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Parmeshwar Dayal Vs. the Addl. Commr. and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 527 of 1961
Judge
Reported inAIR1964All7
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1), 3(3) and 7F
AppellantParmeshwar Dayal
RespondentThe Addl. Commr. and ors.
Appellant AdvocateS.N. Kacker and ;L.P. Naithani, Advs.
Respondent AdvocateS.C. Khare, ;Lalji Sinha, ;J. Swarup, ;S.K. Dhaon and ;Shanti Bhushan, Advs.
Excerpt:
tenancy - needs of tenant - sections 3(1), 3(3) and 7f of u.p. (temporary) control of rent and eviction act, 1947 - whether district magistrate's order permitting landlord to sue tenant for eviction valid - provisions do not require district magistrate to look into needs of tenant while permitting landlord - order of district magistrate does not suffer from any discrepancy and is valid. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is.....desai, c.j.1. mathur, j., has referred to a larger bench the question,'is the order of the district magistrate and also of the commissioner and the state government invalid simply because they did not take into consideration the needs of the tenant?'and this bench has been constituted to answer it. my answer to the question is emphatic 'no'.2. there was slight controversy on the question whether the commissioner considered the needs of the petitioner tenant, but we are not concerned with that controversy because the whole petition has not been referred to this bench. it will be for mathur, j., to decide whether the petitioner's needs were considered by the commis--sioner or not; we have to answer simply the question whether he was required to consider them.3. the question is with.....
Judgment:

Desai, C.J.

1. Mathur, J., has referred to a larger bench the question,

'Is the order of the District Magistrate and also of the Commissioner and the State Government invalid simply because they did not take into consideration the needs of the tenant?'

and this bench has been constituted to answer it. My answer to the question is emphatic 'No'.

2. There was slight controversy on the question whether the Commissioner considered the needs of the petitioner tenant, but we are not concerned with that controversy because the whole petition has not been referred to this bench. It will be for Mathur, J., to decide whether the petitioner's needs were considered by the Commis--sioner or not; we have to answer simply the question whether he was required to consider them.

3. The question is with reference to the jurisdictions to be exercised by the District Magistrate, the Commissioner and the State Government under section 3 (1), 3 (3) and 7-F respectively of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The petitioner is a tenant since 1942 of a house which has now been purchased by opposite party No. 5 (to be referred to as 'the opposite party', or 'the landlord'). The house is admittedly governed by the U. P. (Temporary) Control of Rent and Eviction Act (to be referred to as 'the Act'). The law before the Act was enacted was that contained in the Transfer of Property Act. Under it the landlord has absolute right to terminate the tenancy of the petitioner by a simple notice to quit without assigning any reason for requiring him to quit and to file a suit for his ejectment if he did not deliver possession on the termination of his tenancy.

In a suit for ejectment by him the Court was simply concerned with the question whether the tenancy had been terminated or not and any question as to the need of the landlord to get the house vacated by the tenant, or of the need of the tenant to occupy the house, was wholly irrelevant. The tenant had a right to remain in possession only so long as he was a tenant. For now long he was to be a tenant was a question left entirely at the discretion of the landlord, unless there was some term to the contrary in the contract of tenancy. If the tenant wanted to restrict the landlord's right to terminate his tenancy except on efflux of a certain period of time, or except on the happening of a certain event, it was for him to have this restriction incorporated in the contract of tenancy. Otherwise the landlord as the owner of the property had the right to terminate the tenancy at any 'time. Once the tenancy was 'terminated the tenant was left with no right to remain in possession and the landlord was entitled to file a suit for his ejectment. The tenant could not resist his ejectment on the ground that the landlord did not need the house for his own purpose, or that he himself was unable to procure another house for his own purpose, or that he himself was unable to procure another house for occupation.

4. The above law was changed by the Act which came into force in 1947. The object of the Act was, as stated in the statement of objects and reasons -

'To provide ..................... of powers to control the letting ............... of residential .........accommodation and to prevent the eviction of the tenants therefrom.'

It is stated in the preamble that

'due to shortage of accommodation ...............it is expedient to provide for the continuance ......of powers to control the letting ............... of suchaccommodation and to prevent the eviction of tenant therefrom.'

Therefore all the restrictions that are imposed on the Landlord's right to eject his tenant are those contained in the Act itself. His right is not subject to any restriction, not expressly or even impli-edly contained in the Act. One cannot question his right to eject a tenant unless one relies Upon an express or implied provision in the Act.

Section 3 (1) of the Act provides that

'Subject to any order passed under Sub-section (3) no suit shall, without The permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation' except on one or more of the following grounds.'

In the present case the respondent did not rely upon any of the grounds mentioned in this provision for filing a suit for the petitioner's eviction; he relied upon a permission obtained from the District Magistrate. He first applied to the District Magistrate for permission stating the circumstances and claiming that they established that he was in genuine and urgent need of the house for his own residence. He did not make any allegation against the petitioner. The District Magistrate issued a notice to the petitioner and he objected to permission being granted. In his written statement he disputed the facts mentioned by the opposite party and pleaded that he has a big family, that his eviction would amount to gross hardship and inconvenience to him and his family and that the balance of convenience lay on his side. By a long reasoned order the District Magistrate granted the permission. He went into the question of the opposite party's need, observed that he had to 'mainly consider, whether the need of the applicant is genuine or not' and held that the opposite party's need was genuine.

5. Section 3 (2) gives a right to a tenant to apply to the Commissioner to revise the District Magistrate's order granting permission to evict him and the petitioner appealed. Section 3 (3) provides that the Commissioner

'shall hear the application made under subsection (2) ............... and he may ............ alter or reverse his order, or may make such other order as may be just and proper.'

In his petition for revision the petitioner contended that the need of the opposite party was not genuine and that the needs of the parties should have been compared properly. The Commissioner heard counsel of both the parties, found that the opposite party's need was genuine, recorded an express finding that the petitioner's need was not greater than his and dismissed the application for revision.

6. Section 7-F lays down that

'The State Government may call for the record of any case granting ......... permission for the filing of a suit for eviction referred to in Section 3 ............ and may make such order as appears to it necessary for the ends of justice.'

The petitioner moved the State Government in writing to exercise the power conferred upon them by this provision and to cancel the order granting permission and the opposite party instituted a suit for the petitioner's ejectment. The opposite party did not institute a suit earlier because he was restrained from doing so by an order of stay issued by the Commissioner after he had entertained the petitioner's application under Section 3 (2). The State Government rejected the petitioner's application made under Section 7-F and then the petitioner filed the instant petition.

7. Neither Sub-section (1), nor Sub-section (3) of Section 3, nor Section 7-F lays down how the District Magistrate, the Commissioner and the State Government are to decide whether permission should be granted to a landlord for filing a suit for his tenant's eviction. Absolutely nothing has been laid down in any of the three provisions for their guidance and evidently the matter has been left at their absolute discretion. Nothing that they do or do not do when deciding whether to grant permission or not can be said to be against law. None of the three provisions requires the authority concerned to consider the tenant's need. This was conceded by Sri S. N. Kacker, but he contended that it is an implied requirement. I am unable to find any provision in the Act from which the requirement that the authority concerned should consider the need of the tenant or should balance it against the landlord's need can be implied.

8. Sri Kacker relied upon the statement of objects and reasons and the preamble, but they do not contain any reference, even implied, to a landlord's being permitted to evict his tenant, because the Act was enacted to prevent eviction of tenants, it cannot be contended that it was enacted to provide that a tenant should not be evicted unless he has placed himself in the wrong and thereby made himself liable to eviction, or his need is not so great as the landlord's. When a landlord wants to evict his tenant he does so either because he himself requires the accommodation either for own occupation or for letting it out to another tenant, or for leaving it vacant for a certain purpose, or because the tenant has annoyed him and he does not desire to let him remain his tenant any longer. That the tenant does not need the accommodation is in practice not the ground for a landlord's desiring to evict him; so long as he goes on getting rent from him, it does not matter to him whether he really needs the accommodation or not. If he himself does not need the accommodation and if the tenant has not given him a case for his wishing to get rid of him he would have no reason whatsoever to seek to evict him. Therefore, even if the tenant has no need for the accommodation the landlord does not seek to evict him.

The object behind the Act was not to prevent eviction of tenants but to provide for powers to prevent eviction of tenants. It was through the provisions contained in the Act that powers to prevent eviction of tenants were to be granted; in other words, eviction was to be prevented only in the manner laid down in the preventions. Neither the statement nor the preamble by its own force could, or did, prevent eviction of tenants. Moreover the Supreme Court has ruled in Jialal v. Delhi Administration, AIR 1962 SC 1781 that a statement of objects and reasons is not admissible for construing the statute. Therefore, one must consider the provisions of the Act itself without reading more in them for ascertaining to what extent eviction of tenants is prevented. It cannot be contended that eviction of tenants is not prevented by interpreting Section 3, Sub-sections (1) and (3) and Section 7-F to mean that the authority concerned can grant permission for eviction of a tenant without paying any regard to his need or balancing it against the landlord's need. Eviction of tenants is permitted in certain circumstances and obviously the intention of the legislature was to prevent reckless eviction of tenants. The necessity for the enactment arose from the shortage of accommodation giving rise to reek renting. The main intention was to provide for the availability of accommodation on reasonable terms and to prevent eviction of tenants for the object of letting out the accommodation at an unreasonably higher rent.

The Act was not aimed primarily at making accommodations available to needy persons; it does not contain any provision to compel a landlord to vacate his house or get it vacated for being let out to a needy person; whatever compulsion it imposes is, when the house falls vacant. The Act makes an accommodation available to a needy person in two ways: (1) when it is vacant, by calling upon the landlord to let it out to a particular person who needs it, and (2) when it is already occupied by a tenant, by preventing his eviction, except on a certain ground, or with the District Magistrate's permission. When an accommodation falls vacant and the landlord and another person desire to occupy it, the District Magistrate has to decide which of them should be allowed to occupy it. He occasionally balances their needs and rejects the landlord's application if he finds the tenant's need greater. In this petition we are not concerned with the legality or propriety of his doing so, but, though he rejects the landlord's application and allows the other person to occupy it, mostly he does it on the ground that the landlord's need is not real or urgent. If the law were that he should decide the dispute on the basis of balance of convenience or need, after having allowed the other person to occupy on the ground that his need is greater than the Landlord's, he would not be justified in granting the permission to the landlord to evict him after a short time on the ground solely of his own need. The legislature could not have intended that he should allow an accommodation to be occupied by a tenant and then immediately give landlord permission to evict him.

If in a contest between the landlord and another person he allows the other person to occupy the accommodation on the ground that his need is greater, he cannot allow him to be evicted on the simple ground that the landlord has a need, even though it is smaller. But the law is not that when an accommodation is desired by the landlord and another person it should be allotted to him whose need is greater. There is nothing in Section 7, under which he passes an order, to suggest that he will decide the dispute on the balance of needs. Rule 6 of the rules framed by the State Government in exercise of the powers conferred by Section 17, makes it clear that he should permit the landlord to occupy the accommodation, if he, bona fide, needs it for his personal occupation. Though the word used in the rule is 'may' it has the force of 'shall', because the rule was hot required at all to enable the District Magistrate to permit the landlord to occupy it. If the Landlord needs the accommodation the needs it if he in fact i. e., 'bona fide' needs it) he must be allowed to occupy it, and this is consistent with the view that his need is not to be balanced against the other claimant's and is not to be refused on the ground that the other claimant's need is greater.

Therefore the view that a landlord should be granted permission to evict his tenant if he needs the accommodation for his own personal occupation is in conformity, and not inconsistent, with Section 7 and Rule 6 which deal with control of letting. Control of eviction is intimately connected with control of letting and the provisions dealing with them should harmonise with each other. Just as a person who is allowed to occupy an accommodation as a tenant should not be allowed to be evicted unless he has rendered himself unfit for tenancy, so also a landlord who needs the accommodation for his own occupation should not be refused permission to evict his tenant on the ground that the tenant needs it more than him. If he would have been entitled to be allotted the accommodation under Rule 6, if it had been vacant, he should be permitted to evict the tenant.

9. The only restriction placed by the Act upon a tenant's eviction is that he cannot be sued for eviction without the District Magistrate's permission; no further restriction such as that the District Magistrate should not give permission unless the landlord's need is greater than the tenant's can be read in Section 3 (1). The Act is a restricting one and should be interpreted as such; it should not be interpreted to impose a greater restriction than it expressly or by necessary implication does. No restriction that cannot be implied from the language used in the provisions can be read in the Act. Evidently the legislature expected that the provision that the District Magistrate's permission should be obtained for suing a tenant for eviction was a sufficient safeguard against reckless eviction of tenants or eviction of tenants for reek-renting.

10. It has been settled that a District Magistrate when granting or refusing permission, referred to in Section 3 (1), acts as an administrative authority. It is immaterial if the decisions to this effect were given when Sub-section (3) did not exist and the Commissioner had no revisional jurisdiction. Whether an order is an administrative of judicial order depends upon its own nature and not upon whether an order passed by another authority revising it is administrative or quasi judicial. If a District Magistrate's order granting or refusing permission was administrative before there existed any provision for its revision, it does not become quasi-judicial now that there is a provision for its revision. A District Magistrate acts not only not judicially but also not quasi-judicially. Prior to the enactment of the Act a landlord did not need any permission from a District Magistrate for suing his tenant for eviction; he had the absolute right to sue him. The Act has not conferred any right upon a tenant to object to the permission, being granted or to any immunity from being permitted to be evicted. When Section 3 (1) does not lay down in what circumstances a District Magistrate may grant permission or in what circumstances he may refuse permission, the provision in Section 3 (1) does not confer any right whatsoever upon a tenant; it does not confer upon him any immunity from being permitted to be ejected, or any right to object to permission being granted.

Therefore, no rights are determined when a District Magistrate grants or refuses permission; he only considers circumstances, which he thinks fit to bo considered, and grants or refuses permission according to the circumstances which he thinks to be controlling. Therefore, so long as he considers circumstances which he thinks relevant and his order granting or refusing permission is in consonance with the circumstances found by him, his order cannot be said to be without jurisdiction or against the provision of Section 3 (1). Even if it be said that it is necessary for a District Magistrate to hear the tenant before permiting the landlord to sue him for eviction, it does not follow that the tenant has a right to object on the ground that he needs the accommodation, or that he needs it more than the landlord. After all the landlord is the owner of the accommodation and is under no duty to allow it to be occupied by a needy person. The law has imposed no duty upon an owner of an accommodation to make it available to a needy person. Consequently, no person has a claim upon an accommodation merely on the ground that it is needed by him. He has all the less a claim on the ground that his need is greater. There was absolutely no question of comparing his need with the landlord's before the Act was enacted and there is nothing in the provisions of it to suggest that a District Magistrate has to compare the needs before permitting a landlord to sue the tenant for eviction.

When the landlord and the tenant are not on equal terms, because one is the owner having a right to do what he likes and is under no obligation to meet requirements of needy persons, and the other, even though a needy person, has no claim upon the landlord or the accommodation, there could not possibly arise any question of comparing their needs. Section 3 (1) has not made this a question to be considered by a District Magistrate either expressly or by necessary implication. One would look in vain for any words in the Act suggesting that a District Magistrate must consider the tenant's need before permitting him to be evicted.

11. None of the provisions under consideration requiring the authority concerned to give reasons for its order granting or refusing permission for eviction of a tenant. If it is not required to give reasons for its order, it means that its failure to give reasons does not vitiate it. If the failure to give reasons cannot vitiate it, the failure to consider a certain circumstance cannot vitiate it (unless it is expressly required to consider it). So long as an order is based on a rational ground it cannot be quashed by a certiorari and the existence of the landlord's need is a rational ground. In some cases it has been held that a Commissioner acting under Section 3 (3) acts quasi-judicially because he is to be satisfied about the correctness, legality or propriety of the District Magistrate's order and if, therefore, he has to give reasons for his order, it does not follow that a District Magistrate must give reasons for his.

12. That a tenant continues to occupy the accommodation and refuses to surrender his tenancy rights on account of which the landlord is obliged to seek permission for his eviction is itself proof of the tenant's need. If still the landlord can be permitted it means that he is permitted in spite of the tenant's need. Thus Section 3 (1) contemplates a District Magistrate's permitting a landlord to sue for evicting his tenant notwithstanding the latter's need. It is to be noted that a landlord requires permission only for suing his tenant for eviction and not for terminating his tenancy. The question of suing a tenant for his eviction, arises after his tenancy has been terminated in accordance with the provisions of the Transfer of Property Act. If on the tenancy being terminated the tenant gives up possession to the landlord, there is no necessity for the latter's suing him for eviction. If the tenant has done certain wrong acts enumerated in Section 3 (1) itself, the landlord can sue him for eviction without any permission from the District Magistrate. He needs permission in other cases and the most obvious other case is when he needs the accommodation for own occupation. He is to be granted permission not as a penalty to a tenant, who had placed himself in the wrong, but in recognition of his right to evict him for sufficient cause. Before the enactment he had a right to evict him for a rational cause as well as without a rational cause; by enacting Section 3 (1) the legislature took away his right to evict him without a rational cause and retained his right to evict him after satisfying the District Magistrate that he has a rational cause. All that a District Magistrate needs for permitting a landlord to evict his tenant is a rational cause.

13. In Shri Krishna v. Addl. Commr., Allahabad 1958 All LJ 234 Mehrotra, J., while considering that a District Magistrate acts administratively under Section 3 (1) observed that the District Magistrate 'has to consider ......... the points of view of both the landlord and the tenant and to grant relief after such a consideration' and that it cannot be said that he 'has not to consider the need of the tenant or inconvenience to him at all.' With great respect I am unable to agree for the reasons given above, which have not been considered by him. In Majecd Uddin v. Ghulam Hasnain Naqvi, 1961 All LJ 32, Mootham, C. J., observed with reference to Section 3 (1):-

'The section however lays down no guide as to how or on what principles the District Magistrate should exercise this discretion; but that does not mean that his power is unfettered or uncontrolled, (p. 33) ........................... it is the duty of the District Magistrate ............... to weigh the respective claims ofthe landlord and the tenant and then to grant or refuse permission.' (p. 34).

With great respect I disagree with the latter observation. The learned Chief Justice said at p. 34 that if the District Magistrate acts in good faith and is not shown to have misdirected himself as to the purpose of the Act his decision cannot successfully be questioned in the High Court. Considering the tenant's need is riot an essential element of his acting in good faith and his failure to do so does not result from his misdirecting himself as to the purpose of the Act, because the Act nowhere requires him to consider it. The Act has imposed a restriction upon the landlord's right to sue the tenant for eviction in accordance with its object, but placing a restriction upon a District Magistrate's right to grant or refuse permission is not one of the objects behind the Act. The Act was not enacted to restrict a District Magistrate's power. It itself created the District Magistrate's power and, if it wanted to restrict it, it would have restricted it by using appropriate words. Giving unrestricted power to him was as much a restriction upon a landlord's right as giving him a restricted power; so it could not be said as a necessary implication that it was the object behind the Act itself to confer a restricted power upon a District Magistrate.

14. One of us in Civil Misc. Writ No. 2576 of 1961 (Sunder Lal Kapoor v. Kishori Lal), D/-1-12-1961 (All) observed that if a landlord is able to satisfy the District Magistrate about the genuine need, it does not mean that the District Magistrate is bound to grant permission and that he has to weigh the requirements of the landlord and the tenant. The question whether a District Magistrate is bound to grant permission on being satisfied about the landlord's need is not directly before us but with great respect I am unable to agree that the District Magistrate is bound to weigh the requirements of the landlord and the tenant.

15. In Dr. J. R. Bhatia v. Smt. Victoria Rani Sahiba, 1957 All LJ 257 : ( (S) AIR 1957 All 359) Mehrotra, J., said at p. 261 (of All LJ) : (at page 361 of AIR) that if an order is based on a finding of fact without sufficient opportunity having been given to a party whose rights are affected by it to meet the allegations of fact, it is in violation of the principles of natural justice. There is no question of violation of any right of the tenant when permission is given to Ms landlord to sue for his eviction; he has no absolute immunity from eviction. If a permission is given he has no immunity 'and he has no right against permission being granted. His right against being evicted must be distinguished from a right claimed by him against permission being, granted; he possesses the former but not the second right. Granting permission for eviction is, therefore, no violation of any right of his and there is no question of infringement of the principles of natural justice when permission to sue for his eviction is granted without his being heard. At the same page the learned Judge observed that the object behind the Act is to regulate eviction of tenants, but as I said above eviction of tenants is regulated only through the provisions of the Act and not by a mere declaration that it is the object behind the Act. The only manner in which eviction is restricted is by the requirement that no suit can be filed without the District Magistrate's permission for eviction of a tenant. The learned Judge further observed on the same page that -

'it will be going beyond the very object of the Act and defeating its purpose if powers were given to the Rent Control and Eviction Officers to grant or refuse permission on their sweet will un-guided by the rules of conduct laid down in the Act itself. In this view of the matter it cannot be said that Section 3 of the Act gives unfettered and unguided powers to the Rent Control and Eviction Officer.'

No rules of conduct have been laid down in the Act itself to guide a District Magistrate's discretion; if this does result, as observed by the learned Judge, in going beyond the very object of the Act and defeating its purpose, it is done by the Legislature itself. If the Legislature goes beyond its object or enacts a provision defeating its purpose, it is no concern of a Court. It was not essential for the Legislature, in order to ensure that its object will not be defeated, to lay down rules in Section 3 (1) to regulate the discretion of a District Magistrate; it could trust him to exercise his discretion wisely. It was also not feasible to lay down exhaustive rules to guide his discretion. The matter had to be left to the sound judgment of District Magistrates. When no guidance is given at all in Section 3 (1) I do not understand how it can be said that it does not give 'unfettered and unguided powers'. The learned Judge in that case cancelled the permission granted by a District Magistrate, even though he had explained why he had granted permission. With great respect to the learned Judge I consider that the permission could not be cancelled.

16. Our attention was drawn to Sahab Uddin v. Mohan Lal, 1951 All LJ 722 : (AIR 1951 All 227) and Smt. Narain Devi v. Hakim Mohd. Amin, 1954 All LJ 291 : (AIR 1955 All 259) in which it was said that the Act was enacted primarily for the benefit of tenants; this is the statement, objects and preamble and I have already dealt with what they mean and how far they can be used for interpretation.

17. The view that I take is supported by Chiman Lal v. Banwari Lal, Civil Misc. Writ No. 1288 of 1957, D/- 10-10-1958 and summarily reported in 1959 All LJ (Summary of Cases) 87, where Tondon, J., said that a landlord should be permitted to evict his tenant from an accommodation when he needs it for own occupation. In Anand Krishan Rastogi v. Rent Control and Eviction Officer, Special Appeal No. 342 of 1959, D/- 8-10-1959 (AH) Raghubir Singh. v. State of U. P. Special Appeal No. 159 of 1960 D/- 31-3-1960 (All) and Phool Chand Gupta v. Additional District Magistrate, Allahabad Special Appeal No. 165 of 1962 D/- 26-2-1962 (All) it was held that a District Magistrate is not required to consider the tenant's need. In Ram Gopal v. Ram. Kumar, 1962 All LJ 533 Jagdish Sahai, J. with, whom Mukerji, J. concurred stated as follows :

'. . . . there can never be any exhaustive enumeration of the circumstances in which the District Magistrate could be expected to act and, therefore, to our mind, the Legislature intentionally refrained from doing so. ... That the orders passed under Section 3 of the Act are administrative has been several times held by this Court. It is well established that the only ground on which an administrative order can be avoided is of mala fides (p. 537).....the District Magistrate or the Commissioner or the State Government have to take all the relevant matters into consideration while deciding the case and - that would also include the question whether or not the accommodation is genuinely required by the landlord.... we find it difficult to hold as a rule of the law that the needs of the landlord and the tenant have got parity and should be weighed in golden scales. It appears to us that in case a landlord makes out a clear case of personal requirement of the accommodation the District Magistrate or the Commissioner or the State Government would have, if other difficulties do not supervene, to give him permission irrespective of the need of the tenant. . . .' (p. 538).

These observations more or less support my view. In Virendra Swarup Johari v. State of Uttar Pra-desh, 1962 All LJ 672 Srivastava and Bishambhar Dayal, JJ., laid down that the discretion given to a District Magistrate under Section 3(1) is absolute and that he acts administratively when granting or refusing permission. Reference may also be made to Narrottam Saran v. Government of U. P., AIR 1954 All 232 where Raghubar Dayal and Bhargava, JJ. refused certiorari to quash permission granted by a District Magistrate under Section 3(1) and said with reference to Section 3(1) :

'The section nowhere lays down what considerations the District Magistrate should bear in mind in dealing with an application praying for permission to file a suit for evicting a tenant. It does not lay down what procedure he should follow. He is not required to make any kind of enquiry and then to determine the matter in view of certain considerations ....... he cannot be said to be acting in a quasi-judicial capacity.'

This decision has not been considered in many of the authorities in which the contrary view has been taken.

18. The reference may be returned to Mathur, J. with answer in 'no' to the question.

Oak, J.

19. The question referred to the Full Bench is :

'Is the order of the District Magistrate and also of the Commissioner and the State Government invalid simply because they did not take into consideration the needs of the tenant ?'

20. The reference has arisen out of a writ petition, in which certain orders passed in a proceeding under Section 3 of the U. P. (Temporary) Controlof Rent and Eviction Act, 1947 (hereafter referred to as the Act) have been challenged. An order passed by a District Magistrate under Section 3 of the Act is an administrative order. Wide discretion has been given to the District Magistrate in deciding the question whether a landlord should be given permission to file a suit against a tenant for his eviction. That does not, however, mean that the District Magistrate can act arbitrarily. Under Sub-section (3) of Section 3 of the Act, the Commissioner may make such order as may be just and proper. Under Section 7F of the Act, the State Government may make such order as appears to it necessary for the ends of justice. Such an expression is not to be found in Sub-section (1) of Section 3. Nonetheless, the District Magistrate should be deemed to be under a similar restriction. The issue before each of the three authorities is :

'Is it just and proper that the landlord should be permitted to file a suit for the tenant's ejectment ?''

21. Sub-section (r) of Section 3 does not lay down any principle for deciding the issue. We can, however, obtain some guidance from the preamble of the Act. According to the preamble, one of the objects of the Act is to prevent the eviction of tenants. The authorities must, therefore, prevent the eviction of the tenants in proper cases. Section 3 contemplates that permission to file a suit for the tenants ejectment may be granted in certain cases. If Section 3 is read in the light of the preamble of the Act, the true position appears to be this. In certain cases permission should be granted. But in certain cases permission should be refused.

22. The question whether in a' particular case the landlord should be permitted to file a suit for the tenant's eviction cannot be satisfactorily disposed of, unless the authorities take into consideration the requirements of both the parties. It is for this reason that the authorities have to take into consideration the needs of the tenant along with the landlord's needs. It is not possible for this Court to enumerate the circumstances in which permission should be granted or refused. An indication may be given as regards the broad principle. If the landlord badly needs the house for personal occupation or some such use, permission should be granted. On the other hand, if the tenant's eviction is likely to bring great hardship to him, permission should be refused.

23. If the authorities grant permission to the landlord without considering the tenant's need, the decision would be arbitrary and, therefore, improper. Such an order does not contravene any specific provision of the Act. But there would be violation of the spirit of the Act. The authorities have, therefore, to take into consideration needs of both the parties. Although it is not proper to grant permission to a landlord without considering the tenant's needs, such an order is not illegal. It should not be supposed that, such an order is void or inoperative. The order is effective, until it is set aside in appropriate proceedings.

24. On going through the orders passed by respondents Nos. 1 and 2 in the present case, 1 find that both of them considered the 'tenant's needs. If the authorities concerned considered the tenant's needs, the question referred by the learned Single Judge to the larger Bench would not arise. However, it is open to the learned Judge to take the view that, respondents Nos. 1, 2 and 3 or some of them did not take the tenant's needs into consideration. In that case he will have to decide whether he should interfere with the order, which is improper and yet not invalid. The point whether this Court in its writ jurisdiction can or should interfere with an order, which is improper but not invalid, is not covered by the question referred to us. I, therefore, express no opinion on that point.

25. My answer to the question referred to the Full Bench is as follows:

'It is not proper for the District Magistrate of the Commissioner or the State Government to grant permission to a landlord to file a suit against a tenant for his eviction without taking the tenant's needs into consideration. But such an order is not invalid.'

S.D. Singh, J.

26. I agree that the following question:

'Is the order of the District Magistrate and also of the Commissioner and the State Government invalid simply because they did not take into consideration the needs of the tenant?'

which has been referred to the Full Bench, should be answered in the negative.

27. Section 3 of the U. P. Temporary Control of Rent and Eviction Act (to be referred to hereafter as the Act) places a restriction on the otherwise unrestricted right of the landlord to evict his tenant. He can evict him only if any one of the grounds specified in clauses (a) to (g) of Sub-section (1) of Section 3 of the Act exists, or if he is able to obtain the permission' of the District Magistrate for evicting the tenant. Neither Section 3 nor any other provision in the Act lays down the circumstances under which the District Magistrate may grant permission to the landlord to evict his tenant. The Legislature has, therefore, left it to the District Magistrate to decide under what circumstances such permission, having due regard, of course, to the objects of the Act, may be granted. If the intention were that the tenant should be ejected only under certain additional specified circumstances, the easiest and the simplest thing for the Legislature would have been to add a few more clauses in Sub-section (1) of Section 3, instead of making provision for the permission of the District Magistrate, or even to specify under what circumstances such permission should be given. When, instead of adopting that course, the Legislature, in its wisdom, merely authorised a suit for eviction of a tenant being filed with the permission of the District Magistrate, the intention obviously was that the District Magistrate alone would judge the circumstances under which permission may be granted, though one may believe that the Legislature has presumed that the District Magistrate will not exercise his otherwise unfettered discretion arbitrarily, capriciously or maliciously.

28. As was pointed out by Jagdish Sahai, J., in 1962 All LJ 533, there cannot be an exhaustive list of all the circumstances in which a District Magistrate may permit a landlord to file a suit for the ejectment of the tenant or refuse such permission and Sub-section (1) of Section 3 of the Act does not prescribe the manner in which the District Magistrate is to exercise or regulate his discretion under one or the other of these circumstances. The Legislature has trusted him in respect of the exercise of his discretion under this section.

29. Where a revision is filed before the Commissioner under Sub-section (2) of Section 3 of the Act, Sub-section (3) provides that the Commissioner shall hear the application and that he may alter or reverse the order passed by the District Magistrate or make such other order as may be just and proper. Section 7-F of the Act also entitles the State Government to call for the record of the case relating to the grant of permission or refusal to grant permission and to make such order as appears to it necessary for the ends of justice. When the Commissioner is expected to pass an order, which may be regarded by him to be just and proper, or when the State Government is allowed to interfere with the order of the District Magistrate or that of the Commissioner only in the ends of justice, one may expect that even the order, which is to be initially passed by the District Magistrate, should be just and proper or would be one which may meet the ends of justice, as otherwise it would be liable to be revised by the Commissioner in one case or the State Government in the other. It appears to me, therefore, that this is the only overall guidance provided by the Act. for the exercise of his discretion by the District Magistrate under Sub-section (1) of Section 3 of the Act. But even this consideration does not necessarily lead to the inference that the discretion under Sub-section (1) aforesaid should be exercised by the District Magistrate in any particular manner under any given set of circumstances.

30. Even though there is nothing in Sub-section (1) of Section 3 to indicate that the needs of a tenant should be taken into consideration by the District Magistrate in passing his orders, such needs as also the needs and requirements of the landlord, would normally be taken into consideration by him, but it would in my opinion be going a little too far if it is laid down as a rule of law that he must in every case not only take the needs of the landlord and the tenant into consideration, but should even weigh them with a view to judge whose needs and requirements were greater, The District Magistrate may in some cases take the needs of both of them into consideration, judge their comparative merits and decide in favour of one whose need is greater. But he may in any other case he impressed by the needs of one without even taking the needs of the other into consideration; and if an order is passed by him under such circumstances it would be as such a proper and valid order -- an order in his exclusive jurisdiction -- as an order passed after weighing the comparative needs of the two. I do not, therefore, find it possible to agree with the view expressed by Mehrotra, J., in 1958 All LJ 234 that the District Magistrate should consider the needs of the tenant or inconvenience which may be caused to him or with that expressed by Mootham, C. J., in 1961 All LJ 32 when he said that it was the duty of the District Magistrate to weigh the respective claims of the landlord and the tenant and even to grant or refuse permission. I would not even agree with the view taken by Jag-dish Sahai, J., with whom Mukherji, J., concurred, in 1962 All LJ 533 when it was said:

'It appears to us that in case a landlord makes-out clear case of personal requirement of the accommodation the District Magistrate or the Commissioner or the State Government would have, if other difficulties do not supervene, to give him permission irrespective of the need of the tenant ......'

31. The District Magistrate is no more bound to grant permission for the ejectment of the tenant if he finds that the landlord needs the accommodation for his personal requirement, then to refuse such permission if he finds that the requirements of the tenant were genuine. The District Magistrate may refuse to grant permission to the landlord to eject his tenant even though he finds that 'the landlord requires the accommodation for his personal requirements or that his needs are genuine; and he may permit the landlord to eject the tenant even if the needs of the tenant are pressing and genuine. In fact it could be said almost in every case that the needs of a tenant are pressing and genuine for if he is living in a rented house, he would need that accommodation unless it is found that he is retaining possession over the accommodation merely out of fun; and if his needs are attacned any importance in the consideration of the question whether or not the landlord should be permitted to eject the tenant, it would be difficult to find a case in which the District Magistrate may permit the landlord to eject him.

32. As has been pointed out by me earlier, the Legislature has placed no restriction in Sub-section (1) of Section 3 as to the manner in which the District Magistrate shall exercise his discretion or as to the manner in which the discretion will be exercised by him under a given set of circumstances. The inference is that the Legislature has left it to the discretion of the District Magistrate himself. He is to exercise his discretion in such manner as he thinks proper, subject only to the jurisdiction of the Commissioner under Sub-section (3) and that of the State Government under Section 7-F to revise his orders. It is to my mind, therefore, clear that it is not permissible for the Courts to sit in judgment over the exercise of discretion by the District Magistrate and judge as to whether under certain set of circumstances the discretion was properly exercised by him. This is almost exactly the view taken by Raghubar Dayal. and Bhargava, JJ., in AIR 1954 All 232, when they said:

'The section nowhere lays down what consideration the District Magistrate should bear in mind in dealing with an application praying for permission to file a suit for evicting a tenant. It does not lay down what procedure he should follow. He is not required to make any kind of enquiry and then to determine the matter in view of certain considerations ......... he cannot be said to be acting in a quasi-judicial capacity.'

33. Even Tondon, J., went a little too far in Civil Misc. Writ No. 1288 of 1957, reported in 1959 All LJ (Summary of Cases) 87, when he said that a landlord should be permitted to evict his tenantfrom his accommodation when he needs it for ownuse. This also amounts to placing a restriction onthe exercise of discretion by the District Magistrate. The discretion of the District Magistrateunder Sub-section (a) of Section 3 is unfettered,circumscribed by the only consideration that if itis not just and proper or not one which aims tomeet the ends of justice, it may be interfered withby the Commissioner under Section 3 (3) or bythe State Government under Section 7-F. And ifthe District Magistrate was not bound to takeinto consideraion the needs of the tenant, or tocompare them with those of the landlord, even theCommissioner or the State Government were notbound to do so.

34. The other reported or un-reported decisions of this Court, having a bearing on this question, have been noticed by my lord the Chief Justice, and I have nothing further to add in respect of them. I agree that the question referred to the Full Bench be answered in the negative,

35. BY THE COURT. In accordance with the majority view our answer to the question referred to us is 'No'. We direct that the reference be returned to Mathur, J., with this answer


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