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PETITIONER: MADHU GOPAL

       Vs.

RESPONDENT: VI ADDITIONAL DISTRICT JUDGE & ORS.

DATE OF JUDGMENT26/09/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1989 AIR  155            1988 SCR  Supl. (3) 276  1988 SCC  (4) 644        JT 1988 (4)   106  1988 SCALE  (2)1273

ACT:     U.P.  Urban Buildings (Regulation of Letting,  Rent  and Eviction)  Act  1972/U.P.  Urban  Buildings  (Regulation  of Letting,   Rent   and   Eviction)   Rules,   1972.   Section 16(5)(a)/Rule 10(9)--Review of order of release/Allotment--A landlord  even though not in actual possession can  ask  for review of the order.

HEADNOTE:     The  petitioner  in the Special Leave  Petition  is  the tenant,  Respondent No. 3 was one of the five  co-owners  of the petition premises.     On  January 28, 1978, one of the co-owners who had  sole possession of the shop vacated the shop and sent  intimation of  the vacancy to the Rent Controller under the U.P.  Urban Buildings  (Regulation of Letting and Eviction)  Act,  1972. The petitioner filed allotment application for the said shop and he was the sole applicant.     The  Rent  Control Officer directed  the  petitioner  to appear  in  the allotment proceedings, called for  a  report from  the  Inspector, found one of the co-owners  to  he  in possession  of  the shop and that he  had  discontinued  the business and was going to let out the shop. The 3 other  co- owners  never  objected to the petitioner’s tenancy  on  the allotment order. The allotment letter was accordingly passed on  12th February.1978, and possession was taken up  by  the petitioner thereafter.     On  or about 25th February, 1978 the 3rd respondent  who was a non-occupant owner filed an application under  section 16(5) of the Act        i.e. after 25 days of the allotment, for  review  of the order. The Rent Controller  allowed  the review application and cancelled the allotment order.     The  Additional  District  Judge  having  dismissed  the revision  petition, the petitioner filed a writ petition  in the High Court.    The  question  about the maintainability  of  the  review application  under section 16(5) of the Act at the  instance                                                   PG NO 276                                                   PG NO 277 of  a  non-occupant  owner  having  arisen  the  matter  was referred  to a Full Bench and by a majority, the Bench  came

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to the conclusion that such an application was maintainable.     Dismissing the Special Leave Petition,     HELD:   1.  A  landlord,  even  though  not  in   actual possession  at the time of the possession of  the  property, can  ask  for review of the order of release  or  allotment. [280G]     2.  A landlord has a right to the property. The  section should  not  be  so  construed as to  defeat  the  right  to possession  of  property  in appropriate  cases  unless  the intention of the Legislature is manifest. [280F]     3. Section 16(5)(a) speaks of ’where the landlord or any other   person’.  Hence,  two  categories  of  persons   are contemplated i.e. a land-lord, or any other person. [280C]     4.  The requirement of the sub-section, to be in  lawful occupation of the building or any part thereof, applies only in  case  of  any  other person claiming  to  be  in  lawful occupation and not in case of landlord. The Section has used the   expression  "or"  and  so  the  expression   "or"   is disjunctive   of   these  two  categories  to   be   treated separately.   Hence,  the  requirement  to  be   in   lawful occupation,  is not there is case of an application  by  the landlord. [280C-D]     5.  The proviso puts an embargo of 7 days in making  the application for review. It can only apply to those who  were in  lawful  occupation  at the time of  the  making  of  the original  Order.  It  cannot  curtail  the  rights  of   the landlord. as such, it only affects any other person who  was in lawful occupation. [280E-G]     Niren  Kumar Das v. 7he District Judge, Pilibhit &  Ors. AIR 1977 Allahabad 47, approved.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 6577 of 1988.     From the Judgment and order dated 27.4.1988 of the  High Court of Allahabad in C.M.W. No. 3777 of 1987.     G.L. Sanghi and Manoj Prasad for the Petitioner.                                                   PG NO 278     The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI, J. This application for  leave  to appeal under Article 136 of the Constitution arises from the judgment  and  order of the High Court of  Allahabad,  dated 27th  April,  1988  by  the  judgment  under  challenge  the Division   Bench  by  majority  directed  the   Addl.   City Magistrate or the Officer at present exercising the power of Distt.  Magistrate  under  Rule  10(9)  of  the  U.P.  Urban Buildings  (Regulation  of Letting, Rent &  Eviction)  Rules 1972 to issue notice on all the five landlords mentioned  in the petition within one week of the filing of the  certified copy  of  the  Order, and thereafter to  make  an  Order  in accordance  with  law and in the light of  the  observations made  in the said Judgment. The petitioner before  the  High Court,  who is the petitioner herein also, was directed  not to be dispossessed until disposal of the matter by the  High Court.     This  application  is  by  the  tenant-petitioner.   The premises  in  question had five co-owners,  namely,  Veeresh Saxena,  R.C.  Saxena. D.C. Saxena, Smt. Shanti  Saxena  and B.S. Saxena, respondent No. 3. Until January, 1978,  Veeresh Saxena was in sole and exclusive actual physical  possession of the shop and carried on business in it. In January,  1978 the  present petitioner filed allotment application for  the shop  and he was the sole applicant. On  28.1.1978,  Veeresh

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Saxena  vacated the shop and sent intimation of  vacancy  to the  Rent  Control Officer under the  U.P.  Urban  Buildings (Regulation  of Letting & Eviction) Act,  1972  (hereinafter called  the Act). The Rent Control Officer,  then,  directed him  to  appear in the allotment proceedings  The  Inspector reported  that Veeresh Saxena was found to be in  possession of the shop, discontinuing the business and was going to let out the shop. On the Inspector’s report being pasted on  the Notice  Board  of the Rent Controller Office,  neither  B.S. Saxena  nor  the  other 3  co-owners  filed  any  objection. Veeresh  Saxena filed an affidavit before the  Rent  Control Officer  that  he  wanted  to  let  out  the  shop  to   the petitioner.  The  3 other co-owners never  objected  to  the petitioner‘s  tenancy on the allotment order throughout  the last  10 years. The allotment letter was accordingly  passed on  12th  February, 1978.  The possession  was,  thereafter, taken  up, it was alleged by the petitioner in  the  special leave  petition.  The  petitioner had alleged  that  he  had invested more than Rs.2 lakhs in the shop, but B.S.  Saxena. who  was  a non-occupant owner, on or about  25th  February, 1978  filed an application under section 16(5) of  the  Act, after 25 days of allotment, for review of the Order. It  was alleged   by   the   petitioner  that   the   evidence   was overwhelmingly  in  support of the fact that  he  had  taken                                                   PG NO 279 possession of the premises on or about 4/5th February, 1978. The  Rent  Controller, however, on the said  application  of B.S. Saxena allowed the review application and cancelled the allotment order.  revision against the said order was  filed before  the learned Judge under section 18 of the  Act.  The learned  Addl.  Distt.  Judge dismissed  the  revision.  The petitioner,  thereafter, filed a writ petition in  the  High Court of Allahabad .     The  question  arose about the  maintainability  of  the review  application  under section 16(5) of the Act.  It  is upon this point that the matter has been agitated before us. There was a difference of opinion about the  maintainability of the review application at the instance of a  non-occupant owner  and the matter was referred to a Bench of  3  learned Judges  and  by  majority the Division  Bench  came  to  the conclusion  that such an application was  maintainable.  The petitioner herein contends that the High Court was wrong  in the view it took on the construction of Section 16(5)(b)  of the Act.     The relevant provisions of the said sub-section read  as follow:     "(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-section (I), the District Magistrate may review  the order:     Provided 1hat 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) x x x     (7) Every order under this section shall subJect to  any order made under sec. 18 be final."

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                                                 PG NO 280     The contention is that a landlord who was not in  actual physical  possession until making of the allotment order  or is evicted in pursuant thereof, is not competent to make  an application  for  review of the allotment order  or  release order  under section 16(5)(a) & (b) of the Act.  Admittedly, as mentioned hereinbefore, the respondent applicant was  not in  occupation  when the Order was made.  He  was,  however, indisputably a landlord. So, the question is whether on  the construction of the section, a landlord who Is not in actual physical  possession  at the time of the release  order,  is entitled under the law to apply for review of the order. The High Court held that he is entitled.     We  are  of the opinion that the High Court  was  right. Section 16(5)(a) speaks of ’where the landlord or any  other person’.   Hence,there   are  two  categories   of   persons contemplated  i.e.  a  landlord, or any  other  person.  The requirement  of sub-section, to be in lawful  occupation  of the  building or any part thereof, applies Only in  case  of Lany other person claiming to be in lawful occupation and not in  case of landlord. The Section has used the expression  ’ or"  and  so the expression or is disjunctive of  these  two categories to be treated separately. Hence, the  requirement to  be  in  lawful occupation. is not there in  case  of  an application by the landlord.     Mr.  G.L.  Sanghi,  learned counsel  appearing  for  the tenant, has sought to argue that by virtue of the proviso  a landlord  who  was not in occupation, was  not  entitled  to apply.  We  are unable to accept this. The proviso  puts  an embargo  of 7 days in making the application for review.  It can only apply to those who were in lawful occuaption at the time of the making of the original Order. It cannot  curtail the  rights  of the landlord, as such, it only  affects  any other person who was lawful occupation. In any event, it  is a well-settled principle of construction that unless clearly indicated, a proviso would not away substantive rights given by  the Section or the sub-section. A land lord has a  right to  the property. The Section should not be construed as  to defeat  the right to possession of property  in  appropriate cases unless the intention of the Legislature is manifest We find no such clear intention in the facts of this case.     We  are, therefore,. of the opinion that the High  Court came to the correct conclusion that a landlord, even  though not  in  actual  physical  possession at  the  time  of  the possession of the property. call ask for review of the order of release or allotment. It must be borne in mind that  this view  was  also expressed by Mr. Justice  N.D.Ojha,  as  our learned brother then was, in his judgment in Niren Kumar Das v.  The District Judge, Pilibhit & Ors., AIR 1977  Allahabad                                                   PG NO 281 47. We agree with that interpretation.     In that view of the matter, there is no substance in the contentions   urged  in  the  specil  leave  petition.   The application is, therefore,rejected. N.V.K.                                   Petition dismissed.