAllahabad 1,  where a Full Bench of the Allahabad High Court
\nhad laid  down\tthat  a\t lease\tmade  in  violation  of\t the
\nprovisions of  s.7(2) of  the U.P.  Rent Act  would be valid
\nbetween the  parties and  would\t create\t a  relationship  of
\nlandlord and tenant between them although it
\n847<\/span>
\nmight not  bind the Rent Control Officer. This Court did not
\ndoubt the  correctness of  the principle  propounded in that
\ncase and  held that the respondent before them was a tenant.
\nLearned counsel\t for the respondent invited our attention to
\nWaman Shriniwas\t Kini v.  Ratilal Bhagwandas  & Co.,<\/a>  [1959]
\nSupp. 2\t S.C.R. 217.  That was a case under the Bombay Hotel
\nand Lodging  Houses Rates  Control Act,\t 1947. The appellant
\nwas a  tenant of  a shop.  He let it out to sub-tenants. The
\nrespondent-landlord brought a suit for ejectment against the
\nappellant on  the ground  that s. 15 of the Bombay Hotel and
\nLodging Houses\tRates  Control\tAct,  1947  prohibited\tsub-
\nletting and  that as  a landlord he had a right to evict the
\ntenant on  that ground.\t When the  matter came\tin appeal to
\nthis Court,  the Court\theld  that  even  though  the  lease
\nbetween the  parties recognised\t subletting, as the suit was
\nbrought not  for the  enforcement of  the agreement  but  to
\nenforce the  right of  eviction\t flowing  directly  from  an
\ninfraction of  s.15 of\tthe Act, the respondent was entitled
\nto sue for ejectment.\n<\/p>\n
     The provisions  of clause\t22 and\tclause 23 of Chapter
\nIII of\tthe Rent  Control Order have been extracted earlier.
\nIt is  apparent that  under clause 22(1) every landlord of a
\nhouse situated\tin an  area to which those provisions extend
\nis required  by the  statute to give intimation of a vacancy
\nto the\tDeputy Commissioner.  Clause 22(1)  further declares
\nthat the  landlord shall  not let or occupy the house except
\nin accordance  with clause 23. Clause 22(2) provides that no
\nperson shall  occupy a\thouse except  under an\torder  under
\nclause 23(1)  or clause\t 24 or\ton  an\tassurance  from\t the
\nlandlord that the house is being permitted to be occupied in
\naccordance with\t clause 23(2).\tClause 23  provides that the
\nDeputy Commissioner  may, within  fifteen days from the date
\nof receipt  of\tthe  intimation\t of  a\tvacancy,  order\t the
\nlandlord to  let the  vacant house  to any person holding an
\noffice of profit under the Union or State Government or to a
\ndisplaced person  or to\t an evicted  person  and  thereupon,
\nnotiwithstanding any agreement to the contrary, the landlord
\nis obliged  to let the house to such person and place him in
\npossession thereof. If the landlord states that he needs the
\nhouse for  his own  occupation he  must satisfy\t the  Deputy
\nCommissioner in\t that behalf.  The clause  provides  further
\nthat if\t no order  is passed  and served  upon the  landlord
\nwithin the  period mentioned  in clause 23(1), it is open to
\nthe landlord to let the vacant house to any
\n848<\/span>
\nperson. Clause\t28 empowers  the Deputy Commissioner to take
\nor cause  to be taken such steps and use or cause to be used
\nsuch force,  as may  be reasonably necessary for the purpose
\nof securing compliance with, or for preventing or rectifying
\nany contravention of, the Rent Control Order.\n<\/p>\n
     Now, in  deciding Murlidhar Agarwal, (supra) this Court
\napproved of  the proposition  of the  law laid\tdown by\t the
\nAllahabad High\tCourt in Udhoo Dass, (supra). The High Court
\nhad the\t provisions of\ts. 7  and s. 7A of the U.P. Rent Act
\nbefore it.  Section 7 required the landlord to report to the
\nDistrict Magistrate  if his  house had\tfallen vacant or was
\nabout to  fall vacant, and thereupon the District Magistrate
\nwas empowered  to direct the landlord to let the premises to
\na person  specified in\tthe order. The High Court dealt with
\nthe question  whether  a  lease\t between  the  landlord\t and
\nanother person\tin violation  of the  order of\tthe District
\nMagistrate would  be a\tvalid lease  as between\t the parties
\nthereto. It  held that\tsuch a\tlease would be valid between
\nthe parties.  It would\tnot,  however,\tbe  binding  on\t the
\nDistrict Magistrate.  That it  would not  be binding  on the
\nDistrict Magistrate  was evidenced  by the  power  conferred
\nupon him  under s.  7A(1) of  the  U.P.\t Rent  Act  to\ttake
\nproceedings for\t the eviction  of such tenant. Section 7A(1)
\nprovided that  if the  vacancy of  an accommodation  was not
\nreported  or   a  person   occupied  an\t  accommodation\t  in
\ncontravention of  an order issued under s. 7(2) the District
\nMagistrate could require him to show cause why he should not
\nbe evicted  from it. If he failed to show cause the District
\nMagistrate could  direct him to vacate the accommodation and
\nif he  failed to  vacate the  District Magistrate  could use
\nforce to  evict him.  The power\t conferred on  the  District
\nMagistrate to  take proceedings\t for the  eviction  of\tsuch
\ntenant was  discretionary.  It\twas  open  to  the  District
\nMagistrate not\tto exercise  the power\tif there  was  undue
\ndelay or if for other good reason he found it inexpedient to
\ndo so.\tIf he  did not\texercise the  power conferred  by s.
\n7A(1), the  lease between  the landlord and the other person
\nwould continue\tto  subsist  and  that\tother  person  would
\ncontinue to  enjoy the\tstatus of  a tenant.  It would\tbe a
\nvalid lease.  It could not be regarded as a void lease. In a
\ncase under  the Rent Control Order, with which these appeals
\nare  concerned,\t  the  position\t appears  to  be  materially
\nsimilar. The  landlord is  prohibited by  clause 22(1)\tfrom
\noccupying the house or granting a lease except in
\n849<\/span>
\naccordance with\t clause 23.  There is  a  prohibition  under
\nclause 22(2)  on any  other person  seeking  to\t occupy\t the
\nhouse, except  again in accordance with clause 23. In clause
\n23 it is the Deputy Commissioner who will order the landlord
\nto let\tthe vacant  house to  a person\tindicated by  him, a
\nperson who  falls in  one of the categories specified in the
\nclause or,  if he  is satisfied,  he may permit the landlord
\nhimself to  occupy the\thouse. As was the position under the
\nU.P. Rent  Act, so  also under\tthe Rent  Control Order, the
\nDeputy Commissioner  has power under clause 28 to take steps
\nand use\t force for  the purpose of securing compliance with,
\nor for\tpreventing or  rectifying, any\tcontravention of the
\nRent Control Order. Clause 28 speaks of a power conferred on
\nthe Deputy  Commissioner in  that behalf.  Nowhere does\t the
\nRent Control Order mandate that the Deputy Commissioner must
\neject a person who has entered into possession of a house in
\nviolation of  clause 22. If upon a view of the circumstances
\nprevailing then\t the Deputy  Commissioner takes no action in
\nthe matter,  there is  no reason  why the  lease between the
\nlandlord and  the tenant,  although inconsistent with clause
\n22, should not be binding as between the parties thereto. It
\nis not\ta void\ttransaction. There  is nothing\tin the\tRent
\nControl Order declaring it to be so. Now if the lease is not
\nvoid then  it is not open to either party to avoid the lease
\non the\tground that  it is  inconsistent with clause 22. The
\nparties would  be bound,  as between  them, to\tobserve\t the
\nconditions of the lease, and it cannot be assailed by either
\nparty in a proceeding between them.\n<\/p>\n
     On this view alone both the appeals must be allowed.
\n     In Civil  Appeal No.  5317 of 1983 an alternative point
\nhas been raised on behalf of the appellant. It is urged that
\nalthough the  Notification dated  october 24,  1961  exempts
\nfrom the provisions of Chapter III of the Rent Control Order
\na  house  used\tfor  a\tnon-residential\t purpose  if  it  is
\nconstructed before  January 1, 1967 the Notification must be
\nconstrued  to  be  retrospective  in  operation,  and  that,
\ntherefore, the\ttenancy created\t in favour  of the appellant
\nwith effect  from October  1,  1968  is\t exempted  from\t the
\noperation of  clause 22\t of the Rent Control Order. In other
\nwords, because\tof the\texemption the  tenancy could  not be
\nregarded as  violating the  provisions of  clause 22  and no
\nquestion could\tarise of  the tenancy  being  void  on\tthat
\naccount. It is not possible to
\n850<\/span>
\naccept\tthe   contention.  Ex\tfacie  the   terms  of\t the
\nNotification are  prospective  only.  There  is\t nothing  to
\nsuggest that  they operate  retrospectively also. It is true
\nthat they  refer to  houses constructed\t before\t January  1,
\n1967, but  that is  by way  of description only, in order to
\ndefine the  category of\t houses covered\t by the operation of
\nthe exemption  conferred by  the  Notification.\t Words\tused
\nmerely to  define the subject matter of the exemption should
\nnot be\tconfused with the dimension of time during which the
\nexemption operates. This point must fail.\n<\/p>\n
     In Civil  Appeal No.  1200 of 1979 another point raised
\non behalf  of the  appellant  is  that\tno  vacancy  of\t the
\npremises took  place in\t 1961  when  the  appellant  was  in
\npossession as  a tenant.  The case is that the appellant was
\nin joint  possession with  Shamji Bhai\tbefore that, and the
\ntenancy continued  on Shamji  Bhai surrendering\t his tenancy
\nrights in  November 1961. The Trial Court and the High Court
\nhave concurrently  held as  a finding of fact that a vacancy
\narose in  November 1961\t and a\ttenancy was  created by\t the
\nrespondent in  favour of  the appellant on that occasion. We
\ndo not propose to interfere with the finding.\n<\/p>\n
     In the  result, on\t the view  taken by  us on the first
\npoint in  each of  the two appeals, the appeals are allowed.
\nIn Civil Appeal No. 5317 of 1983, we set aside the appellate
\norder dated  February 17,  1981 of  the Appellate  Authority
\nunder the  Rent Control\t Order and the judgment and order of
\nthe Bombay  High Court\tin the\twrit petition  filed by\t the
\nappellant insofar  as they  proceed on\tthe finding that the
\nlease is void. In Civil Appeal No. 1200 of 1979 we set aside
\nthe judgment and decree of the Bombay High Court and dismiss
\nthe suit  filed by the respondent. The paries in each appeal
\nwill bear their costs.\n<\/p>\n
S.R.\t\t\t\t\t    Appeals allowed.\n851<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nanakram Etc vs Kundalrai Etc on 29 April, 1986 Equivalent citations: 1986 AIR 1194, 1986 SCR (2) 839 Author: R Pathak Bench: Pathak, R.S. PETITIONER: NANAKRAM ETC. Vs. RESPONDENT: KUNDALRAI ETC. DATE OF JUDGMENT29\/04\/1986 BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J) CITATION: 1986 AIR 1194 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-71038","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNanakram Etc vs Kundalrai Etc on 29 April, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nanakram-etc-vs-kundalrai-etc-on-29-april-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nanakram Etc vs Kundalrai Etc on 29 April, 1986 - 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