PETITIONER:
DR. (SMT.) KESHAV DEVI
Vs.
RESPONDENT:
SHRI GIRDHARI LAL PAHWA & ORS.
DATE OF JUDGMENT05/11/1986
BENCH:
SINGH, K.N. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1987 AIR 22 1987 SCR (1) 126
1987 SCC (1) 92 JT 1986 778
1986 SCALE (2)720
ACT
U.P. Urban Buildings (Regulation of Let-
ting, Rent and Eviction) Act, 1972/U.P.
Urban Buildings Regulation of Letting, Rent
and Eviction) Rules, 1972:
Sections 16(1)(a) & 17(2)/Rule 19. Build-
ings--Part of in occupation of landlord for
residential purpose--Allotment of any other
part of building to be made in favour of
person nominated by landlord.
HEADNOTE
. One Mauji Ram Gupta was the owner of a
house consisting of ground floor and first
floor. When the vacancy in the first floor
arose, the landlord applied for release of the
premises u/s. 16 of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972. Respondent No. 4, the Additional
District Magistrate, rejected the claim of the
landlord and allotted the first floor to the
appellant. Thereafter, Respondent No. 1 pur-
chased the disputed house on 18.7.77 and
occupied the ground floor. The aforesaid order
of allotment was set aside on 18.8.77 by the
District Judge with a direction to respondent
No. 4 to reconsider the applications made for
allotment of the premises in accordance with
law.
Respondent No. 4 reconsidered the applica-
tions and by his order dated 4.1.78, again
allotted the premises to the appellant after
rejecting the claims of other applicants.
However, in a review petition filed by re-
spondent No. -landlord, Respondent No. 4 set
aside the aforesaid order of allotment by his
order dated 14.12.81 on the ground that since
the premises in dispute was a part of the
landlord’s building which he was occupying, it
was mandatory under s. 17(2) of the Act that
notice should have been issued to the landlord
and since no notice had been issued to the
landlord, the order was vitiated.
Aggrieved by the order of Respondent No. 4
the appellant filed a revision application
before the District Judge. The District Judge
set aside the order dated 14.12.81 passed by
Respondent No. 4 but the same was restored by
the High Court in a writ petition filed by
respondent no. 1. The High Court also directed
respondent no. 4 to consider the
127
applications for allotment after giving notice
to the landlord-respondent no. 1.
Dismissing the appeal to this Court,
HELD: 1. The allotment order dated 4.1.78
issued in appellant’s favour was rendered
illegal for the non-compliance of the mandato-
ry provisions of sec. 17(2) of the Act. In
that view even if there was any procedural
defect in entertaining the review application,
it would not be proper and desirable to inter-
fere with the order of the Addl. District
Magistrate, more so, when the High Court has
already upheld that order. [I35C]
2.1 When a building or a part of a build-
ing falls vacant or is likely to fall vacant,
the District Magistrate under s. 16(1) of the
Act has jurisdiction to issue allotment order
requiring the landlord to let the building or
part thereof to the person specified in the
order. The landlord may apply to the District
Magistrate for release of the whole or any
part of such building under s. 16(i)(b) of the
Act. If the release application is allowed,
the landlord is permitted to occupy the build-
ing or part thereof as the case may be. But if
release application is dismissed the District
Magistrate is empowered to issue allotment
order in favour of an applicant, and in pursu-
ance thereof the allottee is entitled to take
possession. [131G-H]
2.2. Before applications for allotment are
considered by the District Magistrate, it is
mandatory for him to serve notice of the
vacancy on the landlord informing him the date
on which the allotment is to be considered as
prescribed by Rule 9 of the U.P. Urban Build-
ings (Regulation of Letting, Rent and Evic-
tion) Rules, 1972. The object and purpose of
the notice to the landlord regarding the date
fixed for allotment proceedings is to enable
him to file his objections, if any, to the
allotment proceedings or to make application
for release of the premises as contemplated by
s. 16(1)(a) of the Act or to nominate a tenant
of his choice if he himself is in occupation
of a portion of the building. An allotment
order made without giving notice to the land-
lord as required by Rule 9(3) would be ren-
dered illegal. [131H-132A, C-D]
2.3. Section 17(2) of the Act lays down
that where a part of a building is in occupa-
tion of landlord for a residential purpose,
the allotment of any other part thereof under
s. 16(1)(a) shah be made in favour of a person
nominated by the landlord. This provision
safeguards interest of the landlord to have a
tenant of his choice if he is
128
occupying a portion of the building. The
legislature enacted sec. 17(2) with a view to
ensure peaceful living to a landlord and for
that purpose, it permitted the landlord to
have a tenant of his choice. The landlord’s
valuable right cannot be taken away by the
District Magistrate while exercising his
powers of allotment under sec.16(1)(a) of the
Act. [132H-133B]
In the instant case, no notice of the
allotment proceedings was issued to G.L.
Pahwa, respondent no. I, although the appel-
lant as well as the Addl. District Magistrate
both knew that G.L. pahwa had stepped in the
shoes of landlord and that he was occupying
ground floor of the building. The allotment
order was made in appellant’s favour on
4.1.78, but the landlord, though residing in a
part of the building was denied opportunity of
nominating a tenant of his choice as contem-
plated by sec. 17(2) of the Act. In these
circumstances there can be no doubt that the
order of the Addl. District Magistrate allot-
ing the premises to the appellant was com-
pletely without jurisdiction and against the
plain terms 0/sec. 17(2) of the Act. [133G-
134A]
Yoginder Tiwari v. District Judge, Gorakhpur
and Ors., [1984] 2 SCC 728 & Babu Singh Chau-
han v. Rajkumar Jain & Ors., [1982] 3 SCR 114,
relied upon.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
157 of 1985
From the Judgment and Order dated
20.1.1984 of the Allahabad High Court in W.P.
No. 1404 of 1983.
V.M. Tarkunde and Shakeel Ahmed Syed for the
Appellant.
S.C. Maheshwari, R.D. Upadhyay and Manoj
Saxena for the Respondents.
The Judgment of the Court was delivered by
SINGH, J. This appeal by special leave is
directed against the judgment of the High
Court of Allahabad (Lucknow Bench) dt. January
20, 1984 setting aside order of the Addl.
District Judge, Lucknow dt. January 18, 1983
and quashing the allotment order made in
appellant’s favour and directing the Addl.
District Magistrate (Civil Supplies), Lucknow
to reconsider the applications made for allot-
ment of the premises in dispute after giving
notice to the respondent landlord.
129
The dispute relates to 1st floor of House
No. 109/16 situate in Model House Colony,
Aminabad, Lucknow. Mauji Ram Gupta the owner
of the house was residing in the ground floor
of the house while the 1st floor was let out
to a tenant. Vacancy in the first floor arose,
several persons including the appellant, H.C.
Ghildiyal and Ramakant Srivastava made appli-
cations for allotment of the same. Mauji Ram
Gupta, the landlord also made an application
for the release of the premises to him under
sec. 16 of the U.P Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972
(hereinafter referred to as the Act). The
Addl. District Magistrate, respondent No. 4 by
his Order dt. 25.2.76 rejected Mauji Ram
Gupta’s application and allotted the premises
to H.C. Ghildiyal, but he did not occupy the
premises; instead he informed respondent no. 4
that he did not require the premises. Thereaf-
ter respondent no.4 allotted the first floor
of the house to the appellant by his order dt.
July 23, 1976 and in pursuance to that order
she obtained possession of the premises on
25.7.76. Mauji Ram Gupta, the landlord chal-
lenged the allotment order by means of revi-
sion application before the District Judge but
the same was rejected. Mauji Ram Gupta entered
into an agreement for the sale of the house
with G.L. Pahwa, respondent no. 1 and in part
performance of the agreement he permitted G.L.
Pahwa to occupy the ground floor of the house
in November 1976. G.L. Pahwa made application
for allotment and the respondent no. 4 allot-
ted the ground floor to him on 31.12.76, this
appears to have been done with a view to
regularise his possession. Mauji Ram Gupta
executed a registered sale deed in favour of
G.L. Pahwa on 18.7.77 transferring the entire
house including the premises in dispute to
him, as a result of which respondent no. 1
became the owner and the landlord of the
premises in dispute. R.K. Srivastava on unsuc-
cessful applicant for the allotment of the
premises in dispute had challenged the allot-
ment order dt. 23.7.86 made in appellant’s
favour under sec. 18 of the Act. The District
Judge by his order dt. 18.8.77 allowed his
revision application set aside the allotment
order made in appellant’s favour and directed
respondent no. 4 to reconsider the applica-
tions made for allotment of the premises in
accordance with law. In pursuance of the
directions issued by the District Judge re-
spondent no. 4 considered the applications and
by his order dt. 4.1.78 he again allotted the
premises to the appellant and rejected the
claims of other applicants. Notice of the
allotment proceedings was not given to re-
spondent no. 1, although by that time he had
acquired full rights of a landlord. It appears
that respondent had made an application to the
State Govt. for release of the first floor and
that had been forwarded by the Govt. to re-
spondent no. 4, which he disposed of by the
same order dt. 4.1.78. Respondent no. 1 filed
a
130
revision application under sec. 18 of the Act
challenging the allotment order dt. 4.1.78. He
filed a review application also before re-
spondent no. 4 for recall of the order dt.
4.1.78. During the pendency of the review
application the revision application made by
respondent no. 1 was dismissed by the District
Judge on 28.2.78 for want of prosecution.
However the review application of respondent
no. 1 was allowed by respondent no. 4 by his
order dr. 14.12.81 on the finding that since
the premises in dispute was a part of land-
lord’s building which he was occupying, it was
mandatory that notice should have been issued
to the landlord and since no notice had been
issued to him the allotment order was vitiat-
ed. On these findings, he recalled his Order
dated 4.1.78. The appellant challenged the
order by means of a revision application
before the District Judge under sec. 18 of the
Act. The Addl. District Judge, Lucknow exer-
cising powers of the District Judge allowed
the revision application by his order dt.
18.1.83, and set aside the order of respondent
no. 4 dt. 14.12.81, on the findings that
review application was not maintainable and
respondent no. 4 had no jurisdiction to review
his order on the ground of absence of notice
to respondent no. 1 who was transferee land-
lord. Respondent no. 1 challenged the validity
of the order of the Addl. District Judge dt.
18.1.83 by means of a writ petition under Art.
226 of the Constitution before the High Court.
A learned Single Judge of the High Court
allowed the writ petition by his order dt.
January 20, 1984 and quashed the order of the
Addl. District Judge and directed respondent
no. 4 to consider the application for allot-
ment for giving notice to respondent no. 1.
Aggrieved the appellant challenged the validi-
ty of the order of the High Court.
Before we consider the submissions made on
behalf of the appellant it is necessary to
briefly notice the findings recorded by the
High Court. The High Court held that since the
District Judge while setting aside the initial
order of allotment made in appellant’s favour
dt. 23.7.76 directed respondent no. 4 to
consider the allotment applications in accord-
ance with law. Respondent no. 4 was under a
legal duty to issue notice to respondent no. 1
who had by that time acquired rights of land-
lord. Since no notice was given to him the
allotment proceeding was rendered illegal. The
High Court further held that even though the
landlord’s application for release of the
premises in dispute had been rejected, the
transferee landlord had right to nominate a
tenant of his choice in accordance with sec.
17(2) of the Act. But as no notice was issued
to him, he could not exercise his right to
nominate a tenant of his choice although the
appellant as well as the authority considering
the application, for allotment both had ac-
quired
131
knowledge that respondent no. 1 was the trans-
feree landlord occupying a portion of the
building. The High Court held that provisions
of sec. 17(2) were mandatory and its non-
compliance rendered the allotment order void.
The High Court held that as the order of
allotment dt. 4.1.78 was made without giving
notice to the landlord, the alloting authority
was competent to recall its order in exercise
of its inherent jurisdiction. On these find-
ings the High Court set aside the order of the
Addl. District Judge and directed the alloting
authority to reconsider the applications for
allotment after giving notice to the landlord
respondent no. 1.
Shri Tarkundc learned counsel for the
appellant urged that the High Court committed
error in setting aside the allotment order and
directing the District Magistrate to reconsid-
er the allotment applications at the instance
of G.L. Pahwa, respondent no. 1. He further
urged that since Mauji Ram Gupta, the erst-
while landlord’s application for release of
the premises in dispute had been dismissed and
revision against that was also dismissed for
non-prosecution, the erstwhile landlord had
exhausted all his rights available to him
under the Act. G.L. Pahwa being the successor
in interest of Mauji Ram Gupta, did not and
could not acquire any further right either to
get the premises in dispute released in his
favour or to challenge the validity of the
allotment order. G.L. Pahwa was not entitled
to maintain a review application and Addition-
al District Magistrate had no jurisdiction to
recall his order dated 4.1.78 alloting the
premises to the appellant and further he was
not entitled to any notice either under sec-
tion 17(2) of the Act or under Rule 9(3), as
the requisite notice had already been issued
to the erstwhile landlord Mauji Ram Gupta who
had contested the allotment proceedings.
Having given our anxious consideration to
these submissions and having regard to the
facts and circumstance of the case we do not
find any merit in the submissions.
When a building or a part of a building
falls vacant or is likely to fail vacant, the
District Magistrate under section 16(1)(a) of
the Act has jurisdiction to issue allotment
order requiring the landlord to let the build-
ing or part thereof to the person specified in
the order. The landlord may apply to the
District Magistrate for release of the whole
or any part of such building under section
16(1)(b) of the Act, if the release applica-
tion is allowed, the landlord is permitted to
occupy the building or part thereof as the
case may be. But if release application is
dismissed the District Magistrate is empowered
to issue allotment order in favour of an
applicant, and in pursuance thereof the allot-
tee is entitled to take possession. Before
applications for allotment are con-
132
sidered by the District Magistrate it is
mandatory for him to serve notice of the
vacancy on the landlord informing him the date
on which the allotment is to be considered as
prescribed by Rule 9 of the U.P. Urban Build-
ings (Regulation of Letting, Rent and Evic-
tion) Rules, 1972 (hereinafter referred to as
the Rules). Rule 9(3) requires service of
notice and intimation of the date fixed for
considering the allotment of the premises
which may have fallen vacant or is likely to
fall vacant. This is mandatory as has been
held by this Court in Yoginder Tiwari v.
District Judge, Gorakhpur and Ors., [1984] 2
SCC 728 and in catena of cases the High Court
of Allahabad, has taken the same view, it is
not necessary to burden the judgment by refer-
ring to all those decisions. The object and
purpose of the notice to the landlord regard-
ing the date fixed for allotment proceedings
is to enable him to file his objections if
any, to the allotment proceedings or to make
application for release of the premises as
contemplated by section 16(1)(a) of the Act or
to nominate a tenant of his choice if he
himself is in occupation of a portion of the
building. An allotment order made without
giving notice to the landlord as required by
Rule 9(3) would be rendered illegal. We there-
fore agree with the view taken by the High
Court.
At the initial stage of allotment proceed-
ings for the year 1976, Mauji Ram Gupta, the
erstwhile landlord had made application for
release of the accommodation and the first
floor of the house, but that application was
rejected and thereupon the District Magistrate
allotted the premises to H.C. Ghildiyal by his
order dated 23.7.76 Mauji Ram Gupta’s revision
application against the order rejecting his
release application was rejected by the Dis-
trict Judge on 5.8.76. Meanwhile the District
Magistrate allotted the premises to the appel-
lant by his order dated 23.7.76. On the dis-
missal of the revision application of Mauji
Ram Gupta, his claim for release of the premises in dispute stood rejected finally. As noted earlier Mauji Ram Gupta sold the entire house in dispute to G.L. Pahwa on 18.7.77 and the allotment order in appellant’s favour was set aside by the Additional District Judge on 8.8.77 at the instance of R.K. Srivastava on unsuccessful applicant for the allotment of the premises in dispute. It is noteworthy that the appellant took no proceedings to challenge the order of Additional District Judge dt. 8.8.77 under which the allotment order was set aside and the District Magistrate was directed to reconsider the allotment applications in accordance with law. In such a situation G.L. Pahwa who had admittedly became the landlord of the premises in dispute was entitled to exercise fights of the landlord available to him under the Act. Section 17(2) lays down that where a part of a building is in occu- 133 pation of landlord for a residential purpose, the allotment of any other part thereof under section 16(1)(a) shall be made in favour of a person nominated by the landlord. This provision safeguards interest of the landlord to have a tenant of his choice if he is occupying a portion of the building. The legislature enacted sec. 17(2) with a view to ensure peaceful living to a landlord and for that purpose it permitted the landlord to have a tenant of his choice. The. landlord’s valuable right cannot be taken away by the District Magistrate while exercising his powers of allotment under sec. 16(1)(a) of the Act. The scope and purpose of sec. 17(2) of the Act was considered by this Court in Babu Singh Chauhan v. Rajkumar Jain & Ors., [1982] 3 SCR 114 and the Court observed: "A perusal of this statutory provision would clearly disclose that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises, which arc a part of the building occupied by the landlord, and allotment in the vacancy should be made only to a person nominated by the landlord. The dominant purpose to be subserved by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord. It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord, there is no question of the landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the grounds of personal necessity. The statute, however, while empowering the prescribed authority to allot the accommodation, safeguards at least the right of the landlord to have a tenant of his choice."
In the instant case there is no dispute that when the allotment proceedings were taken in pursuance of the District Judge’s Order dt. 8.8.77 and when the allotment was made in appellant’s favour on 4.1.78 no notice of the allotment proceedings was issued to G.L. Pahwa, respondent no. 1, although the appellant as well as the Addl. District Magistrate both knew that G.L. Pahwa had stepped in the shoes of landlord and that he was occupying ground floor of the building. The allotment order was made in appellant’s favour on 4.1.78, but the landlord, though residing in a part of the building was denied opportunity of nominating a tenant of his choice as contemplated by sec. 17(2) of the Act. In these circumstances there can be no doubt that 134 the order of the Addl. District Magistrate alloting the premises to the appellant was completely without jurisdiction and against the plain terms of sec. 17(2) of the Act.
The submission of Shri Tarkunde that on dismissal of the revision application of Mauji Ram Gupta the erstwhile landlord, all fights of the landlord stood exhausted and G.L. Pahwa being the transferee landlord could not exercise any further fight of landlord in the matter relating to allotment of the premises in dispute are untenable. Mauji Ram Gupta’s application for release of the premises was dismissed and a revision application filed ’by him against the order of the Addl. District Magistrate refusing to release premises in dispute stood rejected, but if the conditions set out in sec. 16(1)(b) existed we see no reason as to why the transferee landlord could. not press his case for release but we do not think it necessary to consider this question in detail or to express any opinion on this question as admittedly the transferee landlord respondent no. 1 made no application for release of the premises in dispute to the District Magistrate or to the prescribed authority and his application made to the State Government for release of the accommodation which was forwarded to the District Magistrate was rejected and the High Court has upheld that order and no challenge has been made by G.L. Pahwa to that order. Assuming that the transferee landlord’s fight to get the premises in dispute released stood exhausted, G.L. Pahwa being the landlord had every fight to nominate a tenant of his choice in accordance with sec. 17(2) of the Act. Admittedly no notice had been issued to G.L. Pahwa affording any opportunity of nominating a tenant of his choice before the order of allotment dt. 4.1.78 was made. The landlord has fight to apply for release of the premises on the falling of a vacancy failing which he has another fight under sec. 17(2) to nominate a tenant of his choice if he is occupying a portion of the building. It is the duty of the authority considering the allotment under sec. 16(1)(a) of the Act, to afford opportunity to the landlord to nominate tenant of his choice and if the landlord nominates a person of his choice the authority is bound to allot the premises in favour of the nominee of the landlord. Mauji Ram Gupta was not given that opportunity, there was thus no question of his having exhausted his right to nominate a tenant of his choice.
Learned counsel for the appellant urged that the Addl. District Magistrate had no power to allow the review application made by G.L. Pahwa or to recall his order dt. 4.1.78 alloting the premises in dispute to the appellant. Sec. 16(5) provides for review of an order of allotment at the instance of a landlord on an application made within 7 135 days. In the instant case the Addl. District Magistrate by his Order dt. 14.12.81 recalled his order dt. 4.1..78 alloting the premises in dispute to the appellant on the ground that no notice of the proceeding had been served on the landlord, respondent no. 1 and that there was enough evidence on record to show that the premises in dispute was a part of the landlord’s accommodation, yet he was not given opportunity to nominate a tenant of his choice. The Addl. District Magistrate therefore recalled the order on the ground that the allotment order had been issued in violation of the mandatory provision of sec. 17(2) of the Act. No exception can be taken to the correctness of the merit of the order of the Addl. District Magistrate. As discussed above we have already expressed our opinion that the allotment order dt. 4.1.78 issued in appellant’s favour was rendered illegal for the non-compliance of the mandatory provision of sec. 17(2) of the Act. In that view even if there was any procedural defect in entertaining the review application, it would not be proper and desirable to interfere with the order of the Addl. District Magistrate, more so, when the High Court has already upheld that order. In view of the above discussion we are of the opinion that the High Court’s order does not suffer from any error of law and the appellant is not entitled to any relief. We accordingly dismiss the appeal with costs. M.L.A. Appeal dismissed. 136