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PETITIONER: CHIMANDAS  BAGOMAL SINDHI

       Vs.

RESPONDENT: JOGESHWAR AND ANOTHER

DATE OF JUDGMENT: 08/11/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1233            1963 SCR  Supl. (1) 968

ACT: Letting of Houses and Rent Control-Provisions for collection of information and letting of accomodation-Construction  of- Displaced person-Meaning-Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, cls. 22, 23, 24, 24A 13, 2(2).

HEADNOTE: The respondent had let out his house to a firm against  whom he  obtained permission from the Rent Control  Authority  to terminate  the  tenancy on the ground of  arrears  of  rent. Meanwhile,  the  tenant  intimated  to  the  respondent   by telegram that he had vacated the premises, but prior to  the receipt  of the telegram, the appellant bad applied  to  the Additional Deputy Commissioner that since the premises  were likely to fall vacant, they should be allotted to him as  he was  a displaced person, and provisional allotment was  made in  his  favour and he continued to be in  possession  since then.  The respondent then moved for the cancellation of the said allotment on the ground that he needed the premises for his  own use, but the allotment was confirmed in  favour  of the  appellant by, the Additional Deputy Commissioner.   The respondent then filed a writ petition in the High Court  for cancellation of the said order, which was set aside and  the case  was  remanded  for disposal in  accordance  with  law; against  this the appellant filed a Letters  Patent  Appeal. On remand the earlier order was confirmed by the  Additional Deputy  Commissioner,  against which  the  respondent  filed another writ petition in the High Court.  The Letters  969 Patent  Appeal and the subsequent writ petition  were  heard together  and the High Court allowed the writ  petition  and set aside the order of allotment in favour of the  appellant on the ground that as soon as it appeared that the appellant had  a  place  of business of his own, he  ceased  to  be  a displaced  person  within the meaning of cl. 23(1)  and  the other relevant clauses. Held, that cl. 23(1) refers to the persons in the  specified categories  and empowers the Deputy Commissioner to make  an order  of allotment in their favour.  There are no terms  of

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limitation qualifying the said persons and the scheme of the relevant  provision  does not seem to contemplate  any  such limitation.  Clause 23(1), as well as cls. 24 and 24A do not necessarily  exclude the cases of persons specified in  them on  the  ground  that  the  said  persons  already  have  an accommodation  of their own and the High Court was in  error in  assuming  that the provisions of cis. 23(1),24  and  24A impliedly  postulated  that  the persons  belonging  to  the respective  categories  specified  by  them  could   receive allotment  only  if they had no  previous  accommodation  of their own. Held,  further,  that  after remand  the  Additional  Deputy Commissioner  did  not  properly appreciate  the  scope  and effect of the provision contained in the relevant clause and he  took an unduly narrow view of the limits of the  enquiry which  he was bound to hold as a result of the remand  order and that has vitiated his final conclusion.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 201/60. Appeal  by special leave from the judgment and  order  dated June  18, 1958, of the Bombay High Court, Nagpur,  in  Misc. Petn.  No. 391 of 1956. M.C. Setalvad, Attorney-General for India, S. N. Andley, and Rameshwar Nath, for the appellant. S.N.  Kerdekar, N. K. Kherdakar and A. G.  Ratnaparkhi,  for the respondent No. 1. 1962.   November 8. The judgment of the Court was  delivered by 970 GAJENDRAGADKAR J.-This appeal raises a’ short question about the  construction of clauses 23, 24 and 24-A in The  Central Provinces  and  Berar  Letting of Houses  and  Rent  Control Order,  1949 (hereinafter called the Order).  jogeshwar  s/o Parmanand Bhishikar (hereinafter called the respondent) owns a house known as the Bhishikar Bhawan in Nagpur.  Block  No. 2A had been let out by him to a firm known as the  Dayalbagh Stores  for carrying on business.  Since the tenant  was  in arrears  as to rent,, the respondent obtained from the  Rent Control   Authorities  permission  to  terminate  the   said tenancy.  Meanwhile, the tenant intimated to the  respondent by  telegram on July 24, 1955, that it had vacated the  said premises  on  that  day.   Prior  to  the  receipt  of  this telegram,  however, the appellant Chimandas  Bagomal  Sindhi had  made  an application to the Addl.   Dy.   Commissioner, Nagpur, on July 15, 1955, that the premises occupied by  the said tenant were likely to fall vacant, and prayed that  the same should be allotted to him as he was a displaced  person within the meaning of the Order.  The Addl.  D. C. passed an order of provisional allotment in favour of the appellant on the  same  day  and since then, the appellant  has  been  in possession of the said premises. The respondent then came to know about the said  provisional allotment  and gave intimation to the Addl.  D. C.  that  he needed the, premises for his own purposes, and so, he  moved for  the  cancellation  of the  said  provisional  allotment order.   On  July 23, 1956, the Addl.  D. C.  purporting  to exercise  his  powers  under  clause 23  (1)  of  the  Order confirmed  the  provisional  allotment  in  favour  of   the appellant. The  respondent then moved the Nagpur High Court by  a  writ petition No. 307 of 1955 for cancellation of the said order. On  April 10, 1956, Mr.Justice Bhutt set aside the order  of

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allotment  and remanded the case for disposal in  accordance with  971 law.  That is how the first stage of this dispute came to an end. On  remand,  the  Addl.   Dy.   Commissioner  confirmed  the earlier order.  He held that the respondent did not need the premises  for his own occupation and he thought  that  there was  no  going  back on the  earlier  provisional  order  of allotment in favour of the appellant.  This second order was challenged by the respondent by another writ petition  filed in the Nagpur High Court (No. 391 of 1956).  Meanwhile,  the appellant had filed a Letters Patent Appeal (No. 95 of 1956) against  the  decision  of Bhutt, J., on  the  earlier  writ petition  filed  by the respondent.  By  consent,  the  said Letters Patent Appeal and the subsequent writ petition filed by the respondent were heard together by a Division Bench of the High Court.  ’The Division Bench has set aside the order of  allotment passed in favour of the appellant and  allowed the subsequent writ petition filed by the respondent.  It is against this order that the appellant has come to this Court by special leave. It appears that after remand, the respondent .brought it  to the notice of the Addl.  D. C. that the appellant owned As.- /4/-  share  in  the Hind Vastra Bhandar and  that  he  had, therefore  a  place where he could carry  on  his  business. This allegation was repeated by the respondent in his second writ  petition and it was urged by him that in view  of  the fact that the appellant had a place of business of his  own, he  was not entitled to the accommodation alloted to him  by the  impugned order.  This plea was met by the appellant  on the  ground’ that the business mentioned by  the  respondent bad  been  dissolved.   From  the  affidavit  filed  by  the appellant  in that behalf it does appear that the  appellant had  a  share in the Hind Vastra Bbandar and  Krishna  Watch Co.. both of which Partnerships carried on their business at Nagpur, but on 972 April  8, 1957 the said partnerships had been dissolved  and so, after the said date of dissolution there was no place of business  to  which the appellant could lay any  claim.   In support;  of this plea, the appellant has filed the deed  of Dissolution in question., The High Court has held that reading the definition of  the words "displaced person prescribed by clause 2 (2)  together with  the relevant clause of the Order  under  which  the impugned allotment had been made in favour of the appellants it  must  be, held that the appellant was  not  a  displaced person  and  as  such,  he was  not  entitled  to  the  said allotment.  That is how the main point which arises for  our decision in the present appeal is ’about the construction of the said relevant clauses of the Order. The  order had been passed by the Government of the  Central Provinces,  and Berar by virtue of the powers conferred  on it by section 2 of the Central     provinces  and Berar  Act No. XI of 1946.  Sub-clause (2)of  clause  2  defines  A displaced  person as meaning any person who, on  account  of the setting up of the Dominions of India and Pakistan, or on account  of civil disturbances or fear of such  disturbances in any area now forming part of Pakistan has been  displaced from  or has left his place of residence in such area  after the  1st day of March, 1947, and who has  subsequently  been residing  in  India.  The  Appellant claims  to  be  such  a displaced person. Clause  13 provides, inter alia, that the landlord would  be

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entitled  to claim ejectment of his tenant if he shows  that he needs the house or portion thereof for the purpose of his bona fide residence, provided he is not occupying any  other residential house of his own it the city or town  concerned. He  can also obtain: ejectment of his tenant if it is  shown that  the,, tenant has secured alternative accommodation  or has left the area for a continuous 973 period  of  four  months and does not  reasonably  need  the house. Clauses  22 to 27 form part of Chapter III which deals  with the    collection   of   information   and   letting,    "of accommodation.   Clause 22 (1) provides that every  landlord of a house situate in an area to which this Chapter applies, shall  give  intimation  about  the  impending  vacancy   as specified  by subclauses (a) and (b). s Clause 22  (2)  lays down  that  no person shall occupy any house in  respect  of which this Chapter applies except under an order under  sub- clauses (1) of clause 28 or clause,, 24 or on an  assurance from  the landlord that the house is being permitted  to  be occupied  in accordance with sub-clause (2) of  clause  23. It  would  thus be noticed that all vacancies  occurring  in houses  governed  by’ Chapter III have to be filled  in  the manner specified by clause 22 (2). Clause  23(1)  provides that on receipt  of  the  intimation under; clause 22, the, Dy.  Commissioner may within  fifteen days from the date of receipt of the said intimation,  order the  landlord to let the vacant house to any person  holding an, office of profit under; the Union or State Government or to  any  Person  holding it post under  the  Madhya  Pradesh Electricity  Board,  or  to  a displaced  person  or  to  an evicted,   person  and  thereupon..’   notwithstanding   any agreement to the contrary, the landlord shall let the  house to   such  person  and  place  him  in  possession   thereof immediately,  if  it  is vacant or as  soon  as  it  becomes vacant.  The proviso to this sub-clause gives right to  the, landlord  to  plead  that he needs the  house  for  his  own occupation, and if such a plea is accepted by theDy.Commissioner, the landlord would, be  allowed to occupy the same. In other words, in cases  falling underclause 23 (1) before  the D.C.makes an order directing the landlord to let the house to one of the personsspecified.    in   the    different categories by that clause, it  would be open to the landlord to urge 974 his  own  need and if that need is  established,  an  order’ under clause 23(11) would not be passed against him.  Clause 23(2)  provides that if no-order is passed and  served  upon the landlord within the period specified in sub-clause  (1), he shall be free to let the vacant house to any person. Clause  24 provides for the penalty for  noncompliance  with the.  requirements of clause 22(1).  Under this clause,  the Dy.  Commissioner is empowered to order the landlord to  let the house forthwith to any of the persons falling under  the categories  specified  by  that  clause.   Since  the  power conferred on the D. C. to make an order under this clause is intended, in a sense, to punish the landlord for his contra- vention  of  clause  22, it prima  facie  appears  that  the landlord is not given an opportunity to’ prove his own need as under the proviso to 23 (1). Clause  24-A  deals with cases where the  Dy.   Commissioner receives information to the effect that a house is likely to become  vacant or available for occupation by  a  particular date ; and in such cases it empower.% the Dy.   Commissioner to, make an,. order on the same lines as provided by  clause

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23(1).  This clause lays down that the order passed under it shall be complied with by the landlord unless the house does not  become  vacant or available for occupation  within  one month from the date of receipt by him of the said order,  or the landlord applies for the cancellation of the said  order stating  his grounds thereof.  This provision means that  an order  passed  under  clause 24A can be  challenged  by  the landlord by pleading that he needs the premises for  himself That, in brief, is the scheme of the relevant provisions. The  High  Court has taken the view that  in  allotting  the premises in question to the appellant’ the Addl.  D. C.  has failed  to notice the fact that on July 15, 1955,  when  the provisional allotment order  975 was passed, the appellant had a place of business of his own inasmuch  as-he was a 4 annas sharer in a partnership  which had its place of business.  According to the High Court,  as soon  as  it  appeared that the appellant  had  a  place  of business  of  his own, he ceased to be  a  displaced  person within  the meaning of clause 23(1) and the  other  relevant clauses.  This conclusion proceeded on the basis that though the  appellant may be taken to have satisfied  the  require- ments of the definition of the expression "displaced person" under  clause  2(2), that definition had to be read  in  the light of the context of clause 23(1) and its meaning had  to be controlled by the said context.  Clause 2 begins with the words that in this Order, unless there is anything repugnant in the subject or context, the defined terms will carry  the meaning assigned to them by the respective definitions.  The whole  object of enabling the Dy.  Commissioner to  make  an order  of allotment in respect of the persons  specified  in different  categories by the relevant clause, is to  provide accommodation   to  those  persons  who  were  without   any accommodation.   Since  that  object  is  implicit  in   the relevant provision, the definition must be construed in  the light  of  the  said implicit  assumption  of  the  relevant provision.   It is on this view that the impugned order  has been set aside by the High Court. It  may be conceded that prima facie the view taken  by  the High  Court appears to be attractive.  It does appear to  be reasonable that provisions of the kind contained in  Chapter III  would  normally  be  expected  to  assist  persons   of specified categories to obtain accommodation and that  would impliedly postulate that such persons have, no accommodation which  they  can  claim  their own.  If  the  words  of  the relevant  provision  are ambiguous, or if their  effect  can reasonably  be  said  to be a matter of  doubt,  it  may  be permissible to construe the said provisions in the light  of the assumption made by the High 976 Court.   But,  arc the words of the relevant  in  any  sense ambiguous, or is the effect of those words doubtful ? In our opinion,  the  answer  to these questions  must  be  in  the negative. Clause  23  (1)  refers  to the  persons  in  the  specified categories,  and  empowers  the D.C. to  make  an  order  of allotment in their favour.  There are no terms of limitation qualifying  the said persons and the scheme of the  relevant provisions   does  not  seems,  to  contemplate   any   such limitations It ’is significant that the said persons are not entitled  as  a matter of right to an  order  of  allotment. What  clause  23(1) does is to confer power on the  D.C.  to make  an order of allotment if he thought it  OX  expedient, fair  to  do so in a particular case. it is  only  where  an order  is made by the D.C. that an obligation is imposed  on

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the landlord to let the premises to the person named in  the order.   Having regard to the words used in  describing  the persons  "and  the  categories,  it  seems  plain  that  the provision  Contemplated  that a person belonging to  one  of those  categories may be entitled to claim its  benefit  ’on the  ground that accommodation already available to him  was patently  insufficient or unsuitable.’ When such a  plea  is made,  the D. C. may have to consider it Arid in  doing  so, "he  may  have  to examine the  contentions  raise  landlord against  such a plea as Well as the claim that the  landlord may make for his own personal occupation.  The enquiry which would  thus  become necessary would be in the  nature  of  a enquiry  and, the power conferred on’ the D.’C. may have  to be  exercised in a flair and just manner.  We do  not  think that  clause  23  (1)  as  well  as  clauses  24  and  24  A necessarily  exclude ’the cases 1 of person’s  specified  in them  on the grounds that the said persons already  have  an accommodation which they can call their own.  Persons  there specified  would  no  doubt have a  much  better  claim  for accommodation if is shown that they have no accommodation at all. But 977 even if such persons have accommodation, their claims cannot be  ruled out on the preliminary ground that the  very  fact that   they  have  accommodation  takes  them  out  of   the provisions of the respective clauses.  It is quite true that if  a person belonging Ca, to the specified  categories  has suitable and sufficient accommodation, he would normally not be  entitled  to claim the benefit of clause  23(1).   That, however,   is  a  matter  to  be  considered  by   the   Dy. Commissioner  on the merits.  We are,  therefore,  satisfied that  the  High  Court was in error  in  assuming  that  the provisions of clause 23(1) and clauses 24 and 24A  impliedly postulate  that  the  persons belonging  to  the  respective categories  specified by them can receive allotment only  if they  have  no previous accommodation of  their  own.   That being  so, we must hold that the appellant’s case cannot  be thrown   out  merely  on  the  ground  that  he  had   other accommodation by virtue of the fact that he was a partner in two concerns to which we have already referred. This  conclusion  cannot, however, finally  dispose  of  the appeal  before  us  because it seems to us  that  after  the remand  order  was passed by Mr. justice  Bhutt,  the  Addl. D.C. has not dealt with the matter in accordance with law as he  was required to do.  He appears to have taken  the  view that  since  a provisional order had  already  been  passed, there  was "no going back" upon it.  He thought  that  after remand,  the  scope  of  the enquiry  was  confined  to  the examination  of  the question as to whether  the  respondent proved  that he needed the premises for his own  occupation. It is true that he has incidentally mentioned the fact  that the appellant owned a -/4/- share in the business which  was carried  on in Nagpur, but he has added that the  said  fact does  not preclude him from obtaining a shop for starting  a business  exclusively  of his own.  This  observation  shows that  the Addl.  D.C. did not properly appreciate the  scope and effect of the 978 provision  contained  in  the  relevant  clause.    Besides, reading the order as a whole, it is quite clear that he took an unduly narrow view of the limits of the enquiry which  he was  bound to hold as a result of the remand order and  that has  vitiated  his final conclusion.  We,  therefore,  think that it is necessary that the matter should be sent back  to the Addl.  Dy.  Commissioner, Nagpur, with a direction  that

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he  should consider the case on the merits afresh.  We  wish to  make  it  clear  that the question  as  to  whether  the appellant  should  be  given allotment of  the  premises  in question  should  be determined by the Addl.  D. C.  in  the light of the position as it stood on July 15, 1955.  We  are making   this  observation  because  there  has  been   some controversy  before us as to whether the appellant has  lost his  right in the premises belonging to the  partnership  of which admittedly he was a member by reason of the fact  that the,  said partnership is alleged to have been dissolved  on April  8, 1957.  The learned Attorney-General has  contended that if the matter has to go back, the Addl.  D.C. should be free  to  consider  the subsequent events  that  have  taken place, and the appellant’s case should, therefore, be  dealt with  on the basis that he has no longer any shares  in  the said  partnerships.   We  are not inclined  to  accept  this contention.  The fact that the present proceedings have been protracted would not entitle the appellant to ask the  Addl. D.C.  to take subsequent events into account.  It  is  clear that  the  dissolution of the partnership  took  place  long after the appellant obtained the provisional allotment  from the  Addl.   D.C. and it is by no means clear  that  if  the Addl.   D.C.  had been then told that the  appellant  had  a place  of  business  of  his  own,  he  would  have  granted accommodation to him in the present premises on the same day that he moved him in that behalf.  We are satisfied that the question  about  the  propriety and  validity  of  the  said provisional  order must be judged in the light of the  facts as they obtained on that day.  979 Mr. Kherdekar for the respondents wanted to argue before  us that under cl. 2(2) the appellant was not a displaced person on that day and he has relied on the fact that the appellant had  been carrying on business in several places  in  India, since  1945.  This point has not been considered  either  by the  Addl.   D.C.  or the High Court.  If  so  advised,  the respondents  may take this point before the Addl.   D.C.-and we  have no doubt that if raised, it would be dealt with  by the Addl.  D.C. in accordance with law. The  result is, the appeal is allowed, the order  passed  by the  High  Court on the writ petition is set aside  and  the matter is remanded to the Addl.  Dy.  Commissioner,  Nagpur, with  a  direction  that he should  deal  with  the  dispute between  the parties afresh in accordance with  law.   Costs incurred  by the parties so far would be costs in the  final order which may be passed after remand.                       Appeal allowed. 980