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Sk. ZahiruddIn Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 4131 of 1968
Judge
Reported inAIR1972All389
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7 and 7F
AppellantSk. Zahiruddin
RespondentState of U.P. and ors.
Appellant AdvocateBashir Ahmad and ;S. Sharafat Ali, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....with law and in the light of the above..........to him for fresh orders of allotment of the accommodation. opposite party no. 2 moved the state government in revision under section 7-f of the act challenging the legality and propriety of the order of cancellation of allotment. the state government was of the view that there was nothing on the record to show that opposite party no. 2 had committed any fraud or misrepresentation in securing the order of allotment in his favour and that the application of the petitioner was not put up for orders of the rent control and eviction officer presumably due to slackness or lapse on the part of the inspector of the office of the rent control and eviction officer, for which suitable action should be taken against the delinquent officers but opposite party no. 2 should not be penalised.....
Judgment:
ORDER

B.N. Lokur, J.

1. This petition was heard and allowed by C. D. Parekh, J. on the 23rd September, 1970 but on the application of opposite party No. 2 that order has been set aside and the petition has come up for hearing again.

2. The petitioner applied on the 27th September. 1967 for allotment of the premises at No. 19/18 under Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The application was fixed for orders of the Rent Control and Eviction Officer on the 17th October, 1967, but the case was adjourned to the 15th November. 1967 as the Enquiry Inspector could not submit his report by then. Meanwhile, on the 13th October. 1967, opposite party No. 2 also made an application for allotment of the same premises which appear to have been wrongly described as No. 19/8. The Enquiry Inspector submitted his report in respect of the application of opposite party No. 2 on the 19th October, 1967. and the Rent Control and Eviction Officer allotted the premises to opposite party No. 2 on the 23rd October, 1967. Opposite party No. 2 entered into possession of the premises on the strength of the order of allotment in his favour. The petitioner finding opposite party No. 2 in possession of the premises in respect of which he had made an application for allotment, applied to the Rent Control and Eviction Officer for cancellation of the allotment of those premises to opposite party No. 2. After hearing the applicant and opposite party No. 2, the Rent Control and Eviction Officer realised that the application of the petitioner was not submitted to him along with that of opposite party No. 2 and remained pending but the order of allotment was made in favour of opposite party No. 2. He thought that opposite party No. 2 had as alleged by the petitioner, brought about this situation in collusion with his office. He accordingly cancelled the order of allotment in favour of opposite Party No. 2 and directed that all the applications for allotment received by a specified date be enquired into by the Chief Inspector and submitted to him for fresh orders of allotment of the accommodation. Opposite party No. 2 moved the State Government in revision under Section 7-F of the Act challenging the legality and propriety of the order of cancellation of allotment. The State Government was of the view that there was nothing on the record to show that opposite party No. 2 had committed any fraud or misrepresentation in securing the order of allotment in his favour and that the application of the petitioner was not put up for orders of the Rent Control and Eviction Officer presumably due to slackness or lapse on the part of the Inspector of the Office of the Rent Control and Eviction Officer, for which suitable action should be taken against the delinquent officers but opposite party No. 2 should not be penalised therefor. The State Government also felt that opposite party No. 2 was in possession for about a year and it was not proper to cancel the order of allotment. This order of the State Government is sought to be impugned in this petition.

3. The learned counsel for the petitioner contended that the State Government was not competent to entertain the revision application of opposite party No. 2 against the order of cancellation of allotment made by the Rent Control and Eviction Officer. Section 7-F of the Act which defines the revisional powers of the State Government reads:--

'The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3 or requiring any accommodation to be allotted or not to be allotted to any person under Section 7 or directing a person to vacate any accommodation under Section 7-A and may make such order as appears to it necessary for the ends of justice.'

The scope of the powers of the State Government under these provisions has come up for consideration of this Court more than once. In Jagdish Prasad v. State of Uttar Pradesh, 1955 All LJ 846 the Rent Control and Eviction Officer had cancelled an order of allotment made by him and also directed the allottee by a separate order under Section 7-A to deliver possession of the accommodation to another allottee. Against the order directing delivery of possession, a revision application was filed before the Commissioner who set aside the order. The State Government, which was moved under Section 7-F, set aside the order of the Commissioner and restored that of the Rent Control and Eviction Officer. A question having arisen whether the State Government could entertain the revision application under Section 7-F, Gopalji Mehrotra, J. held that in terms of Section 7-F, the State Government could interfere with the orders passed under Section 7-A only where a person is directed to vacate any accommodation and that since the Commissioner set aside the order of the Rent Control and Eviction Officer directing delivery of possession no order directing a person to vacate any accommodation subsisted, and, therefore, the State Government was not competent to entertain the revision application. This decision relied upon by the learned counsel ior opposite party No. 2 is of no assistance as the order revised by the State Government in this case was not one under Section 7-A.

4. Gopalji Mehrotra, J. had another occasion to consider the scope of Section 7-F in Ram Gopal Bhatnagar v. State of Uttar Pradesh, 1957 All LJ 913. The learned Judge laid stress on the word 'case' appearing in Section 7-F and observed :--

'Under the provisions of Section 7-F the State Government can call for the records of any case. An application under Section 3 has been referred to in this Section 7-F as a case. Further any proceeding under Section 7 has also been referred to as a case and similarly proceedings under Section 7-A have also been treated as independent proceedings, the record's of which can be called for by the State Government. This section deals with a case and not with any order passed in a particular case ..... The proper construction of Section 7-F will, therefore, be that the State Government has been given power to call for the records of the cases under Sections 3, 7 and 7-A and after examination pass any order which appears to it necessary to meet the ends of justice. The State Government does not deal with specific orders passed under these sections but calls for the records of the entire cases'.

The learned counsel for opposite party No. 2 urged that, in the light of these observations, a case commencing with an application for allotment under Section 7 can be sent for by the State Government under Section 7-F and appropriate orders can be passed by the State Government in the case.

5. The decision of Gopalii Mehrotra. J. in 1955 All LJ 846 was subject to special appeal which was decided by a Division Bench in Jagdish Prasad v. State of Uttar Pradesh. 1956 All LJ 321. The implications of Section 7-F were explained by the Division Bench thus:--

'Under this section the State Government has power to interfere with three classes of orders, first, an order granting or refusing to grant permission under Section 3; second an order requiring any accommodation to be let or not to be let under Section 7; and third, an order directing a person to vacate any accommodation under Section 7-A'. These observations run counter to those made by Gopal Ji Mehrotra. J. in 1957 All LJ 913 (supra) and indicate that the test of the exercise of revisional powers under Section 7-F is the existence of an order of the description given in that section and not the existence of a case under the enumerated sections.

6. The same view was reiterated by another Division Bench in Kali Prasad Gupta v. Radhakant Bhargava, 1956 All LJ 786 in the following words:--

'This section authorises the State Government to call for the record and to pass necessary orders in any case either (a) granting or (b) refusing to grant permission for the filing of the suit etc. Unless there is a subsisting order of granting or refusing to grant permission the State Government is not authorised to exercise jurisdiction under this section'.

On the authority of these two Division Benches I hold as I am bound to that unless there is a subsisting order allotting or refusing to allot any accommodation under Section 7, the State Government cannot exercise its powers of revision under Section 7-F.

7. The question that then arises is whether cancellation of allotment previously made is tantamount to an order refusing to allot. This question also is covered by the observations of a Division Bench in 1956 All LJ 321. The Bench said:--

'But as the State Government has power to Set aside an order requiring any accommodation to be let or not to be let under Section 7, it has power to set aside the order of the Commissioner if the effect of that order was to set aside an order of the District Magistrate or the Rent Control and Eviction Officer requiring any accommodation to be let or not to be let to any person.

In the present case the Rent Control and Eviction Officer while setting aside the order of allotment dated 19th January. 1954, had made an order that the accommodation shall not be let to the appellant'.

Accordingly, I have to conclude that an order cancelling an allotment made under Section 7 impliedly is an order that the accommodation shall not be let and in that view the State Government is competent to examine the order of cancellation of allotment under its revisional powers under Section 7-F.

8. The submission of the learned counsel for the petitioner that the State Government had no jurisdiction to interfere with the order of cancellation of allotment made by the Rent Control and Eviction Officer in this case has to be rejected.

9. The learned counsel, however, argued that the State Government has failed to apply its mind to the real object underlying the order of cancellation, namely, that two applications for allotment were pending which were to be heard and disposed of together. There is force in this argument. The petitioner's application which was prior in time was ignored and the later application of opposite party No. 2 was considered and the allotment was made in his favour. Section 7 of the Act which provides for the powers to make allotments unquestionably envisages that the need of the applicant for allotment has to be considered before making an order of allotment and if there are rival applicants the allotment should be made in favour of the most deserving applicant. If the authority has more than one applicant before him for allotment, all the applications sought to be considered together for determining which of them is most needy. The order if made in favour of an applicant without considering the cases of the other pending applications would result in inequity and unfairness, particularly when the order is made in favour of the later applicant in preference to the earlier applicant as in the present case. The State Government has not applied its mind to these principles of law implicit in the powers of allotment under Section 7. The State Government has found that there was no fraud or misrepresentation as alleged by the petitioner and that opposite party No. 2 has already obtained possession under the order of allotment in accordance with law. Since the State Government has failed to notice the real question involved in this case the order of the State Government has to be and is hereby set aside and the State Government is directed to dispose of the revision application in accordance with law and in the light of the above observations. No order as to costs.


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