01 February 1982
Supreme Court


Case number: Appeal Civil 812 of 1980








CITATION:  1982 AIR  810            1982 SCR  (3) 114  1982 SCC  (1) 520        1982 SCALE  (1)135  CITATOR INFO :  R          1984 SC1376  (7)  R          1987 SC  22  (7)

ACT:      U.P. Urban  Buildings (Regulation  of Letting, Rent and Eviction) Act, 1972-Sections 16(1) (b) and 17(2)-Scope of.

HEADNOTE:      Section  16(1)   (b)  of   the  U.P.   Urban  Buildings (Regulation  of   Letting,  Rent  and  Eviction)  Act,  1972 empowers the District Magistrate to release the whole or any part of  a building  or any  land  appurtenant  thereto,  in favour of  the landlord. Section 17(2) provides that where a part of  a building is in the occupation of the landlord for residential purposes  or is  released in  his  favour  under section 16(1)  (b) for residential purposes the allotment of the remaining  part thereof  under clause (a) of sub-section (1) shall  be made  in favour  of a  person nominated by the landlord.      On intimation  from tho tenant that he was vacating the premises, the  rent control  authority allotted  them to the appellant  without   informing  the   landlady   about   the allotment.  On  appeal  the  District  Judge  cancelled  the allotment made in favour of the appellant      The landlady  then made  an application for delivery of possession of the premises. This application was rejected on the ground  that she  had not  applied for  release  of  the accommodation. Her  application under  section 16(1) (b) for release of  the premises  was rejected and the accommodation was re-allotted  to the  appellant. The  District Magistrate affirmed the order of the rent control authority.      The landlady’s  writ petition  impugning the  orders of the courts below was allowed by the High Court. The case was remitted to  the courts  below for reconsideration afresh of the question of allotment.      In appeal  to this  Court it was contended on behalf of the appellant  that since  the landlady  was not  in  actual physical possession  of the  premises neither  section 16(1) (b) nor  section 17(2)  had any  application to the facts of this case.      Dismissing the appeal, ^



    HELD: The  order of  the prescribed authority allotting the premises  to the  appellant was without jurisdiction and against the  plain terms  of section  17(2) of  the Act. The District Judge had rightly allowed the landlady’s appeal and cancelled The allotment to the appellant. 115      The object  of the  Act is that where a tenant inducted by the  landlord voluntarily  vacates the  premises,  partly occupied by the landlord, allotment in the vacancy should be made only to a person nominated by him, the dominant purpose of such  provision being  to remove any inconvenience to the landlord  by  imposing  or  thrusting  on  the  premises  an unpleasant neighbour  or a tenant who invades the landlord’s right of  privacy. While empowering the prescribed authority to allot  the accommodation, the Act safeguards the right of the landlord to have a tenant of his choice. [117 B-C, D]      In the  instant case  if a  tenant was  thrust  on  the respondent without allowing her an opportunity to nominate a tenant of  her choice  it would  violate the very spirit and tenor of section 17(2). [120 F]      Possession by  a landlord  of his  property may  assume various forms:  a landlord  living outside  the  town  might retain possession  over his  property or a part of it either by leaving  it in  charge of  a servant  or by  putting  his household effects locked up in the premises. Such occupation would be  full and  complete possession  in the  eye of law. [119 F]      In the instant case from the fact that the landlady was residing in another town and so was not actually residing in the premises  it could  not be  said that  she  was  not  in possession of  the premises  or that  she  had  severed  her connection with her own property. [119 G]      The High  Court was justified in quashing the orders of the rent  control authority because no attempt had been made to approach  the landlady for making a nomination in respect of the premises vacated by the original tenant. All that the landlady did  was to  ask for  the release  of the premises. Even if  this was  refused it  was  incumbent  on  the  rent control authority  to have  fulfilled  the  requirements  of section 17(2)  before making  an allotment  in favour of the appellant or  anyone else.  Simply because  the landlady was living outside  the town  it could  not  be  said  that  the provisions of  this sub-section would not apply and that the authorities concerned  could make  an allotment in favour of any person  without giving an opportunity to her to exercise her privilege to nominate a tenant. [120 A-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 812 of 1980      Appeal by  special leave  from the  judgment and  order dated the 23rd November, 1979 of the Allahabad High Court in Civil Misc. Writ No 479 of 1978.      R.K.  Garg,   V.J.  Francis   and  S.K.  Jain  for  the Appellant.      Shanti Bhushan,  R.K Jain,  P.R. Jain  and Pankaj Kalra for Respondent No. 1. 116      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against a  judgment dated November 23, 1979 of the Allahabad High Court  allowing a  writ petition  quashing the order of the Rent Control and Eviction officer and remanding the case



to him  for considering  the question  afresh in  accordance with law  and in  the light  of the observations made by the High Court.      The appeal  involves a  short and  simple point but the case appears to have had rather a long and chequered career. Put briefly,  the facts  of the  case fall  within a  narrow compass so far as the points for decision are concerned. The first  respondent,   Smt.  Rajkumari   Jain,  inducted  Shri Thapalayal as  a tenant in the premises in dispute which are situated in  the town  of Bijnor.  The tenant  intimated his intention to the Rent Control and Eviction officer to vacate the premises  on  25.6.1974  on  receipt  of  the  aforesaid application of  the tenant  a  Rent  Control  Inspector  was directed to  visit the  spot and  after visiting the same he reported that  the premises  in question were likely to fall vacant on  9.6.74. The  prescribed authority  by  its  order dated 1.6.74  allotted the  premises to  the  appellant.  In fact, the  appellant had applied to the authority on 20.5.74 for allotment  of the  accommodation to him. It appears that these  proceedings   were  taken  behind  the  back  of  the respondent landlady who was not taken into confidence either by the  appellant or by the Rent Control authorities. It was only  after   the  prescribed  authority  had  allotted  the premises to  the appellant  and the respondent-landlady came to know of this fact that she moved the prescribed authority for  cancellation  of  the  allotment  but  her  prayer  was rejected.      Thereafter, the  landlady filed  an appeal  before  the Additional District  Judge, Bijnor which was allowed and the allotment in  favour of  the appellant  was cancelled on the ground that  the provisions  of s.  17(2) of  the U.P. Urban Buildings (Regulation  of Letting,  Rent and  Eviction) Act, 1972  (hereinafter  referred  to  as  the  ’Act’)  were  not complied with.  Before narrating  further sequence of facts, it may  be necessary  to examine  the relevant provisions of the Act. Section 17(2) of the Act may be extracted thus:           "Where a  part of  a building is in the occupation      of the landlord for residential purposes or is released      in his favour 117      under clause  (b) of  sub-section (1) of Section to for      residential purposes,  the allotment  of the  remaining      part thereof  under clause  (a) of the said sub-section      (1) shall  be made  in favour  of a person nominated by      the landlord "      A perusal  of this  statutory provision  would  clearly disclose that  the object of the Act was that where a tenant inducted by  the landlord  voluntarily vacates the premises, which are  a part  of the building occupied by the landlord, an allotment  in the vacancy should be made only to a person nominated by  the  landlord.  The  dominant  purpose  to  be subserved 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 ground of personal necessity.  The statute,  however, while empowering the  prescribed   authority  to   allot  the  accommodation, safeguards at  least the  right of  the landlord  to have  a tenant of his choice.      In the  instant case, the admitted position seems to be that when  the prescribed authority allotted the premises to



the appellant,  the landlady  was not  taken into confidence nor was she asked to induct either the appellant or somebody else as the tenant of the premises which were likely to fall vacant or which may have fallen vacant. This was undoubtedly an essential  requirement of  the provisions  of s. 17(2) of the Act  as extracted  above. In  these circumstances, there could be no doubt that the order of the prescribed authority allotting the  premises  to  the  appellant  was  completely without jurisdiction and against the plain terms of s. 17(2) of the  Act. It  was in view of this serious legal infirmity that the  District Judge  allowed the  appeal filed  by  the landlady on  27.1.1976 and  cancelled the  allotment of  the accommodation to  the  appellant.  On  2.2.76  the  landlady herself filed an application before the District Magistrate, Bijnor for  delivery of  possession of  the said premises to her but  the District Magistrate rejected the application by his order  dated 8.3.76  on the  ground that as the landlady had not  applied for release of the accommodation, she could not be  allotted the  premises straightaway.  On 5.4.76  the District Supply officer, Bijnor directed the counsel for the landlady to nominate a person 118 for allotment of the premises. As against this, the landlady applied for  release of the accommodation to her in terms of the provisions of s. 16(1) (b) of the Act which runs thus:           "16. Allotment and release of vacant building.           (1)  Subject to  the provisions  of this  Act, the                District Magistrate may by order:                (a)              xx                 xx                (b)  release the  whole or  any part  of such                     building,  or   any   land   appurtenant                     thereto, in  favour of  the landlord (to                     be called a release order)."      The prayer  of the  landlady under  s. 16(1)  (b)  also appears to have been ignored by the Rent Control authorities and by  an order  dated 15.4.76, the District Supply officer re-allotted the accommodation to the appellant. This led the landlady  to  file  another  appeal  before  the  Additional District Judge,  Bijnor  who  by  his  Order  dated  21.9.77 rejected the  plea of the landlady, dismissed the appeal and confirmed the  order of  allotment. The  respondent-landlady there  upon   filed  a  writ  petition  in  the  High  Court challenged the orders of the District Supply officer as also of the  District Judge  who  had  affirmed  that  order  and confirmed the order of allotment in favour of the appellant. The High  Court by  the  impugned  order  allowed  the  writ petition and  sent the  matter back  to the Rent Control and Eviction officer  to  consider  the  question  of  allotment afresh in view of the observations Made by the High Court.      The appellant then obtained special leave of this Court against the  order of  the High  Court and hence this appeal before us.      In support  of the  appeal, Mr. Shanti Bhushan, learned counsel for  the appellant submitted that the High Court had no jurisdiction  to interfere with the concurrent finding of fact given  by the  District Supply officer and the District Judge confirming  the allotment  in favour  of the appellant and that  too in a writ jurisdiction. He also submitted that the landlady was not at all in actual physical possession of the premises  and had  been living outside Bijnor and, there fore, neither the provisions of s. 16(1) (b) nor those of s. 17(2) of  the Act  would apply  to the  facts of the present case. On the other 119 hand,  the   counsel  for   the  respondent  submitted  that



initially  the   only  question   before  the  Rent  Control Authority was  whether the  allotment should  be made to the appellant even  though he  was not nominated by the landlady under s.  17(2) of  the Act.  It is  common ground  that the appellant  was  not  a  nominee  of  the  landlady  and,  as discussed above,  the District  Judge in his first order had quashed the  allotment on  the ground that the provisions of s. 17(2) had not been complied with.      It was also argued on behalf of the respondent-landlady that the  circumstances having  changed, she  now wanted  to stay in  Bijnor permanently  and as  she  wanted  additional accommodation she  had applied  to the  District  Magistrate under s. 16(1) (b) for releasing the building in her favour. This application  was not at all considered on merits by the District Magistrate  or by any court for that matter. If the respondent  could   succeed  in   convincing  the   District Magistrate that  a case  for release  of the entire building was made out, then the question of allotting the premises to the appellant would not have arisen at all.      We have  gone through the judgment of the High Court in the light  of the  arguments  of  the  parties  and  we  are inclined to agree with the view taken by the High Court that the mere  fact that  the lady did not actually reside in the premises which  were  locked  and  contained  her  household effects, it cannot be said that she was not in possession of the premises so as to make s. 17(2) inapplicable. Possession by a  landlord of  his property  may assume various forms. A landlord  may   be  serving   outside  while  retaining  his possession over  a property  or a  part of  the property  by either leaving  it incharge  of a  servant or by putting his household effects  or things locked up in the premises. Such an occupation  also would be full and complete possession in the eye of law.      It was  further argued  by Mr.  Shanti Bhushan that the landlady had  absolutely no reason to stay in Bijnor because she was  staying with  her son  in some  other town. That by itself is  hardly a  good ground  for the landlady who was a widow to  sever  her  connections  with  her  own  property. Moreover, we  do not  want to  make any  observations on the merits of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.      So far  as the  second point  is concerned,  Viz.,  the question of  allotment of the premises to the appellant, the High Court was fully 120 justified in  quashing the  order  of  the  District  Supply officer as  affirmed by  the District  Judge because despite several opportunities  no attempt  had been made to approach the landlady  to nominate  a tenant. There is no evidence to show that  either  the  prescribed  authority  or  the  Rent Control and  Eviction officer  ever approached  the landlady for making  a nomination  in respect of the premises vacated by the  original tenant  and she  refused to do so. All that the landlady  did was to ask for the release of the premises but even  if this  was refused  it was incumbent on the Rent Control  authorities   to  have   fulfilled  the   essential conditions  of  s.  17(2)  of  the  Act  before  making  any allotment in  favour of the appellant or for that matter any other person.  It was suggested that as the landlady was not living 4 in the premises which were locked up, section 17(2) did not  apply.  We  have  already  rejected  this  argument because even  occupation of apart of a building by the owner which she  may visit  off and  on is possession in the legal sense of the term and, therefore, it cannot be said that the provision of  s. 17(2)  would not  apply and  that the  Rent



Control authorities could make an allotment in favour of any person without  giving an opportunity to the landlady or the landlord to  exercise  her/his  privilege  of  nominating  a tenant.      We have  already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to  protect him/her  from unpleasant  tenants or indecent neighbours who  may make  the life  of  the  owner  a  hell. Moreover, the  conduct displayed  by the  appellant in  this case clearly  shows that  if he was thrust on the respondent without her  being allowed  an  opportunity  to  nominate  a tenant, it  will violate  the very  spirit and  tenor of  s. 17(2) of the Act.      As we  are of  the opinion  that the  order of the High Court has  to be  upheld we  refrain from making any further observations on the merits or any aspect of the matter which have to be gone into afresh as directed by the High Court.      We find no merit in this appeal which is dismissed with costs quantified at Rs. 1,000/- (Rupees one thousand only.). P.B.R.    Appeal dismissed. 121