MANSARAM v. S. P. PATHAK AND OTHERS

Citation: [1984] 1 S.C.R. 139

Court: Supreme Court of India

Bench: D.A. DESAI, R.B. MISRA

Case summary

It was further alleged that the former owner of the premises Shri Basantrai Sharma has died. It was further held that the appellant had occupied the premises when be was holding an office of profit under the Union of India and now that he has retired, he is not.

Judgment text

1M MANSARAM v. S. P. PATHAK: AND OTHERS September 29, 1983 [D. A. DESAI AND R. B. MISRA, JJ.! Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 Cls. 22, 23, and 25 Occupation ofpremises by Government servant under cl. 23(2) on an assurance from landlord-Conditions to be satisfied before he can be evicted for contravention ofcl. 22(2). /' I The appellant Who had taken the premises in·question on lease while he was serving as an employee of the . Telephone Department, continued to be iD possession of the same after his retirement in 1967. Respondent No. 1 who was allegedly in need of accommodation; filed an application before the House Allotment Officer praying for allotment of the said premises in his favour on the ground that the appellant had occupied the premises in contravention of cl. 22(2) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 and that respondent No.

4 who had inherited the premises from the original landlord was conspiring with the app_ellant by letting him continue to live in the premises. Respondent No. 4, after having Once appeared through advocate, withdrew from the proceedings. The appellant contended that he had not contravened any provision of the Rent Control Order as he had occupied the premises on the assurance given by the then landlord that the house was being permitted to be occupied in accordance with st 23(2) thereuf, that the deceased landlord who had tried to Obtain possession of the premises during his lifetime on the ground of bona- fide personal requirement had failed in the attempt and that he had been accepted as the tenant even after his retirement. · The House Allotment Officer rejected the contention and directed the appella:rit to deliver possession of the premises to respondent No.

4 holding that the appellan:t was liable to be evicted as the letting out of the premises to him by the landlord and his occupation of the same in 1954; were in contravention of cl. 22(1) (b) and cl. 22(2) respectively of the Rent Control Order and further, that having occupied the premises while holding an office t of profit under the Union of India the appellant was not entitled to continue to remain in occupation of the premises after his retirement from service. The High Court having dismissed in limine the Special Civil Application filed by him under Art. 227, the appellant apprqached this Court. Allowing the appeal , HELD: I. According to cl. 22(1) of the C. P. and Berar Letting ol Houses and Rent Control Order~ 1949, a landlord is under a statutory duty to intimate the Collector any existing or impending vacancy in the premises of Which he is the landlord. The object underlying the provision is"'- to make Stii>ii. EME COURT REPORTS [1984) i s.

f time, no one froIU class fo~ 146 . SUPREM& COURT REPORTS . (1984) 1 s. c. i\. whose benefit power is conferred on the Collector to allot vacant premises may be on the waiting list and therefore, sub-clause (2) of clause 23 permits the landlord to let out such premises in respect of which he has intimated a vacancy to any person if. within fifteen days from the date of intimation of vacancy to the Collector, an Ji. order of allotment is not served upon the landlord. As a sequel to "" the right to obtain allotment on the ground of being holder of office . of profit under Union· or State Government a corresponding obligation is cast upon such person to . vacate the premises as soon as he ceases to bold office or the post which enabled him to obtain the order ~f allotment. To give full eJfoct to these provisions, power is conferred on the Collector to take appropriate action to enforce provisions of clauses 22 to 27. • The application made by 1st respondent Shri S. P.

Pathak on - Detember 7, 1976 to the H use Allotment Officer complained of appellant not vacating the premises even thongli he has ceased to _ hold the office of profit. There was not the slightest complaint that • when the appellant entered the premises in 1954, either he did it under an order of allotment made by the Collector or. surreptitiously or in league with the then landlord Shri Basantrai Sharma or in violation of the mandatory requirement of Clause· 22. Yet the House Allotment Officer proceeded to enquire as to whether clause 22(1) (b) and· 22(i) were contravened when the appellant entered the premises in 1954• .. The first question that should engage our attention is whether the House Allotment Officer wasright in holding that there• was any contravention of clauses 22(-1) (b) and 22(2) of the Rent Control Order at the time when appellant entered the premises· In 1954. It_. - • is necessary to focus attention on the contention of the appellant in this behalf.

He contended in the written statement that he entered the · premises on an assurance from the landlord that the premises were being permitted to be occupied in accordance with . sub-clause (2) of clause 23, which permits the landlord to let out the premises to whomsoever he considers proper if he has not received an allotment order from the Collector. within fifteen days from the date of the receipt of the intimation of vacancy under clause 22. No record was produced by. the. applicant before the House Allot· ment Officer whether Shri Basantrai Sharma, who was then the , landlord and the owner of the house intimated to the Collector that a portion of the house which was then in his occupation was in· t~n4ed (o be le\ o\lt. if! iere is iio\ one wor . _I'ArHAK(besai, i. ) i49 There is a still further infirmity in the older of t)le House Allotment Officer. Admittedly, the appellant enterad the premises in 1954.

He was then serving in the telephone department which · would permit an inference to be drawn that he was holding an office of profit in the Union oflndia. But in order· to attract clause 25 of the Rent Control Order which obligates such holder of the office of profit tova9ate the premises on his ceasing to hold the office of profit, it must be shown that . he entered the premises under an order of allotment made by the Collector either under clause 23 or clause I 24A. Existence of an order of allotment under clause 23 or clause • 24A in favour of a person· holding an office of profit nuder the • • Union of India or the State Government is a· sine qua non before the obligation under clause 25 can be fastened upon him to vacate the premises on ceasing to hold the office of profit which enabled him to get an order of allotment in his favour.

In the absence of an allotment order, it is not open to the House Allotment Officer to draw an inference that the premise; wen; allotted ·to the appellant because he was holding an office of profit. If there is no order or' allotment issued to the appellant on the ground that he is holding an office of profit, the House Allotment Officr had no jurisdiction to cali upon him to vacate the premises on the short ground that he has ceased to hold the office of profit. The House Allotment Officer has in terms held that as the appellant has retired in 1967, and therefore lie is not entitled to continue to. occupy the prem. ises. This line of - reasoning proceeds on the assumption that there was initially an ' order of allotment in favour of the appellant on the grou\ld that he was holding an office·of profit, the assumption being not borne out by the facts.

In the absence of an allotment order, the House Allot" meat Officer has no jurisdiction to call upon the appellant to vacate ·tl;te premises on the short ground that he . has ceased to hold the office of profit. What is. stated hereinbefore is sufficient to ·quash a~d. set aside the order of the House Allbtment Officer. However, there is one more aspect of the matter which we cannot overlook. The appeliant enterd the premises in 1954. There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the pre. mises in contravention of clause 22(2), . Till Basantrai Sharma died, no one raised the controversy about t! ie entry of the appellant in the premises as being ,unauthorised or in contravention of clause 22. Basantrai Sharma in his life time tried to ' I . / Ho stiPR. EMii cotrl!. f REPORTS (19841 l s. c.

ft obtain possession of the premises from the appellant alleging grounds availabie to him under the Rent Control Order other than . -unauthorised entry. This would permit an inference that Basantrai · Sharma accepted the appellant as his tenant and bis tenancy did . 1 not suffer from any infirmity. After Basantrai Sharma died, her successor in interest one Smt. Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr. S. P. Pathak, a total stranger has c0me forward to complain . about the unauthorised entry of the appellant in the premises, The unauthorised entry according to the appellant was in the year J954. Appellant retired in 1967. Basantrai Sharma was alive in 1967. Ifappellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the samething.

Rent was accepted without question from the appellant by Basantrai Sharma till bis death and thereafter. ' Could he be at this distance of time, thrown out on the ground that bis initial entry . was unauthorised. To slightly differently formulate ·the proposition, could ·the initial unauthorised entry, if there be any, permit a House Allotment Officer, 22 years after the. entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2) ? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Colloeter therefore, comes across information that there is a . cmitravention, he is clothed with adequate power to set right the contravention by ejecting anyone ·who comes into the _premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner.

Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a ·landlord to some extent in pari delicto could turn the tab\es against the person ,. w]).. o was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unai;ihorised . entry and that failure to vacate premises till 9 years after retirement was not proper' yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which· be has done. In such a situation, it would be open to· him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal MANSARAM v. S. P. MtHAK (besai, J. ) IS! .. 1 1 ' and Ant. v. State of U. P. & Ors.

( ) wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by sec. 7(2) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to 'the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it . is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the °purpose of securing compliance with the Rent Control Order.

But as stated earlier, where power is ·conferred to effectuate a purpose, it has to be exercised in a reason· able manner and the reasonable exercises of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available 1 in State ofGujarat v. Patel Raghav Natha & Ors. ( ) In that case Commissioner exercised suo motu revisional jurisdiction under sec. 211 \. of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The • Commissioner exercised revisional jurisdiction one year after the Collector made the -order which was. sought to be revised. The High Court set aside the order of the·Commissioncr.

In the· appe'al by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held io be too late. This aspect must be present to the mind of House Allotment Officer bef~re just rushiQ. g in on an unproved technical contraventiol) brought to his notice contrived by the successor in interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 ·was in contravention of clause 22(2). Having exarnined all the aspects of the ·matter, we are. satisfied that the order of the House Allotment ·officer suffers from numerous · (I) [19751 IS. CR. 575. (2) [1970) I S. C. R. 33S. '· 1S2 SUPR~MB cOURT RBPORTs (1984) i s. c. \. \.

infirmities· and is unsustainable and must be quashed and set aside as also the order of the High Court dismissing the Special Civil Application No. 1957of1977 preferred by the present appellant. Accordingly this appeal succeeds and is allowed and the application made by the · .. first respondent to'the House Allotment Officer is:dismissed with no order as to costs throughout: ' B H. L. C. Appeal allowed. . , -. · '