INDERDEO SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE petitioner originally filed a writ petition no. 1220 of 1974 against the same opposite parties in respect of the matter in controversy. It was dismissed by a Division Bench consisting of K. B. Srivastava, and D. N. Jha, JJ. on October 1, 1974. This decision was given after hearing the petitioner and the contesting opposite party-Anand Prasad Vaish. It appears from that order that after the Bench had heard the writ petition, the petitioner filed an application for amendment of the writ petition alleging that there had been a change in the factual situation. THE Bench, however, did not think it fit to pjrmit the amendment to be made as the application had been presented at a time when they were about to dictate their order. THEir Lordships, however, observed that the petitioner would be at liberty to file a separate writ petition challenging the eviction order. THEreupon the petitioner filed a petition for review of the order dated October 1, 1974, and also filed a fresh Writ Petition No. 1405 of 1974. Both, the review petition and the fresh writ petition, have been heard together and may be conveniently disposed of by a common judgment. THE reference hereinafter to the various documents shall be made from the file of writ petition No, 1405 of 1974. THE relevant facts are that Anand Prasad Vaish owns two houses, namely, 494/82 and 498/70. He had been living in 494/82 which is the bigger house, from before, while no. 498/70, which consists of shops on the ground-floor and a residential portion on the first floor, was in the occupation of some tenants. THE residential portion in the first floor of house no. 498/70 was got released by the owuer in 1968. THE release order was presumably passed under Rule 6 of.the Rules made under the U. P. (Temporary Control of Rent and Eviction Act, 1947 (U. P. Act III of 1947) which was then in force. While that Act was still in force, the petitioner applied for allotment of that portion. THE Rent Control and Eviction Officer passed an order of allotment in his favour on 1-6-1972 after holding the house to be vacant. Against this order, the owner preferred a revision to the State Government under section 7-F of that (hereinafter referred to as the old Act). While this revision was still pending the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act ? 1972 (U. P. Act Xllfof 1972) came ipto force on 15th July, 1972 (hereinafter referred to as the New Act). THE life of the old Act, which was a temporary Act, was to expire on 30th September, 1972. Accordingly, the new Act specifically repealed it as the life of the old Act hud not expired when the new act came into force. Section 43 of the new Act deals with the repeal and savings. Sub-section (1) of this section repeals the old Act and sub-section (2) makes detailed provisions in respect of proceedings pending under the old Act. Clouse (p) of this section, so far as relevant, read as follows: "(2) Notwithstanding such repeal- (p) any revision under section 7-F of the old Act pending immediately before the commencement of this Act before the State Government against an order under sub-section (2) of section 7 of the old Act 'shall stand transferred to the District Judge, and his decision shall be final." Before, however, this revision could be transferred to the District Judge, clause (p) was amended by section 8 (v) (c) of U. P. Act 37 of 1972. THE words "shall stand transferred to the District Judge, and his decision shall be final" were substituted with retrospective effect by the words "shall be dis posed of by the State Government and its decision shall be final". This Act 37 of 1972 came into force on 16th September, 1972, and it provided that the said words shall be substituted and be deemed always to have been substituted. Accordingly, the State Government did not transfer the revision to the District Judge and decided it itself. It gave notice to the petitioner, and in response thereto, the petitioner filed a reply against the revision preferred by the owner. After considering the revision and the reply, but without giving any opportunity of oral hearing, the State Government decided the case. It allowed the revision and held that as the accommodation had been released in favour of the owner, the question of its allotment to the petitioner did not arise. As such, the allotment order was set aside. This order is dated 6th September, 1974, (annexure 11 to the writ petition). On 25th September, the owner made an application purporting to be under "section 18 (2) read with section 43 (2) (q), (t)" of the new Act to the Officer exercising the powers of the District Magistrate for restoration of possession. This is annexure 12. Section 18 (2) as it then stood corresponds to revised section 18 (3). On 27th September, 1974, the petitioner applied to that authority for time to file a writ petition. On 28th September, an order was passed against him by the Rent Control Authority for ejectment of the petitioner. This is Annexure 15. An order was addressed to the officer incharge of the police station for execution thereof, vide annexure 16. THEreafter, the first of the two writ petitions was filed which, as noted earlier, was dismissed on 1st October, 1974. Learned counsel for the petitioner, Sri Jagdish Kumar, has raised several new points which were not raised on behalf of the petitioner before the Bench which decided writ petition No. 1220 of 1974 apart from reiterating his earlier contentions. THEy may be dealt with seriatim. It is contended that U. P. Act III of 1947, under section 7-F of which the revision was decided by the State Government, had lapsed and was not in existence at the time the revision was "filed. This was a temporary Act which was extended from time to time by various legislative amendments. It appears that on one occasion the life of the Act was to expire on 31st March, 1970, and U. P. Act XVI of 1970 which provided for continuance of that Act for a further period of one year, received the assent of the President on April 7, 1970, and was published in the U. P. Gazette (Extraordinary) dated April 8, 1970. On this basis, it has been asserted that the continuity of the Act was broken. This argument loses sight of the Uttar Pradesh Laws (Expiration) Act, 1950 (U.P. Act No. XXVIll of 1950), section 3 of which so far as material, provided: "Which any Bill shall be introduced in any session of the State Legis lature, for the continuance of any Act which would expire in such session, and such Act shall have expired before the bill for continuing the same shall have received the assent of the President or the Governor, as may be necessary, such continuing Act shall be deemed and taken to have effect from the date of the expiration of the Act intended to be continued, as fully and effectually, to all intents and purposes, as if such continuing Act had actually passed before the expiration of such Act." THE only exception is that penal provisions shall not be deemed to have retrospective effect. This exception is, of course, consequential to Article 20(1) of the Constitution. This Act has since been replaced by the U.P. Laws (Expiration) Act, 1974, (U P. Act No. XXXI of 1974) which makes substantially similar provision, THE changes made by the new Act are not material to the present petition. In view of the provisions of the U. P. Act No. XXVIll of 1950 the contention of the learned counsel cannot be accepted. It has then been urged that under section 43 (2) (p) of U. P. Act XIII of 1972. THE State Government should first have transferred the revision to the District Judge and after the amendment of this clause by U. P. Act 37 of 1972, the revision should have been retransferred to the State Government, and that this having not been done, the revision was not competent. This argument has also no force in view of the fact that U.P. Act 37 of 1972 amended the said clause (p) with retrospective effect. As the amendment laid down that the words substituted thereby shall be deemed always to have been substituted, it follows that the original words", shall stand transferred to the District Judge" are to be deemed as never having been enacted. Learned counsel has next challenged the vires of the aforesaid section 7-F. It has been contended that this section conferred unguided power on the State Government and, as such, it should be held violative of Article 14 of the Constitution. Reliance has been placed on the observations of the Supreme Court in Parbhawati v. Pritam Kaur,( A. I. R. 1972 S. C. 1910) in which their Lordships criticised this provision and also the conduct of the State Government in the particular case in regard to the manner of the disposal of the revision. THEir Lordships, however, added vide paragraph 9 of the report: "THE validity of that power cannot be and was not challenged in these proceedings. Hence we shall not go into it." THE power was found to be misused in the particular case and the State Government was directed to dispose of the revision afresh within a time limit specified by the Supreme Court. It is obvious that the State Legislature has taken account of this criticism made by the Supreme Court while passing U. P. Act XIII of 1972. THE relevant power has now been conferred on District Judges. Only during the transitory period the power of the State Government continued presumably on -good administrative grounds. Although the section does not lay down the limits of the exercise of the power, the very fact that the power has been held to be a quasi-judicial power, leads to the necessary inference that the power has to be exercised in a judicial manner and in accordance with the principles of natural justice. THEre are numerous modern enactments in which such quasi-judicial powers have beea conferred on executive authorities. THE exercise of such powers is controlled by the High Court under Article 226 of the Constitution and also by the Supreme Court. THE principles of natural justice have been laid down by these courts and are now well settled. Thus, the scope for abuse of this power has been circumscribed. THE validity of this provision could not be successfully challenged throughout the period the provision was in iorce, and it is now too late in the day to suggest that the provision itself is ultra vires. Having regard to the quasi judicial nature of the power and the premise that quasi judicial power is required to be exercised reasonably and fairly according to the facts and circumstances of each case, we are unable to agree with the learned cousel for the petitioner in regard to his contention that the provision violates the guarantee of equality contained in Article 14 of the Constitution. It was also contended that although the petitioner was not given an oral hearing, the opposite party landlord must, it should be presumed, have been given an oral hearing. It is contended that annexure 17 to the petition, which is an application made by the landlord to the Food Minister on 28th June, 1974, has asked for a personal hearing. From this the learned counsel has argued that personal hearing must have been given. No such inference can be drawn. Every day hundreds of petitions are given to Ministers and it cannot be presumed that the prayers in all those petitions are invariably accepted. It has also been argued that even if the landlord was not given an oral hearing, then too the petitioner should have been given an oral hearing. This contention also cannot be accepted either. Oral hearing is not a necessary part of the principles of natural justice. THE petitioner did have an oppor tunity of making his written submissions. Moreover, he has not disputed the averments in the counter-affidavit that the house in question had been released in favour of the landlord in 1968. Such a release order could only have been passed under Rule 6 of the Control of Rent and Eviction Rules, 1949. This rule was as follows: "(6) When the District Magistrate Is satisfied that an accommodation, which has fallen vacant or is likely to fall vacant, is bona fide needed by the landlord for his own personal occupation, the District Magistrate may permit the landlord to occupy himself." Such an order would amount to an order under section 7 (2) which was as follows: (2) THE District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant." It has not been contended that after the release order the landlord let out the house to any third person THE mere fact that he did not start actually using that house immediately after the release order cannot amount to a fresh vacancy entitling the District Magistrate to pass a fresh allotment order, in other words, an order requiring the landlord to let it to some one else. Thus, the order of allotment passed in favour of the petitioner was clearly without jurisdiction and a nullity. It has not been shown as to what possibly the petitioner could have represented to the State Government in support of the allotment order in his favour if he had been given an oral hearing. Where the facts are clear, even denial of opportunity does not necessarily vitiate a quasi-judicial order. In the instant case, due opportunity was given, and only oral hearin; was not granted. No prejudice having been caused by not giving to the petitioner an oral haring, the order passed in revision cannot be assailed on this ground. It has then been argued that under section 43 (2) (t) of the U. P. Act XIII of 1972, any decision of the State Government under clause (p) could te enforced, whenever necessary, in like manner as if it were an order of the competent authority under the corresponding provisions of this Act. THE petitioner's contention is that there was no corresponding authority under this Act for enforcing the State Government's order allowing the revision. If the District Magistrate passed an order, which was found to be null and void and was set aside in revision, it was incumbent on the District Magistrate to restore the status quo ante as provided in sub-section (2), now sub-section (3) of section 18, it is well settled that no man will suffer on account of the mistake of any Court or Tribunal. If an injustice was done to the landlord, the District Magistrate not only had the inherent power but the duty to relieve him of that injustice. In G. D. Chandola v. District Magistrate (1977 (3) A. L. R. 554) a Division Bench of this Court has held that statutory authority has implied ancillary power to restore the status quo if the position had been altered due to its illegal order. In that case also it was held that possession can ba restored to the landlord after evicting the allottee. Apart from this general principle the expression "corresponding authority" has to be given a reasonable meaning. Under the new Aet both section 16 (5) (b) and section 18 (3) give authority to the District Magistrate to restore possession to the landlord if he has been evicted in pursuance of an allotment order which is subsequently set aside. Hence there should be difficulty in holding that the corresponding'authority under this Act is the District Magistrate, He has expressly been given power to use such fprce as may be necessary. He also has the inherent power to take police help forgetting his order executed. THE contention of learned counsel for the petitioner that the petitioner was denied an opportunity of showing cause under the proviso to section 7-A (1) of the old Act is without any substance. That proviso is not meant to apply to a case like the present one where the unauthorised occupation came into being because of an illegal order of the District Magistrate and such illegal order is set aside on revision. THE District Magistrate cannot give to an unauthorised occupant the benefit of this proviso so as to indirectly nullify the order passed in revision. THE only other ground pressed by learned counsel for the petitioner is that the power under section 7-F was conferred on the State Government and it was not open to the Minister to decide the revision. THE impugned order has been expressed to be passed in the name of the Governor. Article 166(2) of the Constitution lays down that an order so authenticated shall not he called in question on the ground that it is not an order made by the Governor. In a parliamentary democracy it is the Ministers on whose advice the Governor normally acts in so far as day to day administration is concerned and it is not required that the Governor should personally dispose of individual cases, vide Samiher fingh v. State of Punjab.( A. I. R. 1974 S. C. 2192) As we have considered all the contentions of the petitioner on merits, it is not necessary to express any opinion as to whether the condition necessary for review were fulfilled or not and whether the fresh writ petition was barred by res judicata by reason of the decision in the earlier writ petition. We thus find no force in the writ petition and the review application, both of which are hereby dismissed. THEre shall be no order as to costs.