R K KHANDELWAL Vs. MOTI LAL CHAWLA

JUDGEMENT

(1.) This is an appeal from a judgment of our brother Dwivedi quashing by certiorari an order passed by a commissioner under Section 7-A (4) of the U.P. (temporary) Control of Rent and Eviction Act on 6-1-1961 and an order passedly a District Magistrate on 25-1-1961 in compliance with it. The facts are as follows. The accommodation in dispute was allotted by the District Magistrate on 10-12-1955 to one B. K. singh, who was an inspector in his own office. The Inspector was subsequently transferred to Sitapur and he managed to get the accommodation allottee on 21-5-1956 jointly in his and respondent no. 1 Moti Lal Chawla's names. Tnere was nothing in common between the Inspector and Moti Lal Chawla and they did not form any partnership or any other association of persons which could be recognised as one juristic entity. It is clear that the Inspector misusing his position as such got the accommodation allotted jointly in his and Moti Lal Chaawla's names. He did not need the accommodation after his transfer to Sitapur but wanted to retain some control. The respondent 'Moti Lal Cbawla also did not need any accommoda-tion because admittedly he lives in another mohalla Khyall Ganj. it is regrettable that the District Magistrate passed such a improper alloment order and it shows how provisions of the Rent Control Act are misused by District Magistrates. On 18-7-1958 the appellant applied to the District magistrate for allotment of the accommodation in his name alleging that it was vacant and that neither the inspector nor Moti Lal Chawla was living in it. While this application was pending Moti Lal Chawla and respondent No. 2 Vishnu Naram Rastogi entered into some sort of a partnership on 5-8-1958 for running a cnemist's business. On 11-10-1958 the District Magistrate allotted the accommodation to the appellant and on 24-10-1958 the two respondents objected to the allotment order on the ground that they had entered into a partnership to run a chemists business in the accommodation. The Act has no provision for such an objection and the District Magistrate dismissed it. Then the District Magistrate issued a notice under Section 7-A(1) of the Act to the respondents on 26-11-1959 calling upon them to vacate the accommodation. Moti Lal Chawla filed an objection against the notice repeating what he had said in his objection dated 24-10-1958. The District Magistrate on 7-4-1960 after hearing the objection not only withdrew the notice issued by him under Section 7A (1) but also cancelled the allotment order dated 11-10-1958. He presumably acted under the proviso to Section 7A (1). The appellant applied to the Commissioner to revise the order under Section 7A (4) and the Commissiciner on 6-1-1961 set it aside on the view that the partnership alleged by the respondents was a begus partnership set up as a cloak for getting possession over the accommodation and directed the District Magistrate to proceed under Section 7A to get the accommodation vacated by the respondents. This is one of the orders that has been quashed by our learned brother. The respondents applied to the State Government to revise it put in vain. In compliance with it the District Magistrate on 25-1-1961 passed the other order that has been quashed, vacating his earlier order and on 17-8-1961 issued a notice under Section 7A (2) calling upon the respondents to vacate the accommodation by the next day. Thereupon the respondents applied for certiorari and this Court stayed forcible eviction of that respondents during the hearing of the petition. After hearing it our learned brother allowed it on the ground that the Commissioner had no jurisdiction to pass the impugned order of 6-1-1961 because IT was held in Ram Sarup v. Shihhar Chand, 1960 ALL LJ 810 : (AIR 1961 All 221) (FB) that the words has wrongly refused to act" in Section 7A (4) are redundant and meaningless and that a Commissioner has jurisdiction to revise an order passed by a District Magistrate only If the Disrict Magistrate had acted illegally or with material Irregularity and the District Magistrate here had not acted Illegally or with material irregularity when passing the order of 7-4-1960. He also felt dobutful about the correctness of the Commissioner's decision that the partnership set up by the respondents was a sham (one).

(2.) Under Section 7 (2) a District Magistrate may, by general or special order require a landlord to let or not to let any person any accommodation which is or has fallen vacant or is about to fail vacant and no tenant call sublet any portion of an accommodation in his reliancy except with the permission in writing of the landlord and and of the District Magistrate previously obtained. Sub-section (1) of Section 7A is to the effect that where an order to let out an accommodation has been duly passed under Section 7(2) and the District Magistrate has reason to believe that any person has in contravention of it occupied the accommodation he may call upon him to show cause within a certain time why he should not be evicted from it provided that he should not pass such an order it he is satisfied that there has been undue delay or that it is otherwise inexpedient to do so. Sub-section (2) is to the effect that if the person fails to appear in reply to the notice issued under Sub-section (1) or appears out fails to satisfy the District Magistrate that the order under Section 7 (2) was not duly passed and that he is entitled to remain in occupation, the District Magistrate may direct him to vacate within a certain time. If the person does not comply with the order the District Magistrate may evict him forcibly. Sub-section (4) provides that no appeal shall lie from an order passed by a District Magistrate under this section but "the Commissioner may revise the said order if he is satisfied that the District Magistrate has acted illegally or with material irregularity or has wrongly refused to act and may make such order as he thinks fit". Under this provision only an order passed by a District Magistrate can be revised by the Commissioner that he acted illegally or that he acted with material irregularity or that he wrongly refused to act are only the grounds justifying the revision. The orders contemplated by Section 7A, and which can be revised under this provision, are, (1) calling upon a person in occupation to show cause why he should not be evicted (an order referred to in Sub-section (1)), (2) an order directing him to vacate the premises after hearing, him or on his failure to appear (an order referred to in Sub-section (2)) and (3) an order discharging the notice or refusing to call upon the person to vacate the premises under Sub-section (2) (an implied-order under Sub-section (2)). The last is an order retusing to act. He may wrongly refuse to pass an order contemplated by Sub-section (2) and if he writes out an order refusing to pass it, it can be said to be an order refusing to act, one can also say that if on being approached a District Magistrate refuses to pass an order contemplated by Sub-section (1), it is an order refusing to act. If an application is made to him he has to pass an order and if he refuses to issue a notice or to direct the person to vacate the premises in writing, it is an order retusing to act within the meaning of Sub-section (4).

(3.) 1960 All LJ 810: (AIR 1961 All 221) (FB) (Supra) was a case dealing with a District Magistrate's refusal to grant permission to a landlord to file a suit for ejectment of his tenant. The order was set aside by the Commissioner on revision and the validity of his order was questioned before Mootham, c. J. and Beg and Dhavan, JJ. Section 3 (1) forbids a suit being filed without the permission of the District Magistrate and does not deal with any application or order to be passed thereon by the District Magistrate. Sub-sec. (2) is to the errect that a party aggrieved "by the order of the District Magistrate granting or refusing to grant the permission may apply to the Commissioner to revise the order, Sub-section (3) dealing with the Commissioner's powers as it then stood, laid down that If he was satisfied that the District Magistrate had acted illegally or with material irregularity or has wrongfully refused to act" he could confirm or set aside the District Magistrate's order. Mootham, C. J. field that the District Magistrate in the case had acted by making a specific order refusing permission to the landlord and had difficulty in construing the words "wrongfully refused to act" as meaning or including the making of an order refusing to grant permission. According to him "refused to act" means that the district Magistrate refused to take any action on an application for permission. His conclusion that the words have no meaning in law was restricted to the words as used in Section 3 (3), and the same cannot be said about the words used in a different context in Section 7-A (4). One of the reasons given by the learned Chief Justice for this interpretation was that Section 3 (2) itself provided for an application for revision from an order granting or refusing to grant permission; therefore, refusing to act meant something different from refusing to grant permission. that argument is not available in respect of Section 7-A (4) because there is no right of applying for revision expressly granted against an order retusmg to call upon me person in occupation to show cause or to vacate, and Sub-section (4) could contemplate unjustified inaction on the part of a District Magistrate. Moreover in Section 3 (2) the words "has wrongfully refused to act" had to be read with reference to an order granting or refusing to grant the permission: whereas in Section 7-A (4) they are to be read with "any order passed by the District Magistrate" and while the former set of words may not be said to include refusal to act, the latter may. Sub-section (3) of Section 7-A provides for acting by a District Magistrate in the event of the accommodation not being vacated within the time allowed; it provides for his using force to evict, or caused to be evicted, the person in occupation and for putting the person, entitled under Section 7 (2), in occupation. It seems to us that not only refusal to act in this manner but also refusal to pass either of the orders mentioned in Sub-sections (1) and (2) is refusal to act within the meaning of Sub-section (4) and the decision in Ram Sarup's case does not govern the instant case. Chaube Jagadish Prasad v. Ganga Prasad, AIR 1959 SC 492 was unnecessarily referred to at the bar; it does not at al! deal with the question under consideration. Revisional power under Section 115, C. P. C., is quite different from the revisional power of a Commissioner under Section 7-A (4); the words "has wrongly refused to act" do not occur in Section 115, C. P. C.