Skip to content


The Senior Administrative and Accounts Officer, Atomic Minerals Division Department of Atomic Energy, Hyderabad Vs. E.P.B. Manian and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal Nos. 377 of 1982 and 921 of 1983
Judge
Reported inAIR1985AP96
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 3(4) and 26
AppellantThe Senior Administrative and Accounts Officer, Atomic Minerals Division Department of Atomic Energy
RespondentE.P.B. Manian and anr.
Appellant AdvocateK. Nagaraja Rao, Add. Central Govt. Standing Counsel and ;Govt. Pleader for ;GAD
Respondent AdvocateVenugopal Reddy and ;Md. Mukrammuddin, Advs.
Excerpt:
tenancy - eviction - sections 3 (4) and 26 of andhra pradesh buildings (lease, rent and eviction) control act, 1960 - respondent got possession of property under partition which was occupied by appellant as tenant - respondent claimed possession of property as he wanted to shift in that house with his family - possession was not delivered by appellant even though eviction order passed by learned judge - appeal preferred against order of learned judge - contention raised by appellant that order of eviction was not passed by authorised officer under section 3 (4) - authorised officer was in authority to release building - held, appellant liable to hand over possession to respondent. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock.....p.a. choudary, j. 1. w.a. no.377/82; this writ appeal is filed against a judgment of our learned brother, jeevan reddy, j. the appellant in this writ appeal is the senior administrative and accounts officer, atomic minerals division, department of atomic energy, who is one of the respondents to the writ petition (hereinafter he will be called as the appellant also.) the appellant has a branch office at hyderabad and it is housed in a rented building no.1-11-200 begumpet, hyderabad. that building belongs to one e.p.b. manian (hereinafter referred to also as 'the writ petitioner'). that building was requisitioned by the state govt., (another respondent to the writ petition) from the writ petitioner some time back, and allotted to the appellant under the provisions of the a.p.buildings.....
Judgment:

P.A. Choudary, J.

1. W.A. No.377/82; This writ appeal is filed against a judgment of our learned brother, Jeevan Reddy, J. The appellant in this writ appeal is the Senior Administrative and Accounts Officer, Atomic Minerals Division, Department of Atomic Energy, who is one of the respondents to the writ petition (hereinafter he will be called as the appellant also.) The appellant has a branch office at Hyderabad and it is housed in a rented building No.1-11-200 Begumpet, Hyderabad. That building belongs to one E.P.B. Manian (hereinafter referred to also as 'the writ petitioner'). That building was requisitioned by the State Govt., (another respondent to the writ petition) from the writ petitioner some time back, and allotted to the appellant under the provisions of the A.P.Buildings (Lease, Rent and Eviction) Control Act 1960 (hereinafter referred to also as 'the Rent Control Act'). Since then the appellant has been occupying that building. While building is under the occupation of the appellant, it became the subject matter of a partition suit in OS.627/75 on the file of the VI Addl. Judge, City Civil Court, Hyderabad. In that partition suit, the building had fallen to the share of the writ petitioner and his sons. Thereupon, the writ petitioner applied on 29-4-80 to the Authorised Officer under the Rent Control Act seeking release of the building from the operation of the above Act. He sought recovery of its possession from the appellant. His grounds were that his sons and himself had need to move out of their rented house and occupy the buildings. This is a ground which the above Rent Control Act calls 'as ground of personal occupation' and which the Act looks upon with favour. The ideal is that the need of the owner to occupy his own buildings should not be totally overlooked. The Rent Control Act therefore permits the authorised officer to release the building in favour of the owner for the latter's personal occupation. On receipt of Manian's application, the authorised officer under the Rent Control Act, called for the views and comments of the appellant who would be affected by any order that he might pass releasing the building from the purview of the Rent Control Act. The appellant wrote to the authorised officer on 20-6-80 opposing Manian's request for release of the building and asserting his own need to continue to occupy the building to be greater than that of Manian's. There was thus a contest between the writ petitioner and the appellant each asserting his need for the building to be greater than that of the other. The authorised officer presumably after a consideration of the rival claims, wrote to the appellant upholding the claim of Manian as against that of the appellant. Through his memo No.507/Accommodation/80 dt 8-4-81 the authorised officer wrote to the appellant releasing the building from the purview of the Rent Control Act and ordering its possession to be restored back to Manian for his personal occupation. This is a statutory order which the authorised officer is competent to make. The appellant is bound to vacate the building. As a consequence the authorised officer requested the appellant to vacate the building within three months by securing alternative accommodation. The three month's grace period would then expired by 21-7-81. But from the beginning never did the appellant entertain any idea of vacating the building. The appellant wrote to the authorised officer on 6-5-81 informing him that 'this Dept., is not in a position to vacate the above premises for want of suitable alternative accommodation for our laboratory and other officers...... The appellant also wrote a similar letter to Manian. Manian in his turn, wrote to the authorised officer on 30-6-81 requesting him to get the building vacated as per his Memo D/-8-4-81. The authorised officer wrote once again to the appellant on 10-7-81 seeking the vacation of the building. But this request produced no greater effect on the appellant than the Memo of April, 1981. The authorised officer finally wrote to the appellant on 11-8-81 threatening him with forcible dispossession unless the appellant vacates the building within thirty days. Neither requests nor threats had shaken of the appellant's will of defiance. The appellant wrote back to the authorised officer asserting this time that under law the building could not have been legally released by the authorised officer. That was on 27-8-81, and was just a few days before the thirty days time limit set by the authorised officer would expire. The authorised officer, therefore, wrote another letter to the appellant explaining how the exemption claimed by the appellant under G.O.Ms.No.487 would be inapplicable to S.3 of the Act. Caught between the request of Manian on the one hand and defiance of the appellant on the other, the authorised officer wrote to the Estate Officer authorising him to evict the appellant by force from the building. The estate officer in his turn, wrote to the appellant asking him to deliver peaceful possession of the building by 19[10[81 to the landlord threatening him with forcible dispossession in case of his failure to vacate. Even then the appellant did not care to vacate the building. The three months time stipulated by the authorised officer had passed by 11-9-81. As the time stipulated by the authorised officer had passed by 11-9-81 and as the time stipulated by the estate officer had expired by 19.10.81, the estate officer started on 19-10-81 eviction proceedings by use of force. While the estate officer was going on with eviction proceedings on 19-10-81 he was telegraphically directed by the authorised officer to stop eviction. The estate officer, acting in compliance with those directions, stopped eviction proceedings. The stay of eviction was the result of orders obtained by the appellant on that day from the State Government. On 19-10-81, the appellant applied to the State Minister for Housing and Accommodation 'to restrain and suspend the eviction proceedings............' Action on the above application of the appellant, the State Minister directed the authorised officer to cease and desist from evicting the appellant. The Minister's order said, 'no action for eviction need be taken pending examination of the merits of the application filed by the appellant.'

2. Having come to know that the appellant had filed an application to the Minister and had obtained the aforementioned order, Manian had applied to the Minister on 21-10-81 to rescind the Ministerial order and to allow the eviction proceedings to go on. But Manian was not successful before the Minister. He was now driven to a corner. Not having been successful in enlisting the support of the State Government, Manian filed a writ petition in this court. Manian challenged in his writ petition, not only the validity of the Minister's order of stay of eviction, but also the jurisdiction of the Govt., to entertain such an application from the appellant. Manian's prayer in the writ petition was for the issuance of an appropriate mandate from this court to the State Government to implement the orders of the authorised officer dt. 8-4-81 releasing the building from the purview of the Rent Control Act and directing delivery of possession of the building to him.

3. IN the writ petition, Manian contended that the order passed by the authorised officer under se.3(4)(a) of the Rent Control Act releasing the building in his favour cannot be reviewed or interfered with, in any way, by the State Government. The principal defence of the appellant in the writ petition is, that the State Government has power to review an order of release passed by the authorised officer. The appellant's minor contention is that the writ petition was premature in view of the fact that it has been filed when the State Govt., had not finally decided upon the merits of the appellant's contentions. Substantially, the defence of the State Govt., has run on the same lines as that of the appellant.

4. The learned singe Judge upheld the contention of Manian and rejected the appellant's defence and allowed his writ petition. It is against that order of the learned Judge the present writ appeal has been filed.

5. The main point of law that is raised by this writ appeal for consideration of the court is whether an order passed by an authorised officer under sec.3(4)(b) of the Rent Control Act releasing a building from the occupation of the allottee and for the occupation of the landlord is final and whether such an order can be cancelled, varied or modified by the State Govt.? It is beyond doubt that the Statute clothes the authorised office under sec.3(4)(a) of the Rent Control Act with power to release a building under the occupation of the allottee from the provisions of the Rent Control Act. It is equally clear that the Rent Control Act treats such an order of release passed by the Authorised officer under sec.3(4) leaves no scope for argument. Under the Rent Control Act, there is no way of correcting such an order passed by the authorised officer releasing the building. No specific right of appeal or revision or review is conferred on an aggrieved party from such an order of the authorised officer. No doubt there is legal provision under sec.3(4)(a) of Rent Control Act giving concurrent powers to the State Govt., to give a direction to the authorised officer to release a building. But this provision is in no way relevant for consideration of the question at issue. Under that power the State Govt., can itself release the building but cannot upset an order issued by the authorised officer, releasing the building. Arguably that power of the State Govt., might be available to the State Govt., to be exercised directing the authorised officer to release a building for the occupation of the landlord even ignoring a contrary order that might have been earlier made by the authorised officer refusing to release the same building. But here, we are concerned with an order of release passed by the authorised officer and not with his order of refusal. In considering whether the order of release by the authorised officer is reviewable or revisable by the Government, the above power of the Government is not of any use. We therefore omit from our consideration the above legal provision conferring concurrent by probably superior powers of release on the State Government. We have to confine ourselves to the consideration of the limited question: Does the Government have power to set aside a release order? In that context, we have to take notice of the significant fact that the Statute deliberately omitted to provide for an appeal or revision or review to an aggrieved party from the release orders passed by an authorised officer, to the State Govt. In law, this omission is fatal to any claim on the part of the State Government to entertain an appeal or review or revision from the release order passed by the authorised officer. It is well known that in common law, there is no inherent right of appeal and that any right of appeal should be conferred by Statute. Where such a right is not conferred by a Statute it would not be available. Applying that well-settled rule it must be held that in entertaining the petition filed by the appellant on 19-10-81 and issuing directions to the authorised officer to stop until further orders forcible eviction of the appellant from the building, the State Government acted illegally and without jurisdiction. By whatever name one may choose to call such acts of the State Government, those acts would in the end clearly amount to exercising the reviewing jurisdiction by the Government over the releasing orders of the authorised officer which the Statute does not confer. The appellant accepts so much. He admits that specific powers of Statute are required for exercising such reviewing authority. He finds that no provision of the Rent Control Act has invested the Government with such jurisdiction, authority or power. Yet he justifies the attempts of the Government to sit in judgment over the release order of the authorised officer in this case. That attempt is based on somewhat conceptualistic reasoning of analytical jurisprudence. The appellant argues that the release order passed by the authorised officer is an administrative order, and is not a quasi-judicial order. Proceeding from that premise the appellant argues that such a release order of an authorised officer which is of an administrative nature, can be reviewed by the State Government without necessity of any statutory sanction. His argument is that merely because it is an administrative order the release order of the authorised officer should suffer review any number of times. In support of this contention,the learned counsel strongly relied upon a case reported in R.R.Verma v. Union of India, : (1980)IILLJ152SC . In that case, the question of law which has been raised is, whether the Central Government has powers to review its earlier orders under the All India Services (Conditions of Service) Residuary Matters: Rules , 1960? The appellant argued before the Supreme Court that the Central Government had no such power of review because, the rules do not vest the Government with any such power and relied upon several previous decisions of the Supreme Court. Rejecting the arguments of the learned counsel in that case, and distinguishing the earlier cases cited before it, the Supreme Court made the following observations on which the appellant mostly relies:-

'We do not think that the principle that the power to review must be conferred by Statute either specifically or by necessary implication is applicable to decisions purely of an administrative nature.'

In view of the above pronouncement of the Supreme Court on which the appellant places strong reliance, it must be held that pure administrative decisions can generally be reviewed even without the authority of statutory provision. But the real question is, in what sense the phrase 'pure administrative order' should be understood. Can the order passed by the authorised officer under sec.3cl. (4) of the Rent Control Act be treated as a pure administrative order? It is wrong to ask what is an administrative order. For the reasons which we will show later on, we think it is wrong to ask what is an administrative order . That way we cannot get the right answer. We should not forget that a wrong question may not get a right answer. We should remember that the phrase 'administrative order' in law, does not denote an object nor it cannote a name of thing. That phrase is generally used in the context of judicial supervision exercised by superior courts of law over acts of administrative bodies adversely affecting the rights of persons. It is an axiom of British Jurisprudence that law alone can adversely effect legal rights and the executive cannot do that. From that it follows that wherever an order of an administrator (outside legislation) adversely affects the rights of persons, supremacy of law should impose judicial control and supervision on such orders. For such purpose, such orders when passed by bodies other than courts, are called judicial or quasi-judicial indicating their amendability to judicial supervision. But when such orders are passed by bodies other than courts without affecting the legal rights of persons they are called administrative orders indicating thereby that no judicial supervision is called for in such cases. IN other words, the term administrative order is used to indicate an act of the State not affecting the citizen's rights. The actions of administrator affecting adversely rights of persons inviting judicial supervision are given the common appellation of judicial or quasi-judicial and the other acts of administrator not interfering with the rights of persons and therefore not calling for judicial supervision, are called administrative orders. The essence of this characterization, at least in administrative law, consists in its invitation judicial supervision and in nothing else. It is now recognised that application of these appellations has, in the past, led sometimes to circular reasoning and unsatisfactory results. For example, in Rex v. Legislative Committee of the Church of England Ex.P.Haynes v. Smith (1928) 1 KB 411 Lord Hewart C.J., observed to the effect that it is not enough for a body to attract judicial supervision to be having legal authority to determine question affecting the rights of subjects and passing an order adversely affecting the rights of person , but there must be super-added to that the further characteristic of duty to act judicially. Now the report of the Committee on Minister's powers (1932) accepting the above dictum of Lord Justice Hewart defined an administrative order in the following terms.

'In the case of administrative decision, there is no legal obligation upon a person charged with the duty of reaching a decision to consider and weigh submissions and arguments or to collate any evidence or to solve any issue. The grounds upon which he acts,and the means to which he takes to inform himself before acting are left entirely to his discretion.'

Under this classification an order although adversely affecting person's rights would not attract judicial supervision because the Statute did not put the body under a duty to act judicially. The report on Minister's powers overlooked the purpose underlying the classification of State acts into judicial, quasi-judicial and administrative. The fact that the purpose of classification in furctional and not conceptual is overlooked. The report is based on conceptualistic reasoning. The result of acceptance of the above conceptualistic theory by the report has led to the awkward situation of denying the availability of certiorari to remedy the citizen's injury from State action and to arbitrary refusal to apply principles of natural justice to several orders affecting the rights of the subject (see Nakkuda Ali v. Jayaratne (1951) AC 66). Now the recent developments in the English administrative law beginning particularly with the Frank's Committee Report (1955) and the judgment of the Houser of Lords in Ridge v. Baldwin (1964)Ac 40 had greatly repaired the damage done by this conceptualistic thought to the rights of citizens. These developments in administrative law rejected the above conceptualistic approach. These developments have placed less emphasis on the classification of powers into judicial or quasi-judicial or administrative in considering the justification for judicial review or in the application of the principles of natural justice. These developments have resurrected the theory that administrative orders are subject to the controlling jurisdiction of the superior courts without there being any necessity for a court first to classify the action and to apply the appropriate label, and without any necessity for the Statute, providing for duty to act judicially. Lord Hodson observed in Ridge v. Baldwin (supra).

'The answer in a given case is not provided by the statement that the giver of the decision is acting in an executive or administrative capacity as if that were the antithesis of the judicial capacity.' The cases seem to me to show that persons acting in a capacity which is not on the fact of it judicial, but rather executive or administrative have been held by the courts to be subject to the principles of natural justice.'

Similarly in Re v. Pergamon (1971) Ch 388 at 402 it has been said by Saches L.J.

'It is the characteristics of the proceeding that matter, not the precise compartiment or compartment into which it falls.'

Consequently today wherever citizen's rights are adversely affected the proceeding of the administrator is treated as quasi-judicial supervision. In Acc v. Sharma, : (1965)ILLJ433SC , a constitution Bench of our Supreme Court had accepted this great change that had overtaken the theory of judicial supervision of administrative orders. After referring to Ridge v. Baldwin (1964 AC 40) (supra) our Supreme Court observed in the above Sharma's case thus (at P.1602):

'In other words, according to Lord Reid's judgement, the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the decisions which the Watch Committee had been authorised to reach under sec. 191(4). It would thus be seen that the area where the principles of natural justice have to be followed and the judicial approach has to be adopted had become wider.....'

Following this line of reasoning our Supreme Court firmly ruled in State of Orissa v. Binapani Dei, : (1967)IILLJ266SC that even administrative orders must be made in conformity with rules of natural justice, if they involve civil consequences. From the above,the question whether the order passed by the authorised officer is quasi-judicial or administrative should be answered not on the basis of the label given to such an order, but on the basis of the adverse legal effects of such an order. An order that has serious legal effects will be treated as quasi-judicial.

6. A survey of the relevant legal provisions of the Rent Control Act shows that sec.2 Cl.(4) of the Act deals with an important legal question arising under the Act. That Section deals with the question as to which authority should put an end to the tenancy created by reason of compulsory requisition and allotment of a private building under sec.3 of the Act. In a case where a private building is occupied by a private person and a tenancy is created by a contract between the parities, the Act authorises the Rent Controller to put an end to such tenancy. The Rent Controller is clothed with the necessary powers. Similarly where a private building is requisitioned under sec.3 and allotted for the occupation of the government or its agencies and thus a tenancy has been compulsorily created and where subsequently the landlord seeks release of his building by putting an end to the tenancy created by the requisition and allotment, the Act constitutes under sec.3 cl.(4) the authorised officer or the State Government as the two competent authorities to deal with such a situation. In such a situation where landlord seeks release of his building from compulsory tenancy,the allottee is most likely to oppose the landlord's request. A lis is thus created between the proposition of the landlord and the opposition of the allottee. A dispute thus arises. Sec.3 Cl.(4) of the Act provides for the forum for the resolution of such a dispute as sec.10 of the Act provides similar forum for the resolution of dispute, between two private parties. Sec. 3 Cl.(4) of the Act thus deals with a dispute about property and about termination of tenancy. Sec. 3 Cl.(4) of the Act, no doubt provides for no elaborate inquiry. But in this fundamental object of providing a forum for settlement of a tenancy dispute, it is more or less similar to sec.10 of the Act. If an order passed under sec.10 is not an administrative order there is no reason to hold an order passed under sec.3 Cl(4) to be an administrative order. Similarly,in the matter of consequences also any order passed by the authorised officer under sec.4 Cl.(4) of the Act terminating the tenancy is fraught with serious repercussions for the parties. It follows, therefore, that the exercise of power under sec.3 cl.(4) of the Act, should be held to be quasi-judicial and not administrative. It is on the basis of the above consideration, one of us (p.A.Choudary, J.) held in Kasturilal v. Authorised Officer (1982) 1 Andh LT 233) has held that the power under sec.3 Cl.(4) of the Rent Control Act should be exercised only after hearing the objections of the allottee. We are in agreement with the reasoning of that decision. Considering the fact that today classification of function is not readily decisive and that the obligation of the authority to accord hearing does not any longer depend upon a super added duty to act judicially and that such a duty can be legally inferred by the courts from the mere seriousness of consequences that would follow from the nature of the act we hold following the decision of our Supreme Court in Indian Sugar and Refineries Ltd. v. Amarvati Service Co-op. Ltd., : [1976]2SCR740 that the authorised officer performs under Sec..3 Cl.(4) of the Act, a quasi-judicial function and not a pure administrative act. As a part of that conclusion we also reject the appellant's argument that under sec.3 Cl.(4) of the Act , the authorised officer or the State Govt., can release a building or refuse to release a building according to their whims and fancies. It appears to us that this argument of vagrant power being available to the authorised officer or the State Govt. would not only be consistent with the scheme of article 14 of the Constitution but would also be contrary to the rules of statutory interpretation accepted in Padifield v. Minister of Agriculture, Fisheries and Food (1968) Ac 997. IN that case the House of Lords held that a Statute passed by a legislature must be deemed to have been passed for promotion of certain statutory purposes either expressed by the Statute or assumed by the courts. When the statute does not express the purposes the courts must articulate them. Law of ultra vires which is the foundation of the functioning of the courts requires the above to be done by the courts. This reasoning was adopted by our Supreme Court in Rohtas Industries Case, : [1969]3SCR108 . It is implication of the rule of law that no statutory power can be exercised except for furtherance of the statutory purpose. Otherwise, the exercise of power would be ultra vires of the statute. It follows, that the power under sec.3 cl.(4) of the Act can never be vagrant. It should be exercised only for the purposes which are determined by the courts to be relevant for the purposes of the Rent Control Act. It follows that there are purposes binding upon the authorised officer or the Government in their exercise of power under sec.3 (4) of the Act. It cannot therefore be said that in exercising powers under Section 3 (4) of the Act. It cannot therefore be said that in exercising powers under Section 3 (4) of the Rent Control Act, the authorities are acting merely according to policy. We therefore, cannot agree with the appellant that under Section 3 Cl.(4) of the Act statutory powers can be exercised without any guidance and without any purpose and for that reason the power in an administrative power.

7. There are a few more decisions on which the appellant has relied upon or to which he made a passing reference. None of them can be counted as helpful to the appellant. In Ghulam Abbas v. State of U.P. : 1981CriLJ1835 one of the questions that had fallen for the consideration of the Supreme Court was,whether an order issued under section 144 of the new Criminal Procedure Code is a judicial order. That question arose before their Lordships in the context of availability of judicial supervision under article 32 of the Constitution. Their Lordships answered that question in the negative holding that an order passed under Section 144 of the present Code will have to be regarded as an executive order passed in performance of an executive function. For our present purposes it is important to note what their Lordships thought to be the relevant criterial for deciding that question. Their Lordships observed that no lis as to any rights between rival parties is adjudicated, under article 32 of the Constitution. It is clear that the above observations of the Supreme Court would negative the appellant's conceptulistic contention. On the other hand, those observations would show that the proper test to be applied is functional and that where there is lis between two parties regarding the rights inter se. the order passed by the authority would be treated as quasi-judicial. The other decision in Nagalakshmaiah v. State of A.P. (1973) 2 Serv LR 105(1973 Lab IC 656((FB) of this Court cited before us does not appear to have any bearing on the question in issue. We find that the decisions of the Supreme Court in the State of A.P. v. Parasuram : [1974]1SCR191 do not support the contention of the appellant. The question which had fallen for consideration in that case was whether in appointing non-hereditary trustees to temples under section 15 of A.P. Charitable and Hindu Religious Endownment Institutions Act of 1966, the authorities are acting judicially. The Supreme Court held that in appointing a non-hereditary trustee, the concerned authorities do not act judicially. In view of the settled legal position that no rights, inter parties, are adjudicated upon by the authority in appointing trustees, the Supreme Court held, that appointing trustees, does not involve any exercise of quasi-judicial power. In deciding so, the Supreme Court has set out two principles. The first principle dealt with a classic triangular situation of a lis inter parties and its settlement by a third party. The Supreme Court held that in such a court-like situation the duty to act judicially would be implied, unless excluded by the statute. As contrasted with the above, the Supreme Court also considered a situation where without there being two parties a statutory authority has power to do an act which will prejudicially affect the subject. In such a situation the Supreme Court held that the duty to act judicially could be implied if the statue expressly provided for it. It must be observed that the second principle echoes the dictum of Lord Hewart made in the above Church of England Case (1928-1KB 411)(supra) and heard through Khushaldas Advani case (AIR rendered before Ridge v. Baldwin (1964 AC 40) and Sharma's case : (1965)ILLJ433SC . In view of the judgment of our Supreme Court rendered subsequent to Ridge v. Baldwin (supra) and specifically in view of the above mentioned Sharma's case and others, the rule in Kushaldas Advani case may no longer be the governing rule. But, we are concerned in this case with the first type of situation where there is a lis between the landlord and the licencee and its settlement by a designated officer. In such a situation, it is clear that the Supreme Court has always been implying a duty to act judicially. Parusuram's case : [1974]1SCR191 , therefore, cannot be cited in support of the appellant's present contention.

8. The observations of Krishna Iyer J., in Maneka Gandhi case : [1978]2SCR621 to the effect that the distinction between administrative acts and quasi-judicial acts has largely become obsolescent are made in refutation of the conceptualistic thinking and in consonance with the functional thinking accepted by the House of Lords in Ridge v. Baldwin (1964 AC 40) (supra). Those observations are meant to hold that whenever acts of administrators adversely affect rights of persons obligation to follow the principles of natural justice would automatically attach itself to such acts of administrators and that such acts would be liable to be corrected by writs of certiorari for jurisdictional errors or errors of law. According to those observations, acts which are hitherto regarded under the spell of Lord Hewart's dictum as being administrative on the ground of statutory failure to provide for superadded duty to act judicially will now be treated as quasi-judicial. Those observations will not help the appellant. What is said above regarding the observations in Maneka Gandhi case : [1978]2SCR621 would equally apply to the earlier observations of Hegde J., made in Kraipak v. Union of India, AIR 1979 SC 150 to the effect that 'the dividing line between an administrative power and a quasi-0-judicial power is quite thin and is being gradually obliterated.' These are all observations that directly go against the appellant.

9. Yardley in his 'Principles of Administrative Law' Page 92 observed:

'It is a major achievement of the House of Lords in Ridge v. Baldwin (1964 AC 40) that the majority considered it no longer to be of any great significance to classify powers and duties as judicial, quasi-judicial or administrative.'

And run down the curtain on the Repot on Ministers' Power:

'Most judges will today rightly ignore the of Donoughmore Committee's classification, and stick to the common law presumption restated by Lord Reid in Ridge v. Baldwin.' (Page 95).

10. For the above reasons, we rejected the major and somewhat highly theoretical argument of the appellant in this case. Because the order of the authorised officer under section 3(4) of the Rent Control Act has serious consequences to the parties, we hold that the power of the authorised officer under that provision cannot be regarded as purely administrative.

11. There is also a statutory reason available to reject the appellant's argument. A careful reading of sec. 3 cl.(4) of the Rent Control Act would show that the power to release a building and terminate the tenancy is vested both in the Government and the authorised officer. But that power can be exercised by either of the authorities only as the instance of, and on the application of the landlord and not sue motu. It is inconceivable for the statute to provide for the release of the building at the instance of the allottee. Further, there is no power of appeal or correction provided against any order of release passed by one authority to the other. In other words, where a landlord obtains an order of release from the authorised officer, the statute treats that order to be final. The effect of these statutory provisions has been considered earlier by Chinnappa Reddy J., (as His Lordship then was) in Smt. E. Ramanujamma v. Govt. of A.P. (1969) 2 APLJ 99 (SN) and Madhava Reddy C.J., and Punnaiah J., in Mir Wahiuddin v. State of A.P. (1982) 2 Andh LT 3 (SN). Both the Benches had taken the view that the order of the authorised officer passed under section 3 cl.(4) of the Rent Control Act, cannot be revised or corrected by the Government. It is an accepted principle of law that where a public authority's power of decision arises only when a matter is referred to it for decision by a third party, then, when it has been given its decision on such a reference, it is not open to it to reconsider that decision, unless of course the statute so provides. (See Foulks''Introduction to Administrative Law', 4th Edn. Page 153.) Accordingly,we hold that both on principle and on authority, the Government has no jurisdiction to entertain the appellant's application.

12. Throughout this judgment we have examined the appellant's contention on the basis of an assumption that the appellant's application to the State Government should be treated as an application to review the order passed by the authorised officer. This assumption of ours ignores one of the arguments which has been advanced before us by the landlord which was that the appellant's application to the Government, cannot be treated as a review application, because a review application should be made only to the authority which made the original order. This argument of the landlord was accepted by the learned single Judge. We have not thought it fit to re-examine the correctness of this argument advanced by the landlord, because, in our opinion, an order passed by the authorised officer once if it were to be treated as a pure administrative order would have been held liable to be corrected by the State Government, whether in appeal or in revision or in review.

13. Now remains the last contention of the appellant for consideration. This contention , in substance, argues that the building in question would not have been legally released by the authorised officer from the purview of the Rent Control Act, because that building did not fall at the relevant time under the Rent Control Act. It was therefore argued that the act of release by the authorised officer should be quashed as being without the authority of law. To follow this argument of the appellant, one should note the vicissitudes of court litigation through which section 32(b) of the Rent Control Act went and the G.O.Ms.No.636 dated 29-12-83 made by the State Government , Section 32(b) of the Rent Control Act reads thus:

'The provisions of this Act shall not apply:-

(a) to any building owned by the Government;

(b) to any building constructed on or after the 26th August, 1957.'

14. The Rent Control Act is an Act which has been passed to regulate the leasing of private buildings and to control rack-renting and to prevent unreasonable eviction of tenants from those buildings. Normally the Rent Control Act should have applied to all the private buildings. But the legal effect of section 32(b) of the Act to statutorily exempt all those private buildings constructed on or after 26-8-57 from the purview of the Rent Control Act. With respect to those buildings which are statutorily so exempted, there is no obligation on the part of the landlords to notify the vacancies; nor there is any power in the State Government to requisition those private buildings. The landlords of those buildings are free to lease out or not to lease out their buildings or to lease them out subject only to such conditions and terms they may choose to impose. The entire burden of the Rent Control Act was thus thrown upon and was made to be borne only by those buildings constructed before 26-8-57. This was earlier challenged in this court. But the court upheld Sec. 32(b) of the Act. But in Motor General Traders Case, AIR 1984 SC 121 the Supreme Court has struck down section 32(b) of the Rent Control Act on the ground that the classification made by section 32(b) between the buildings constructed before 26-8-57 and those constructed after 26-8-57 was not a rational classification. The result of the judgment of the Supreme Court in the above mentioned case was to make all the buildings constructed, no matter whether they were constructed before 26-8-57 or after 26-8-57, subject to the provisions of the Rent Control Act. It is however, recognised that this result was capable of producing hardships, particularly in the case of those who constructed buildings after 26th August, 1957 giving full faith and credit to section 32(b) of the Act. While striking down section 32(b) of the Rent Control Act, the Supreme Court had, therefore, made the following observations, calculated to alleviate those hardships and to distribute the burdens equitably:

'We do realize the adverse effect of this decision on many who may have recently built houses by spending their life savings or by borrowing large funds during these inflationary days at high rates of interest, on the expectation and belief that they would not be subjected to the restrictions imposed by the Act. The incentive to build provides a rational basis for classification and it is necessary, in the national interest, that there should be freedom from restrictions for a limited period of time. It is always open to the State Legislature or the State Government to take action by amending the Act itself or under S.26 of the Act, as the case may be, not only to provide incentive to persons who are desirous of building new house, as it serves a definite social purpose but also to mitigate the rigour to such class of landlords who may have recently built their houses for a limited period as it has been done in the Union Territory of Chandigarh as brought out in our recent judgment in Punjab Tin Supply Co., Chandigarh v. Central Government (Writ Petns.Nos.9935-41,9943-44of 1982 etc. etc. decided on Oct.2, 1983:Reported in : [1984]1SCR428 ). The question whether new legislation should be initiated to exempt newly constructed buildings for a limited period of time on the pattern of similar legislation under taken by different States or to exempt such class of buildings, for a given number of years from the provisions of the Act by the issue of a notification under Section 26 of the Act is one for the State Government to decide.'

Subsequently,the State Government giving effect tot he judgment of the Supreme Court and particularly to the above observation made by it had issued under section 26 of the Rent Control Act G.O. Ms.No.636 dated 29-12-1983. That G.O.reads thus:

GOVERNMENT OF ANDHRA PRADESH ABSTRACT.

Acts - Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - New buildings with a rent of over Rs.1,000/- per month - exemption from the operation of the provisions of the Act - notification under section 26 of the Act - Issued -

GENERAL ADMINISTRATION (ACCOMMODATION) DEPARTMENT

G.O.Ms.No.636 Dated the 29th December , 1983.

ORDER:

The Supreme Court of India has in its judgment date 26-10-83 in Writ Petitions Nos.737 of 79,242 of 1980 5316, 3974 and 7902-03 of 1983 quashed clause (b) of section 32 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, declaring as unconstitutional. The Supreme Court in its judgment agreed that in the National interest there should be freedom from restrictions for a limited period of time after a building is constructed. The have stated that it is always open to the State Legislature or the State Government to take action by amending the Act itself or under section 26 of the Act, as the case may be, not only to provide incentive to person who are desirous of building new houses as it serves definite social purpose but also to mitigate the rigour to such class of landlords who may have recently built their houses for a limited period.

2. It has also been felt that the protection under the abovementioned Act is necessary only to the tenants belonging to middle class and lower middle class and that such protection is not necessary for tenants capable of paying higher rents. Considering all the above aspects the Government have decided to exempt all new buildings for a period of 10 years from the date of construction and all buildings with rent of more than Rs. 1,000/- per month from the provisions of the Act.

3. The following notification will be published in an extraordinary issue of the Andhra Pradesh Gazette.

NOTIFICATION

In exercise of the powers conferred by section 26 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (Andhra Pradesh Act XV of 1960). The Governor of Andhra Pradesh hereby exempts with effect on and from the 26th October, 1983 from the operation of the provisions of the said Act.

a) all buildings for a period of ten years from the date on which its construction is completed; and

b) buildings the monthly rent of which exceeds rupees one thousand.

Explanation: for the purpose of clause (a).

The construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to, or otherwise recorded by the local authority having jurisdiction and in the absence of any such report or record,the date on which it is actually occupied (not including occupation merely for the purpose of supervising the construction or guarding the building under construction) for the first time.

Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or occupied separately by the landlord and one or more tenants or by different tenants.

(By Order and in the name of the Governor of Andhra Pradesh)

G.V.Rama Krishna, Chief Secretary toGovernment.

The effect of the G.O. No.636 is to exempt every building from the purivew of the Rent Control Act for a period of ten years from the date on which its constructions are completed and all the buildings the monthly rent of which exceeds Rs.1,000/-. According to G.O.Ms.No.636, all the buildings would be free from the obligations of the provisions of the Rent Control Act only for a period of the first ten years and that thereafter those buildings will be brought within the purview of the Rent Control Act. But Rama Rao, J. in his judgment delivered in C.R.P.No. 3500/83 dated 22-2-84 reported in (1984) 1 APLJ (HC) 356 held that G.O.Ms.No.636 would not be applicable to the buildings constructed before 29-12-83. The effect of that judgment of Rama Rao, J. is that all those buildings which have been constructed before 29-12-83 would always be subject to the provisions of the Rent Control Act. They would not enjoy the ten-year liberty. G.O.Ms.No.636 would apply, according to the judgment of Rama Rao,J., only to those buildings which were constructed after 29-12-83.

15. Now the argument of the appellant was that the judgment of Ramarao J., in C.R.P. No.3500/83 was wrong and that G.O.Ms. No.636 should be construed as applying to all the buildings, including those which were constructed before 29-12-83. If that were to be so, the appellant argued, the building of Manian, the writ petitioner in this case, would also be subject to the provisions of the Rent Control Act only for the period of first ten years after the construction of that building was completed. Accordingly, it was argued, on the day when the authorised officer had passed the order of release, the building of Manian was not subject tot he provisions of the Rent Control Act.

16. We are of the opinion that the appellant's argument regarding the scope and meaning of G.O.Ms.No.636 is right and should be accepted. A perusal of the judgment of the Supreme Court in Motor General Traders case (AIR 1984 SC 121)(supra) would show that the Supreme Court has struck down S.32(b) of the Rent Control Act on the ground that the classification made in the matter of granting exemption was arbitrary and was not a valid classification. The judgment of the Supreme Court was founded on the basis that the incidence of statutory burdens imposed by the Rent Control Act should evenly be distributed. In Barbier v. Connolly (1884)28L.Ed.923 Field J., enunciated the rule of equal protection in these wards:-

'equal protection and security should be given to all under like-circumstances in the enjoyment of their personal and civil rights.....that no impediment should be interposed to the pursuits of anyone, except as applied to the same pursuits by others under life circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and conditions.'

In Exempting all the buildings constructed on or after 26-8-57 from the operation of the Rent Control Act while placing the buildings constructed before that date under the restrictions and control of the Act, the Rent Control Act has clearly violated the above salutary principle. While the post-August 1957 buildings bore the entire brunt of the statutory burdens, the pre-August '57 buildings totally went without sharing in the burdens. The Supreme Court noted that there can be no valid justification in applying the Rent Control Act to a building which is 27 years old, because it was constructed before August, 1957 and in not applying the Rent Control Act to another building which is 26 years old, because it was constructed after August,1957. It was for that reason, the Supreme Court had struck down section 32(b) of the Rent Control Act. We must immediately note that if G.O.Ms.No. 636 is interpreted as granting ten years exemption from the provisions of the Rent Control Act only to the buildings which were constructed after 29-12-83, that G.O. would on the same reasoning as was approved by the Supreme Court in Motor General Traders case (AIR 1984 SC 121)) becomes invalid, because it would then made a hostile discrimination against the buildings constructed before 29-12-83. The only difference then would be between the two crucial dates. For this reason alone, G.O.Ms. No.636 cannot be interpreted in the way Ramarao J., interpreted it. Further, there is no compelling reason why we should hold that G.O.Ms. No. 636 would not apply to the buildings constructed before 29-12-83, Section 26 of the Rent Control Act reads thus:

'notwithstanding anything in this Act, the Government may, by notification in the Andhra Pradesh Gazette, exempt, subject to such conditions and terms, if any, as they may specify in the notification, any building or class of buildings from all or any of the provisions of this Act.'

17. It amply authorises the State Government to make an order granting exemption to the buildings which were already constructed. The language used by section 26 of the Act is , 'any building or class of buildings.' The language is most apt to cover buildings which were already constructed. Strictly speaking, there can be no unconstructed buildings. The language, 'any building or class of buildings,' refers more to completed structures than to contemplated constructions. Section 26 of the Rent Control Act thus intends exemption to be granted to the buildings already constructed. We therefore find it impossible to construe G.O.Ms.No.636 as having application only to the buildings to be constructed after it was made on 29-12-83. In our opinion, the judgment of the Supreme Court in Income-tax Officer v. M.C. Ponnosse : [1970]75ITR174(SC) cannot lend any support to the view of Ramarao J., In interpreting section 26 of the Act which clearly authorises the granting of exemption to the buildings already constructed, that case can have no application. In that case, the Supreme Court was examining the question whether the parent Act authorised the making of subordinate legislation. Under section 26 of the Rent Control Act, no such question can arise. Above all, the observation of the Supreme Court above quoted from Motor General Traders'case (AIR 1984 SC 121) would clearly show that in the opinion of the Supreme Court the State Government not only can but is better advised to issue a notification like the one in G.O.Ms.No.636 in exercise of its power under section 26 of the Rent Control Act giving benefit of exemption for a limited period to the buildings already constructed. If the Supreme Court was of the view that the State Government did not enjoy the power under section 26 of the Act to grant exemption to a building already constructed, the Supreme Court would not have made those observations envisaging the possibility of the Government granting exemption to the buildings recently constructed by the landlords spending their life savings on the expectation and belief that those buildings would not be subject to the restriction imposed by the Rent Control ct. Obviously, the Supreme Court was referring in those observations to those buildings which were constructed on or after 26-8-57. We therefore find it impossible to hold that G.O.Ms. No.636 dated 29-12-83 would not apply to the buildings constructed before that date. Both on the High authority of the observations of the Supreme Court made in the Motor General Traders case (AIR 1984 SC 121), and also on the interpretation of the clear language of section 26 of the Rent Control Act, we hold that the State Government enjoys power of granting exemption to the buildings already constructed. We are also of the opinion that the intention of G.O.Ms. No.636, as can be gathered from its preamble and the operative language, is to grant exemption to all buildings for a period of ten years from the date of their completion, whether those buildings were constructed either before or after the issuance of G.O.Ms.636. We therefore hold that CRP.No.3500/83dated 22-2-84 reported in (1984)1 APLJ (HC) 356 was wrongly decided.

18. To the above extent we are in agreement with the appellant's contention. But from that conclusion, we cannot reach the further conclusion that the authorised officer has no authority to release the building. We cannot accept the appellant's argument that the building of the writ petitioner on the date of its release by the authorised officer was not within the purview of the Rent Control Act and that the authorised officer would not have made the order of release on 8-4-81. We may note that this argument was never before advanced by the appellant either before the authorised officer or before the learned single Judge. Factually, it is not shown at any stage of those long-winding proceedings that the building falls within the time span of ten years of exemption granted by the above G.O. Ms .No.636. For that, the appellant ought to have shown when the building was constructed . Even otherwise, we are of the opinion that the appellant was not entitled to rise this question and reap its benefits. The building in question was requisitioned under the provisions of the Rent Control Act and allotment has been made to the appellant under the provisions of the Rent Control Act and allotment has been made to the appellant under the provisions of the Rent Control Act. The appellant has been enjoying possession of the building for all those years by reason of the provisions of the Rent Control Act. Section 3 Cl.(4) of the Act under which the building has been so requisitioned and allotted to the appellant forms an inseparable part of a statutory scheme. It should not, therefore, be open for the allottee to enjoy the benefits of part of a section and denounce the conditions and terms imposed by the other part of the same section, subject to which he had been allotted the building. The acceptance of the argument of the appellant would mean that the requisitioning of the building and its allotment to the appellant and its occupation by him would all be illegal. Everything ends up in confusion and disorder. It should not be open for the appellant to raise such a contention under article 226 of the Constitution. We accordingly reject this argument of the appellant.

19. No other argument is advanced.

20. But before closing this judgment, we think it appropriate to advert to the conduct of the officials that forced Manian to come to this court.

21. Manina, the writ petitioner, is one of the two -and-half million and more inhabitants of this old, medieval, dilapidated none-too-good to live city of Hyderabad. Befitting his ordinary position in life, he made a moderate request to the Rent Control authorities to release his own building from the provisions of the Rent Control Act. All that he claimed for himself from the laws of the State is permission to move into and live in his own house. Under the law, the authority to which he made the application is legally competent to release his house for his occupation. That order was made about three years ago in April, 1980, and under law it was final, the day it was made. Yet he did not so far get possession of that building. Being a party to that order, the appellant ought to have vacated the building without procrastination. Additionally being a public official, he ought to have readily and willingly obeyed an order made by a statutory authority. But from the beginning the appellant has set himself against the law and defied and desecrated the statutory order. Without the slightest moral provocation or legal justification, the appellant has been openly defying the order of the authorised officer. He wrote on 5-5-81, on 14-5-81 and on 27-8-81 expressing his determination not to vacate the house. In his attempts to prevent Manian taking possession of his own house, the appellant even enrolled the illegal support of a State Minister and his Secretary. The State Minister and the Secretary ignored the law declared years ago on two separate occasions by this court to the effect that the orders passed by the authorised officer should not be meddled with by the State Government. The appellant persuaded the Minister and his Secretary to entertain his petition and stay eviction. He drove Manian to turn to this court as a last resort for judicial help. It is a sad commentary on the indifferent pattern of behaviour of our bureaucracy that an ordinary citizen without blame or fault and even with law wholly on his side should fail for three years to secure possession of his own house released in his favour by statutory authority. It is a matter for sorrow to see a helpless citizen suffering greatly and undeservingly at the hands of Minister and his Secretary and the appellant. Manian did no more to deserve this fate than to set law in motion. Only for that he was penalised. There is little in this highhanded conduct of the officials that can be commended. This conduct can by no means be called constitutional Sadachara. Instead of strengthening rule of law, it would greatly weaken it. It allowed to grow, this pattern of behaviour is sure to undermine the foundations of our nascent democratic institutions. In Olmstead v. United States (1928) 72 L Ed.944, Mr. Justice Brande is foresaw these dangers to democracy arising out of unlawful official acts and warned against that situation in the following words:

'Decency, security, and liberty alike demand that Government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent, teacher. For good or for ill, the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.'

Recently, Mr. Justice Clark of the same Court, writing in Mapp v. Ohio (1961)6 Led 2d 1081 reiterated this warning in those words:

'Nothing can destroy a government more quickly than its failure to observe its own laws or worse, its disregard of the charter of its own existence.'

It may not be too late for the erring members of our permanent bureaucracy to realise the debilitating impact of their law defying acts on the fabric of our democratic policy. They should not fail to recognize their constitutional obligation to respect the rights of citizens of this Democratic Republic without reference to their wealth, influence or position. Particularly our bureaucracy should not be insensitive to the rights of the bottom layers of our society. They should not continue to be alienated from the weak and the humble to whom this earth belongs. They should realise that the rule of law set by our Constitution de-recognizes the bureaucratic supremacy and governmental superiority. Men may hereafter live in our Republic only on the basis of law and respect for mangranted, not as a member of a group as envisaged by Rouseeau, but as an individual as contemplated by Mill. We find the conduct of the State Minister and his Secretary and the appellant is highly blame worth and condemnable and is clearly actionable in law. We hope and trust that these officials would not repeat this conduct. The appeal failed and is accordingly dismissed with costs. Advocate's fee Rs.500/-.

22. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //