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Allahbad High Court
N.D.OJHA
Niren Kumar Das - Appellant
Versus
The District Judge, Pilibhit - Respondent
Decided On : 10/10/1976
LANDLORD AND TENANT - EVICTION - ALLOTMENT OF VACANT ACCOMMODATION - JURISDICTION OF RENT CONTROL AND EVICTION OFFICER - INTERPRETATION OF SECTION 43 (2) (B) OF THE U. P. URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) ACT, 1972 - APPLICATION FOR REVIEW OF ALLOTMENT ORDER - MAINTAINABILITY - APPEAL AGAINST ORDER OF REVIEW - MAINTAINABILITY - CONDITION PRECEDENT FOR ALLOTMENT OF ACCOMMODATION - VACANCY OR LIKELIHOOD OF VACANCY - JURISDICTIONAL FACT.
Fact of the Case:
Respondent No. 4, the landlord, filed a suit for ejectment of respondents 5 and 6, the tenants. The suit was decreed. Before applying for execution of the decree, respondent No. 5 informed the Rent Control and Eviction Officer (RCEO) of his intention to vacate the accommodation. Another application was made by the petitioner for allotment of the said accommodation. An order of allotment was passed in favor of the petitioner on December 21, 1971. Respondent No. 4 applied to the RCEO on January 4, 1972, to set aside the allotment order, alleging collusion and fraud between the petitioner and respondents 5 and 6. The application was dismissed by the RCEO on August 25, 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. The appeal was allowed on July 19, 1973, finding that the accommodation was neither vacant nor likely to fall vacant on the date of the allotment order. The petitioner challenged this order in a writ petition.
Finding of the Court:
1. The application made by respondent No. 4 on January 4, 1972, was maintainable under Section 43 (2) (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as it was an application in respect of an application under Section 7 of the old Act (U. P. (Temporary) Control of Rent and Eviction Act, 1947) which was pending on the commencement of the new Act. 2. The appeal filed by respondent No. 4 before the District Judge against the order of the RCEO dated August 25, 1972, was maintainable as the order was under Section 16 (5) of the new Act and appealable under Section 18. 3. The finding of the District Judge that the accommodation in question was neither vacant nor likely to fall vacant on the date of the allotment order was correct and the order of allotment was without jurisdiction.
Issues: 1. Whether the application made by respondent No. 4 on January 4, 1972, was maintainable under Section 43 (2) (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972? 2. Whether the appeal filed by respondent No. 4 before the District Judge against the order of the RCEO dated August 25, 1972, was maintainable? 3. Whether the finding of the District Judge that the accommodation in question was neither vacant nor likely to fall vacant on the date of the allotment order was correct?
Ratio Decidendi: 1. Section 43 (2) (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, provides that any application or proceeding pending immediately before the commencement of the new Act before the District Magistrate under Section 7 of the old Act or under Rule 6 of the Control of Rent and Eviction Rules, 1949, made under Section 17 of the old Act shall be disposed of by him in accordance with the provisions of Sections 16 and 17 of the new Act. 2. The words "or proceeding" in Section 43 (2) (b) include applications for setting aside ex parte orders on showing sufficient cause for non-appearance on the date fixed when such an order may have been passed. 3. The landlord has a right to make an application for setting aside an order of allotment passed under Section 16 (1) (a) of the Act, and the words "claiming to be lawful occupant" in sub-section (5) of Section 16 apply only to other persons. 4. An accommodation cannot be said to be about to fall vacant simply because an ejectment decree has been passed against the tenant. So long as the executing court has not issued a warrant for delivery of possession, it cannot be said that the accommodation is about to fall vacant and the District Magistrate has no jurisdiction to issue an order of allotment.
Final Decision: The writ petition was dismissed with costs. The petitioner was granted one month's time to vacate the accommodation.
2. Three submissions were made by counsel for the petitioner- (1) 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 inasmuch 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 Section 43 (2) (b) of the new Act and could not be decided in accordance with the procedure laid down in Section 43 (2) (b); (2) even the appeal which was filed before the District Judge under Section 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.
3. I will deal with these submissions seriatim.
4. So far as the first submission is concerned it is true that there was no specific provision entitling the Rent Control and Eviction Officer exercising the delegated powers of the District Magistrate to review an order passed by him under Section 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 Section 7 in certain circumstances. Considering the relevant law on the point a Division Bench of this court in Suraj Narain v. District Magistrate (1958 All LJ 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 to 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
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