- Bookmark
- Share
- CaseIQ
Niren Kumar Das v. District Judge
Structured Summary of the Opinion — N.D. Ojha, J.
Factual and Procedural Background
Respondent No. 4, Jamil Ahmad, was the landlord of an accommodation occupied by respondents 5 and 6 as tenants. Respondent No. 4 filed a suit for ejectment against respondents 5 and 6 and the suit resulted in a decree in his favour. Before respondent No. 4 made any application for execution of that decree, respondent No. 5 informed the Rent Control and Eviction Officer that he was going to vacate the accommodation. Subsequently the petitioner applied for allotment of the accommodation and the Rent Control and Eviction Officer passed an order of allotment in the petitioner's favour on 21 December 1971.
On 4 January 1972 respondent No. 4 applied to the Rent Control and Eviction Officer to set aside the allotment order on the grounds that the accommodation was neither vacant nor likely to fall vacant and that the petitioner and respondents 5 and 6 were in collusion and had practised fraud to obtain the allotment. The Rent Control and Eviction Officer dismissed respondent No. 4's application by order dated 25 August 1972. Respondent No. 4 appealed to the District Judge under Section 18 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and the District Judge allowed the appeal on 19 July 1973, finding that the accommodation was neither vacant nor likely to fall vacant on the date of the allotment and consequently that the allotment order was without jurisdiction. The petitioner filed the present writ petition seeking to quash the District Judge's order.
Legal Issues Presented
- Whether the application made by respondent No. 4 on 4 January 1972 to set aside the allotment passed on 21 December 1971 was maintainable and whether Section 43(2)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, applied to such an application that was pending on commencement of the new Act.
- Whether the order of the Rent Control and Eviction Officer dated 25 August 1972 was appealable to the District Judge under Section 18 of the 1972 Act (i.e., whether that order fell within Section 16(5) and whether respondent No. 4 was a person "aggrieved" entitled to appeal).
- Whether the District Judge's factual finding that the accommodation was neither vacant nor likely to fall vacant on 21 December 1971 was erroneous (and as a corollary, whether the original allotment order of 21 December 1971 was beyond jurisdiction).
Arguments of the Parties
Petitioner's Arguments
- Because the allotment order had been passed on 21 December 1971 (before the coming into force of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972), no application for review was maintainable under the old Act (U.P. (Temporary) Control of Rent and Eviction Act, 1947) and therefore the application dated 4 January 1972 could not be treated as an “application or proceeding” under Section 43(2)(b) of the new Act and could not be decided according to the procedure in Section 43(2)(b) and Sections 16 and 17 of the new Act.
- Even if the January 4, 1972 application were maintainable, the appeal filed by respondent No. 4 before the District Judge under Section 18 of the new Act was not maintainable (arguing the order of 25 August 1972 was not an order under Section 16 within the meaning of Section 18).
- The District Judge's factual finding that the accommodation was neither vacant nor likely to fall vacant on the date of allotment (21 December 1971) was erroneous; counsel relied on Babulal v. Sheonath Das to show that the tenant's declared intention to vacate, together with an ejectment decree, could show the accommodation was about to fall vacant.
Respondent(s)' Arguments
The opinion does not contain a detailed account of the respondents' separate legal arguments beyond the factual and procedural steps described (i.e., respondent No. 4's application to set aside the allotment and the grounds relied upon therein are recorded, but the opinion does not present a separately articulated set of respondent legal arguments in adversarial form).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Suraj Narain v. The District Magistrate, 1958 A.L.J. 283 | Administrative officer's power to pass an order includes power to reconsider or cancel it; grounds for cancellation include fraud, misrepresentation, mistake, collusion, inadvertence; an allotment order is not sacrosanct simply because possession has been taken. | The court relied on this authority to hold that respondent No. 4's application of 4 January 1972 to recall or review the allotment was maintainable on the facts stated and to support the proposition that such applications could be heard even after possession had been taken in appropriate circumstances. |
| A.J. Faridi v. Chairman, U.P. Legislative Council, A.I.R. 1963 Alld. 75 (D.B.) | Presumption that the legislature is aware of judicial interpretations when drafting statute; such awareness informs statutory construction. | Used to support the court's purposive interpretation of Section 43(2)(b) — i.e., that the legislature intended to save pending applications and proceedings of the kind recognised under prior judicial construction. |
| Kavastha Co. v. Sitaram, A.I.R. 1929 Alld. 625 | Support for the presumption that legislature knows judicial interpretation (cited in same context as A.J. Faridi). | Invoked to buttress the interpretation that the words "or proceeding" in Section 43(2)(b) were deliberately used to save more than just an application in form and to include proceedings in respect of such applications. |
| Firm Amar Nath Basheshar Dass v. Tek Chand, 1972 1 SCC 893 | Courts should interpret provisions with a view to ascertaining legislative intent and presume provisions are designed to effectuate a particular object. | Relied upon to justify a purposive construction of Section 43(2)(b) and to support the addition (by implication) of the words "in respect of an application" to give effect to legislative intent. |
| A.J. Patel v. State of Gujarat, A.I.R. 1965 Gujarat 23 (F.B.) | Where omission of words would render certain words futile, courts may imply words to gather true legislative intent. | Used by the court to justify implying the words "in respect of an application" into Section 43(2)(b) so the phrase "or proceeding" would not be meaningless. |
| B.G.I. Insurance Co. v. Itbar Singh, A.I.R. 1959 S.C. 1331 | Judicial power to add words where necessary to make statute meaningful. | Cited in support of the court's approach to remedy an apparent textual defect in Section 43(2)(b) by supplementing words to effectuate legislative intent. |
| Seaford Court Estates Ltd. v. Asher, 1949 2 All England Law Reports 155 (Lord Denning) | When a defect appears in a statute a judge should seek the intention of the legislature and supplement the written word to give force and life to that intention. | Quotations from this case were used to justify the constructive interpretative step of adding words to Section 43(2)(b) to preserve legislative purpose. |
| Rameshwar Prasad v. 1st Additional District Judge, A.I.R. 1976 Alld. 323 | Illustrative judicial authority supporting the view that pending proceedings under the old regime may be governed by the new Act's procedure. | Cited as supporting authority for treating the January 4, 1972 application as within the ambit of Section 43(2)(b) and therefore to be disposed of under Sections 16 and 17 of the new Act. |
| J.M. Desai v. Roshan Kumar, 1976 1 SCC 671 | The expression "aggrieved person" is elastic; its meaning depends on the statute's content and the facts; it cannot be rigidly defined. | Relied on to support the conclusion that respondent No. 4 (the landlord) could be an "aggrieved person" entitled to appeal when his statutory right to challenge an allotment was negatived. |
| Ebrahim Aboobakar v. Custodian General, A.I.R. 1952 S.C. 319 | Where a person is given a right to raise a contest and that right is negatived, he is a person aggrieved by the order. | Applied to hold that a landlord who is given rights under the statute to contest an allotment and whose application is dismissed is a person aggrieved who can appeal under Section 18. |
| Punjab Co-operative Bank Ltd. v. Commissioner of Income Tax, A.I.R. 1940 P.C. 230 | Judgments must be read as applicable to the particular facts proved or assumed to be proved; general expressions are qualified by facts of the case. | Used to qualify the petitioner's reliance on Babulal by stressing that precedents must be read in light of their facts. |
| Fateh Kunwar v. Durvija Singh, A.I.R. 1952 Alld. 942 (F.B.) | Decisions must be construed in the light of the facts of the particular case. | Cited to support the proposition that the Babulal observations had to be read in their factual context and thus were distinguishable on the facts of the present case. |
| Jwala Mohan v. State, A.I.R. 1963 Alld. 161 | Support for the principle that judicial decisions are to be construed in the light of particular facts. | Used to reinforce the court's approach in distinguishing Babulal and applying precedent according to facts. |
| S.V. Kondaskar v. V.B. Deshpande, 1972 1 SCC 438 | Support for construing decisions in their factual context. | Invoked to justify the court's treatment of prior authorities as fact-bound when assessing whether the accommodation was "about to fall vacant". |
| Babulal v. Sheonath Das, A.I.R. 1967 S.C. 1329 | Observation that a tenant's declared intention to vacate coupled with an ejectment decree may show the accommodation was about to become vacant (in the factual circumstances of that case execution steps and a warrant had been issued). | The court distinguished Babulal on its facts (noting that in Babulal execution steps including a warrant had been issued) and held that Babulal did not govern the present case where no execution application or warrant had been issued. |
| Lachmi Narain v. Rent Control and Eviction Officer, 1962 A.L.J. 213 | Held that an accommodation cannot be said to be "about to fall vacant" merely because an ejectment decree has been passed; until an executing court issues a warrant for delivery of possession the accommodation is not "about to fall vacant". | The court applied Lachmi Narain to the instant facts and concluded that the accommodation was neither vacant nor likely to fall vacant on 21 December 1971; on that basis the allotment order was held to be without jurisdiction and the District Judge's order setting it aside was correct. |
Court's Reasoning and Analysis
The court addressed the petitioner's three principal submissions seriatim and proceeded as follows:
- On the first submission (maintainability of the January 4, 1972 application and applicability of Section 43(2)(b) of the 1972 Act), the court observed that although the old Act did not explicitly provide for review by the Rent Control and Eviction Officer of orders passed under Section 7, judicial authorities (notably Suraj Narain) had recognised that an administrative officer's power to make an order includes the power to reconsider or cancel it in specified circumstances (fraud, misrepresentation, mistake, collusion or inadvertence). On this footing the court held that respondent No. 4's application of 4 January 1972 was maintainable on the facts alleged.
- The court then analysed the scope of Section 43(2)(b) of the new Act, which preserves pending "applications or proceedings" before the District Magistrate under Section 7 of the old Act and requires disposal under Sections 16 and 17 of the new Act. The petitioner urged a narrow reading that "proceeding" meant only the procedural steps necessary to decide a pending application and that, therefore, the January 4 application was not within Section 43(2)(b). The court rejected that narrow construction on the ground that it would render the words "or proceeding" superfluous and that statutory words should not be construed as meaningless unless compelling reasons exist.
- Applying established principles of statutory construction (including the presumption that the legislature is aware of judicial decisions and the permissibility of implying words to give effect to legislative intent), the court concluded that Section 43(2)(b) was intended to preserve not only formal applications but also proceedings in respect of such applications pending on commencement of the new Act. The court therefore held that the January 4, 1972 application was governed by Section 43(2)(b) and had to be disposed of in accordance with Sections 16 and 17 of the new Act.
- As to the second submission (whether the order of 25 August 1972 was appealable under Section 18), the court examined Section 16(5) of the new Act, which permits review where the landlord or any other person claiming to be lawful occupant satisfies the District Magistrate that an allotment order was not made in accordance with the relevant clauses. The petitioner argued that the phrase "claiming to be lawful occupant" excluded the landlord in some circumstances. The court rejected that argument on textual and purposive grounds, explaining that if the provision were read to exclude the landlord, the legislature's explicit mention of "the landlord or any other person" would be meaningless and the landlord's statutory right to challenge an allotment would be nullified.
- The court further analysed the concept of "person aggrieved" and, relying on authorities, held that a landlord who has been given a statutory right to contest an allotment and whose contest is negatived is indeed a person aggrieved and entitled to appeal. Thus the Rent Control and Eviction Officer's order of 25 August 1972 fell within Section 16(5) and was appealable to the District Judge under Section 18.
- On the factual issue whether the accommodation was vacant or likely to fall vacant on 21 December 1971, the court considered the petitioner's reliance on Babulal. It emphasised the settled principle that precedents are to be read in the factual context in which they arise and distinguished Babulal because, in that case, execution steps including an ejectment warrant had been taken. The court found Lachmi Narain to be directly on point: an ejectment decree alone does not mean a property is "about to fall vacant"; until an executing court issues a warrant for delivery of possession a jurisdictional fact necessary for allotment under the old Act does not exist. Applying Lachmi Narain, the court agreed with the District Judge that the accommodation was neither vacant nor likely to fall vacant on 21 December 1971, rendering the allotment order of that date without jurisdiction.
- The court briefly noted that a point raised by the petitioner (that respondents 5 and 6 had offered to deliver possession but the landlord had refused) had not been shown to have been pressed before the District Judge and therefore could not be raised for the first time in the writ petition.
Holding and Implications
Holding: The writ petition is dismissed. The court found no merit in the petition challenging the District Judge's order and dismissed it with costs. The petitioner was granted one month's time to vacate the accommodation.
Implications:
- The immediate legal consequence is that the District Judge's order setting aside the allotment (on the ground that the accommodation was neither vacant nor likely to fall vacant and therefore the allotment was without jurisdiction) stands upheld by the High Court.
- The court's reasoning confirms: (a) that applications to review or recall allotment orders may be maintainable in specified circumstances (fraud, misrepresentation, mistake, collusion), (b) that Section 43(2)(b) of the 1972 Act applies to applications and proceedings in respect of such applications pending at the commencement of the new Act and requires their disposal under Sections 16 and 17, and (c) that a landlord who is given a statutory right to contest an allotment and whose contest is dismissed is a person "aggrieved" entitled to appeal under Section 18.
- The opinion does not announce or state that it establishes a novel, binding precedent beyond applying and reconciling existing authorities to the facts; its conclusions are primarily fact-driven and interpretative of the new Act's transitional provision (Section 43(2)(b)).
End of summary. All statements above are derived from and constrained by the text of the provided opinion; no information has been added beyond that source.
N.D Ojha, J.:— Respondent No. 4 Jamil Ahmad is the landlord of an accommodation of which respondents 5 and 6 were the tenants. Respondents No. 4 filed a suit for ejectment of respondents 5 and 6. The suit was decreed. Before, however, even an application for execution of the decree was made by respondent No. 4 an application was made by respondent No. 5 before the Rent Control and Eviction Officer intimating him that he was going to vacate the accommodation aforesaid. It appears that another application was made by the petitioner for allotment of the said accommodation. An order of allotment was passed by the Rent Control and Evict on Officer in favour of the petitioner on December 21, 1971. Coming to know of the order of allotment respondent No. 4 made an application before the Rent Control and Eviction Officer on January 4, 1972, for setting aside that order. As is apparent from the order of the Rent Control and Evict on Officer dated August 25, 1972, a copy of which has been filed as Annexure-IV to the writ petition, the said application had been made on the ground that the accommodation in question was neither vacant nor was likely to fall vacant and that the petitioner and respondent 5 and 6 were in collusion and by practising fraud obtained the order of allotment referred to above. This application was contested by the petitioner and was dismissed by the Rent Control and Eviction Officer by the aforesaid order dated August 25, 1972. Against that order respondent No. 4 filed an appeal before the District Judge under Sec. 18 of the U.P Urbau Building (Regulation of Letting), Rent and Eviction Act, 1972. The appeal was allowed on July 19, 1973, on the finding that the accommodation in question was neither vacant nor was likely to fall vacant on the date when the order of allotment was passed in favour of the petitioner and consequently the said order was without jurisdiction. It is this order of the District Judge which is sought to be quashed in the present writ petition.
2. Three submissions were made by counsel for the petitioner—(I) that the order of allotment having been passed on December 21, 1971, i.e, before the coming into force of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, no application for review was maintainable in as much as under the old Act, viz., U.P (Temporary) Control of Rent and Eviction Act, 1947 (U.P Act III of 1947) there was no provision for filing an application for review against an order of allotment. As such the application which had been made by respondent No. 4 on January 4, 1972, could not have been treated to be an “application or proceeding” within the meaning of Sec. 43(2)(b) of the new Act and could not be decided in accordance with the procedure laid down in Sec. 43(2)(b)(2) Even the appeal which was filed before the District Judge under Sec. 18 of the new Act was not maintainable and (3) that the finding: of the District Judge that the accommodation in question was neither vacant nor was likely to fall vacant was erroneous. I will deal with these submissions seriatim. So far as the first submission is concerned it is true that there was no specific provision entitling the Rent Control and Evict on Officer exercising the delegated powers of the District Magistrate to review an order passed by him under Sec. 7 of the Act. Even so the Rent Control and Eviction Officer was held to be entitled to recall or review an order passed under Sec. 7 in certain circumstances. Considering the relevant law on the point a Division Bench of this court in Suraj Narain v. The District Magistrate . 1958 A.L.J 283. took the view that no exception can be taken to the general proposition that the power in an administrative officer to pass an order includes the power of reconsider or cancel it and that in exercising this power the officer concerned should use his own free and independent judgment and should not act at the bidding of some one else. It was also decided in the said case that there can be no doubt that ordinarily an order of allotment can be modified or cancelled only it in pursuance of it the allottee has not taken possession. There, however, appears to be warrant for the assumption that fraud or misrepresentation of the allottee are the only grounds on which the order of allotment can be cancelled or modified after it has been acted upon. Mistake, gnorance of the real facts, collusion, and inadvertence appear to stand on the same footing as fraud or misrepresentation of facts and can he equally good grounds justifying the modification or the cancellation of an order. If fraud or misrepresentation. Not the allottee himself is a good ground for the reconsideration of the matter, there appears to be no reason why the allottee should be allowed to take advantage of the fraud or misrepresentation of someone else and to maintain the order of allotment in Iris favour if it was passed on the basis of that fraud or misrepresentation. If the Officer who passed the order finds that the order has been passed by mistake or under misapprehension of facts and should not have been passed at all there is no reason why he should not have the power to correct his own mistake, and to set matters right. The order does not become sacrosanct and immune from reconsideration simply because the allottee managed to get possession on its basis and was not himself guilty of fraud or misrepresentation. In this view of the matter there can be no manner of doubt that the application which respondent No. 4 had made before the Rent Control and Eviction Officer on January 4, 1972, was maintainable on the facts stated therein. Even though the said application had been made on January 4, 1972, it could not be decided till the U.P Urban Buildings (Regulation of fietting, Rent and Eviction) Act, 1972, was passed and was pending on the date of the commencement of the said Act. Sec. 43(2)(b) of the new Act provides that notwithstanding the repeal of U.P Act III of 1947 any application or proceeding pending, immediately before the commencement of the new Act before the District Magistrate under Sec. 7 of the old Act or under Rule 6 of the Control of Rent and Evict on Rule, 1949, made under Sec. 17 of the old Act shall be disposed of by him in accordance with the provisions of Secs. 16 and 17 of the new Act.
3. It was urged by counsel for the petitioner that the application which had been made by respondent No. 4 on January 4, 1972, was neither an application under Sec. 7 of the old Act nor proceeding under the said section and as such even though the said application was pending immediately before the commencement of the new Act Sec. 43(2)(b) was not attracted. According to learned counsel for the petitioner the word “proceeding” in Sec. 43(2)(b) will include only such steps or procedure recourse to which was necessary to be taken to decide the application made under Sec. 7. The word “proceeding” was according to counsel confined to a pending application. I, however, find myself unable to agree with this submission. If Sec. 43(2)(b) is interpreted that way the words “or proceeding” will become superfluous and meaningless. Once it was provided that any application pending immediately before the commencement of the new Act before the District Magistrate under Sec. 7 of the old Act shall be disposed of by him in accordance with the ??? of Secs. 16 and 17 of this act, it was not necessary to use the words “or proceeding” also if those words only meant the steps or procedure recourse to which had to be taken for deciding a pending application. Since a pending application was to be decided in accordance with the provisions of Sec. 16 and 17 of this Act the steps and the procedure, recourse to which had to be taken under Sec. 16 and 17 for deciding such an application would automatically be available in as much as the said application was to be decided in accordance with those sections. It is settled law that no words of a statute are to be held to be superfluous or meaningless unless there are compelling reasons. In my opinion there is no such compelling reason which may impel me to interpret Sec. 43(2)(b) in a manner that the words “or proceeding” may be rendered superfluous or meaningless. On the other hand to me it appears that these words were used by the legislature with a definite purpose. It is a settled principle of construction of a statute that the legislature is presumed to know the interpretation put on it by Judicial decisions (see A.J Faridi v. Chairman, U.P Legislative Council . A.I.R 1963 Alld. 75 D.B. also see Kavastha Co. v. Sitaram . A.I.R 1929 Alld. 625 at p. 630 F.B.. As seen above a Division Bench of this Court had inter-pretted the law under the old Act to be that an application for recalling an order of allotment passed under Sec. 7 was main tainable in certain circumstances. The legislature would be deemed to be aware that such application being maintainable, most of them would be pending on the date of the commencement of the new Act. There may be other applications, for instance, applications for setting a side ex parte orders on showing sufficient cause for non-appearance on the date fixed when such an order may have been passed. To me it appears that in using the words “or proceeding” the legislature clearly intended to save all those applications. A perusal of the scheme of the new Act makes it clear that the procedure under the old Act in respect of pending proceedings was abrogated and they were to be decided under the new Act. Sec. 43(2) of the Act, supports this view. If that be the situation the acceptance of the interpretation placed on Sec. 43(2)(b) of the Act by counsel for the petitioner would run contrary to the legislative intent in this behalf. In Firm Amar Nath Basheshar Dass v. Tek Chand . 1972 1 SCC 893 it was held that it cannot begain said that one of the duties imposed on the courts in interpreting a particular provision of law, rule or notification is to ascertain the meaning and intendment of the legislature or of the delegate, which in exercise of the powers conferred on it, has made the rule or notification in question. In doing so, we must always presume that the impugned provision was designed to effectuate a particular object or to meet a particular requirement and not that it was intended to negative that which it sought to achieve. Construing in that light in my opinion the word “in respect of an application” will have to be added after the word “proceeding” and before the word “pending” in Sec. 43(2)(b) for purposes of interpreting the said provision so that the purpose of the legislature could be served and not defeated. In A.J Patel v. State of Gujrat . A.I.R 1965 Gujrat 23 F.B. Mr. Justice Bhagwati in paragraph 57 of the report held that “this well settled that where the effect of not implying something which the legislature has omitted to state in express terms would be to render certain words futile and devoid of meaning, implications can and must be made by the courts for the purpose of gathering the true legislative intent”. Likewise in a case where a certain provision of statute is meaningless or of doubtful meaning it is permissible to courts to add words (see B.G.I Insurance Co. v. Itbar Singh . A.I.R 1959 S.C 1331.. In Seaford Court Estates, Ltd. v. Asher . 1949 2 All England Law Reports 155. Lord Dennirtg on page 164 held that when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social condition which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.” If Sec. 43(2)(b) is interpreted in the above manner it is not only an application under Sec. 7 of the old Act which was pending on the commencement of the new Act before the District Magistrate which will have to be decided in accordance with the provisions of Sec. 16 and 17 of the new Act, every such proceeding will have to be decided in a similar manner which was in respect of an application under Sec 7 of the old Act and was pending on the crucial date. If the words “in respect of an application” are supplemented as aforesaid it will not only save the words “or proceeding” from being rendered redudant and meaningless but it will also give “force and lie” to the intention of the legislature in the words of Lord Denning in Seaford Court Estates Ltd.'s case. The view which I take also finds support from the decision of a learned single Judge of this court in Rameshwar Prasad v. 1st Additional District Judge . A.I.R 1976 Alld. 323..
4. In view of the foregoing discussions I am of opinion that the provision of Sec. 43(2)(b) of the new Act were attracted to the application made by respondent No. 4 on January 4, 1972, and the said application had to be decided in accordance with the provisions of Sec. 16 and 17 of the new Act.
5. Elaborating his second submission counsel for the petitioner urged that the appeal which had been filed by respondent No. 4 before the District Judge against the order of the Rent Control and Eviction Officer dated August 25, 1972, was not maintainable for two reasons— (1) that the said order could not be said to be an order under Sec. 16 of the Act within the meaning of Sec. 18 which contains the provision for appeal, and (2) that respondent No. 4 cannot be said to be a person aggrieved in as much as unless he had already made an application for release of the accommodation in question in his favour it was immaterial for him as to who was the person in whose favour an order of allotment was passed in respect thereof. I am unable to agree with this submission either. In so far as the first part of the submission is concerned I am of opinion that the order dated August 25, 1972, would fall under sub-sec. (5) of Sec. 16 of the Act which reads:—
“(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-sec. (1), the District Magistrate may review the order.
Provided that 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. According to counsel for the petitioner the words “claiming to be lawful occupant” in sub-sec. (5) of Sec. 16 would govern not only any other person but also the landlord. It was urged that since in the instant case the landlord could not be said to be a person who was in lawful occupation of the building, sub-sec. (5) was not applicable. In my opinion if this construction is put to sub-sec. (5), no landlord would be in a position to make an application for setting aside an order of allotment passed under clause (a) of Sec. 16(1) of the Act. In those cases where the accommodation has actually fallen vacant and has been occupied by the landlord, his occupation would be lawful in his capacity of being the owner of the property only till an order of allotment has been passed in respect of the said accommodation. The moment an order of allotment is passed which has the effect of issuing a direction to the landlord to let out the accommodation to the allottee the landlord is bound to place the allottee in possession over the accommodation. If he fails to do so and continues to occupy the property, his continuance would become unlawful. Likewise, if it is a case falling under Sec. 12 of the Act, viz., even though the accommodation has not actually been vacated by the sitting tenant but in respect of which a deemed vacancy can be presumed the landlord will not be in position to make an application under sub-sec. (5) in as much as he is not actually occupying the house. The distinction between possession and occupation is well settled. When the legislature specifically conferred a right on the landlord to make an application for setting aside an order of allotment passed under Sec. 16(1)(a) that right cannot be negatived by interpreting the said sub-section in a manner as suggested by counsel for the petitioner. In my opinion the words, “claiming to be lawful occupant” apply only to other persons. They do not apply to the landlord. The matter can be looked at from another angle. Bad the intention of the legislature been, as has been submitted by counsel for the petitioner, the words “the landlord or any other” would not have used at all. In place of these words the word “any” could have served the purpose. In that event sub-sec (5) would have started with the words “where any person claiming to be lawful occupant”. I am, therefore, of opinion that the application which had been made by respondent No. 4 on January 4, 1972, would be an application of the nature contemplated by sub-sec. (5) of Sec. 16 of the Act and the order of the Rent Control and Eviction Officer dated August 25, 1972, would in view of Sec. 43(2)(b) be one under Sec. 16(5) and would accordingly be appealable under Sec. 18 of the Act.
7. Coming to the second limb of the submission made by counsel for the petitioner in this behalf it would be seen that the expression “aggrieved person” denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him (see J.M Desai v. Roshan Kumar . 1976 1 SCC 671. In Ebrahim Aboobakar v. Custodian General . A.I.R 1952 S.C 319. it was held that when a person is given a right to raise a contest in a certain matter and his contention is negatived then he is certainly a person aggrieved by the order disallowing his contention. As seen above both under the old Act in certain contengencies and under Sec. 16(5) of the new Act a landlord has been given a right to raise a contest in respect of the validity of an order of allotment. If he makes an application in exercise of that right and an order is passed dismissing his application he would certainly be a person aggrieved and would be entitled to file an appeal against the said order. I am, therefore, of opinion that even the second submission made by counsel for the petitioner that the appeal filed by respondent No. 4 was not maintainable has no force.
8. In support of the last submission that the finding of the District Judge that the accommodation in question was neither vacant nor was likely to fall vacant, and, therefore, the Rent Control and Eviction Officer did not have any Jurisdiction to pass the order of allotment dated December 21, 1971, in favour of the petitioner, counsel for the petitioner placed reliance on the following observations made in Babulal v. Sheonafh Das . A.I.R 1967 S.C 1329.
“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.”
9. It is settled law in regard to precedents that a judgment has to be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of whole law but governed or qualified by the particular facts of the case in which such expressions are to he found. See Punjab Co-operative Bank Ltd. v. Commissioner of Income Tax . A.I.R 1940 P.C 230.. For the proposition that decisions have to be construed in the light of the facts of the particular case reference may also be made to Fateh Kunwar v. Durvija Singh . A.I.R 1952 Alld. 942 F.B., Jwala Mohan v. State . A.I.R 1963 Alld. 161 para. 7 F.B. and S.V Kondaskar v. V.B Deshpande . 1972 1 SCC 438. Construed in that light it would be seen that in Babulalis case an application for execution had been made and a warrant for ejectment had also been issued. Both the landlord and the tenant represented to the authority concerned that the accommodation was likely to fall vacant. It was in this context that the aforesaid observations were made in the said case. Coming to the facts of the instant case it would be seen that here even an application in for execution of the decree was not made by respondent No. 4 much less to say of any warrant for ejectment being issued by the execution court. The only thing which was done was that an application was made by respondent No. 5 namely by one of the contenants before the Rent Control and Eviction Officer that he was going to vacate the accommodation. He alone was not the sole tenant. He was a co-tenant along with respondent No. 6. A similar intimation as the one given by respondent No. 5 was not given by respondent No. 6 also. The landlord's case consistently has been that the accommodation neither fell vacant nor was likely to fall vacant. It is in this context that the question as to whether the accommodation was vacant or was likely to fall vacant on December 21, 1971, when the order of allotment was passed in favour of the petitioner has to be construed. In Lachmi Narain v. Rent Control and Eviction Officer . 1962 A.L.J 213. a Division Bench of this court held that an accommodation cannot be said to be “about to fall vacant” simply because an ejectment decree had been passed against the tenant. So long as the executing court had not issued a warrant for delivery of possession it could not be said that the shop was about to fall vacant and the District Magistrate had no jurisdiction to issue an order of allotment. The law as laid down by this court in Lachmi Narain's case would be applicable to the facts of the instant case. Applying that law I am of opinion that the District Judge was right in taking the view that the accommodat on in question was neither vacant nor was likely to fall vacant on December 21, 1971, when the order of allotment was passed in favour of the petitioner and that the said order was without jurisdiction. That a particular accommodation should neither be vacant or should be likely to fall vacant was a condition precedent to the passing of an order of allotment in respect of that accommodation under Sec. 7 of the old Act. This was so to speak a jurisdictional fact.
10. Even under the new Act an accommodation can be allotted ??? if it is or has fallen vacant which will include deemed vacant under Sec. 12 of the new Act. If the accommodation in question was not at all vacant nor was likely to fall vacant the order of allotment would be within jurisdiction and could validly be set aside on this ground alone as has been done by the District Judge in the instant case.
11. In this connection it was also urged by counsel for the petitioner that in the present proceedings both respondents 5 and 6 had taken the stand that both of them had offered to deliver possession to the landlord respondent No. 4 but he refused to take possession on the pretext that he would take delivery of possession in execution of the decree and the District Judge has not considered this aspect of the matter. In respect of this submission suffice it to say that nowhere it has been stated in the writ petition that this plea was raised before the District Judge and yet he failed to consider it. The petitioner as such is not entitled to raise this point for the first time in this stage.
12. No other point has oeen pressed.
13. I find no merit in this writ petition. It is accordingly dismissed with costs. The petitioner is, however, granted one month's time to vacate the accommodation.
14. Petition dismissed.
Alert