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Shamsher Bahadur Vs. the State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 500 of 1960
Judge
Reported inAIR1964All395
ActsConstitution of India - Article 226; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3, 7, 7(2), 7(3), 7(4), 7B and 7F; Contract Act, 1872 - Sections 23; Evidence Act, 1872 - Sections 95 and 116; Uttar Pradesh (Temporary) Control of Rent and Eviction Rules - Rules 7 and 8
AppellantShamsher Bahadur
RespondentThe State of Uttar Pradesh and ors.
Appellant AdvocateS.N. Kacker, ;Nafisul Hasan, ;J.K. Srivastava and ;L.P. Naithani, Advs.
Respondent AdvocateJ. Swarup, ;S.C. Khare, ;Sudhir Shanker and ;S.B. Choudhery, Advs.
DispositionPetition allowed
Excerpt:
(i) property - facts - article 226 of constitution of india - suppression of relevant facts - petitioner not entitled for remedy. (ii) tenancy - letting off property - section 7(2) of u.p. (temporary) control of rent and eviction act, 1947 - rent control officer permitted the subletting of a property to the owner - it amounts to order a master of the property to be let with or without the consent of the master - contract is void - hence an invalid use of the power. - - 1. this is a petition under article 226 of the constitution of india by shamsher bahadur for the issue of a writ in the nature of certiorari, or a like writ or direction, to quash all the proceedings leading to and including the order dated 19-2-1959, annexure 'f' to the affidavit, of the town rationing officer /.....orderd.s. mathur, j. 1. this is a petition under article 226 of the constitution of india by shamsher bahadur for the issue of a writ in the nature of certiorari, or a like writ or direction, to quash all the proceedings leading to and including the order dated 19-2-1959, annexure 'f' to the affidavit, of the town rationing officer / district supply officer, lucknow (to be referred hereinafter as the rent control and eviction officer), respondent no. 4 who was exercising the powers of the district magistrate under the u. p. (temporary) control of rent and eviction act (to be referred hereinafter as the act), and also the order of the state government dated 8-2-1960, annexure 'k' to the affidavit, whereby the order dated 19-2-1959 was re-established. the state government has been impleaded.....
Judgment:
ORDER

D.S. Mathur, J.

1. This is a petition under Article 226 of the Constitution of India by Shamsher Bahadur for the issue of a writ in the nature of certiorari, or a like writ or direction, to quash all the proceedings leading to and including the order dated 19-2-1959, Annexure 'F' to the affidavit, of the Town Rationing Officer / District Supply Officer, Lucknow (to be referred hereinafter as the Rent Control and Eviction Officer), respondent No. 4 who was exercising the powers of the District Magistrate under the U. P. (Temporary) Control of Rent and Eviction Act (to be referred hereinafter as the Act), and also the order of the State Government dated 8-2-1960, Annexure 'K' to the affidavit, whereby the order dated 19-2-1959 was re-established. The State Government has been impleaded as respondent No. 1 by the name of the State of Uttar Pradesh. A request was also made for the issue of a writ in the nature of mandamus to direct respondent No. 4 not to give effect to the order of the State Government and to continue to treat the petitioner as a tenant of the premises in question in pursuance of his order dated 17-1-1959, Annexure 'E' to the affidavit. After the proceeding under Section 7-B of the Act was initiated by M/s. Property Agents, respondent No. 3, the petitioner had the petition amended by impleading Munsif (South), Lucknow, as respondent No. 5, and by including a prayer for the issue of a writ in the nature of certiorari to quash the above proceeding under Section 7-B, and also for a writ of prohibition to direct the Munsif not to take any further action in the proceeding.

2. In the writ petition serious allegations were made against the conduct of Sri Jag Mohan Singh Negi, the then Minister Incharge of the department. He was consequently impleaded as respondent No. 6, so that no order may be passed without giving him a hearing. Sri Negi filed a counter-affidavit, but for purposes of the present proceeding it is not necessary to give the details of the allegations made and the versions of the respondents on this point. It may simply be mentioned that according to the petitioner, respondent No. 6 had acted arbitrarily with a view to help Messrs. Ganeshdas Ramgopal, respondent No. 2, in recovering rent in excess of the reasonable rent as was not permissible under the law. Sri Negi and also respondents Nos. 2 and 3 have denied these allegations and their version is that he had throughout acted impartially without an attempt to show favour to anyone.

3. In the writ petition the petitioner did not give particuars of the lease said to have been executed by Messrs. Ganeshdas Ramgopal, respondent No. 2, in favour of Messrs. Property Agents, respondent No. 3, and the sub-lease of the same premises obtained by the petitioner from respondent No. 3. Whether this omission is fatal to the present petition shall be commented upon later. However, all the facts as appear from theaffidavits shall be detailed in the very beginning of the judgment so that the full history may come on the record without any unnecessary repetition. Most of the facts are not in dispute, and consequently matters not in controversy shall be reproduced as they are. While those in controversy-shall be referred to by giving the versions of both the parties.

4. Messrs. Ganeshdas Ramgopal, respondent No. 2, is the owner of Halwasiya Court, Hazratganj, Lucknow, a building which was constructed in 1939 or 1940; but according to respondents Nos. 2 and 3, material additions and alterations were made in the portion of the premises which is at present in the occupation of the petitioner for running the restaurant known as 'Royal Cafe'. Their version is that the accommodation in dispute is, in the eye of law, a new construction not subject to the provisions of the Act. The version of the petitioner and the other respondents, on the other hand, is that it is not a new accommodation and is subject to the provisions of the Act. It was apparently for this reason that the R. C. and E. O. exercised the jurisdiction under the Act and passed the three orders, Annexures 'E' to 'G' at various occasions. The State Government also purports to have exercised its jurisdiction under Section 7-F of the Act by treating, the accommodation to be an old one governed by the provisions of the Act.

5. The premises in question are a part of a big hall which had, in the past, not been leased' to anyone, Respondent No. 2 divided the hall into two portions with the intention to lease the portion in dispute to some one wiling to take it on rent. As would also appear from Annexure 'II' to 'IV' to the counter affidavit of respondent No. 3, Beni Prasad Halwasiya of Messrs. Ganeshdas Ramgopal, respondent No. 2, was approached by B.R. Vohra, Deputy Chairman of Tea Board, Lucknow, for lease of the premises in question, and respondent No. 2 was willing to let out this portion on a monthly rent of Rs. 1425/- exclusive of a rent of Rs. 25/- for the garage. The Annexures to the petitioner's affidavit have been marked 'A', 'B', 'C' etc., the Annexures to the counter-affidavit of respondent No. 2, '1', '2', '3' etc. and Annexures to the counter-affidavit of respondent No. 3, 'I', 'II', 'III' etc., and to avoid having to make a reference to the parties the petitioner's Annexures shall be simply referred to as Annexures 'A', 'B', 'C', etc., while those of' respondents Nos. 2 and 3 as Annexures '1', '2', '3' etc., and Annexures 'I', 'II', 'III' etc. respectively.

6. Annexure 'II' is a letter dated July 26, 1958, of B.P. Halwasiya addressed to B.R. Vohra. However, on 31-7-1958 respondents No. 2 and 3 executed the lease, given on lease to respondent No. 3 on an annual rent of Rs. 6,000/-subject to many conditions detailed therein. One of the conditions is that the premises or any part thereof shall not be sub-let to any one without the consent in writing of the lessor. It will thus appear that though a few days earlier respondent No. 2 were demanding a monthly rent of Rs. 1425/- from the Tea Board, Lucknow, a lease in favour of respondent No. 3 was executed on 31-7-1958 for a monthly rent of Rs. 500/- only. The lease though executed on 31-7-1958 was registered on 4-10-1958.

7. Annexure 'V' dated 14-8-1958 is a letter of Messrs. Property Agents addressed to the petitioner containing terms and conditions of the sublease. These terms were accepted by him and at the time of the acceptance a cheque for Rs. 5,000/- was given to Messrs. Property Agents. Thereafter on 15-8-1958 respondent No. 3 sent the letter, Annexure 'VI' to respondent No. 2 for per-mission to sub-let the premises for restaurant purposes and the permission was granted by respondent No. 2 under Annexure 'VII' dated 16-8-1958. The petitioner and respondent No. 3 executed the sub-lease, Annexure 'XII', on 12-10-1958; but the sub-lease was registered on 5-5-1959 after the petitioner refused to appear for registration of the same. The monthly rent payable under the sublease was Rs. 1650/- and it appears that the petitioner paid a few months' rent only and not thereafter.

8. The petitioner's case is that he had given his consent to the sub-lease and executed Annexure 'XII' as result of fraud played and misrepresentation made by respondents Nos. 2 and 3 that the premises in question were new constructions not subject to the provisions of the Act. His version further is that he always had talks with B. P. Halwasiya of respondent No. 2 and not with the partners of Messrs. Property Agents, respondent No. 3, or its agents. The lease and the sub-lease are said to be void being contrary to the provisions of the Act. The version of respondents Nos. 2 and 3, on the other hand, is that both the lease and the sub-lease are genuine and that the petitioner had negotiated the matter with Messrs. Property Agents and not B.P. Halwasiya of respondent No. 2 for the simple reason that respondent No. 2 could not, after the execution of the lease, Annexure 'I' grant any lease of the premises in question.

9. On 8-12-1958 the Rent Control and Eviction Officer served the notice, Annexure '2' on Messrs. Ganeshdas Ramgopal to show cause why it be not prosecuted under Section 8 of the Act for letting out the accommodation in question to a person without an allotment order and for failing to notify the vacancy of the accommodation. At the same time another notice of the same date, 'annexure' 'A' under Section 7-A (1) of the Act was served upon the petitioner to show cause why he be not evicted from the accommodation within three days of the receipt of the notice. Respondent No. 2 sent his reply, Annexure 'B', on 11-12-1958 followed by a supplementary reply, Annexure 'C', dated 22-12-1958. In Annexure 'B' respondent No. 2 reiterated that the construction in question was a new construction for which no prior permission of the Rent Control and Eviction Act was necessary before giving it on lease. However, under Annexure 'C' respondent No. 2 requested the Rent Control and Eviction Officer to allot the premises to avoid any legal complication without prejudice to his claim. The reply submitted by the petitioner is Annexure 'D' wherein he clearly mentioned that the landlord while demanding exorbitant rent had made a representation that the premises in question were new constructions and he was at liberty to charge whatever rent he liked. The petitioner made a request that the notice be withdrawn and an allotment order issued in his favour. It will be found that respondent No. 2 did not indicate in Annexures 'B' and 'C' that the premises had already been given on lease to respondent No. 3. The petitioner also made no reference to the execution of the sub-lease in favour of respondent No. 3 on the basis of the replies submitted by the petitioner and respondent No. 2, the Rent Control and Eviction Officer passed the allotment order, Annexure 'E' dated 17-1-1959.

10. On 10-2-1959 the petitioner moved an application under Section 3-A of the Act for determination of the reasonable rent of the accommodation allotted to him und'r allotment order, Annexure 'E', and after hearing the petitioner and respondent No. 2, the Rent Control and Eviction Officer fixed the reasonable rent of the accommodation at Rs. 362.50 np. under the order dated 25-9-1959, Annexure 'H'. Meanwhile on 17-2-1959 Messrs. Ganeshdas Ramgopal, respondent No. 2, sent the letter, Annexure '5', to the Rent Control and Eviction Officer wherein a mention was made of the lease already executed in favour of Messrs. Property Agents. A request was made for the amendment of the allotment order by permitting the tenant, Messrs. Property Agents, to sub-let the premises to the petitioner. Attention of the Rent Control and Eviction Officer was drawn to another mistake in the allotment order wherein the premises were mentioned to be situated in Halwasiya market and not in Halwasiya Court. Messrs. Property Agents, respondent No. 3, also sent a similar letter, Annexure 'XVI', repeating that the premises were not governed by the Act and if so governed, permission may be granted to sublet it to the petitioner.

Without giving any hearing to the petitioner, a fact which has not been controverted by the respondents, the Rent Control and Eviction Officer modified the allotment order by issuing the order, Annexure 'F', dated 19-2-1959 in supersession of the order, Annexure 'E'. Under this order the chief tenant, Messrs. Property Agents, was directed to sub-let the accommodation to the petitioner. On receipt of the fresh allotment order dated 19-2-1959 the petitioner made a representation to the Rent Control and Eviction Officer (Annexure ('XVIII') for not reducing his status to that of a sub-tenant. The request made was that the allotment order dated 17-1-1959 be allowed to stand. Objections filed by respondents Nos. 2 and 3 to this application are Annexures '6' and 'XIX'. After giving a hearing to the parties, the Rent Control and Eviction Officer passed the order, Annexure 'G', on 19-3-1959 whereby the allotment order dated 19-2-1959, Annexure 'F', was cancelled and the allotment order, Annexure 'E' dated 17-1-1959 restored. The detailed order on the basis of which annexure 'G' was passed is annexed to the rejoinder-affidavit; and for the disposal of the present proceedings, it is not necessary to give further details of this order.

11. Respondent No. 3 took no further steps, but Messrs. Ganeshdas Ramgopal, respondent No.2, moved the application, Annexure 'XXIV, under Section 7-F of the Act before the State Government, It was repeated that the construction was new one not subject to the provisions of the Act and it was also pleaded that the allotment order, Annexure 'E', was in contravention of Rules 7 and 8 of the Rules framed by the State Government under Section 17 of the Act. The request made in the application was to set aside the orders dated 19-3-1959 and 17-1-1959 of the Rent Control and Eviction Officer, and either to restore the order dated 19-2-1959 or to order that the premises in question be let to Messrs. Property Agents. The petitioner filed a reply to the application, and it was on 8-2-1960 that the State Government passed final orders. The order was communicated to the parties under Annexure 'K'. The result was that the order, Annexure 'F', dated 19-2-1959 of the Rent Control and Eviction Officer was restored. The petitioner's case is that this order is invalid and beyond the jurisdiction of the State Government. It was also alleged that the Hon'ble Minister dealing with the application had originally expressed his opinion that the application under Section 7-F shall be dismissed, but later changed his mind and put pressure upon the petitioner to come to terms with respondent No. 2, otherwise the application would be allowed, that is, an order passed against the petitioner. These allegations have been denied by all the respondents including Sri Jag Mohan Singh Negi; but for purposes of the present proceeding, it is not necessary to enter into this controversial question of fact.

12. From the affidavits on record, it further appears that respondent No. 3 instituted a civilsuit No. III of 1959 in the Court of Munsif (South), Lucknow, against the petitioner on 25-2-1959 for the recovery of Rs. 4980/- towards the arrears of rent for three months with interest. The plaint of that suit is Annexure 'XIV and the written statement filed by the petitioner is Annexure 'XV'. Respondents Nos. 2 and 3 together instituted another suit No. 31 of 1959 in the Court of the Civil Judge Lucknow, to restrain the petitioner from making any opening in any wall or making any structural alteration or to carry out any construction in the premises in question. Respondent No. 3 also moved an application under Section 7-B of the Act an 10-2-1960 for the recovery of the arrears of rent from the petitioner. This step was taken soon after the decision of the application under Section 7-F by the State Government on 8-2-1960. The proceeding under Section 7-B was apparently challenged in the writ petition so that it may not be necessary for the petitioner to deposit the arrears of rent or to furnish security as necessary under the law.

13. Respondents Nos. 2 and 3 have raised a few preliminary objections to the maintainability of the writ petition, and it will be proper to dispose of these objections before commenting upon the merits of the case. I shall take up these objections one by one.

14. The first point contended is that the petitioner had intentionally suppressed material facts and did not indicate in the writ petition and also the affidavit accompanying thereto that he hadhimself approached Messrs. Property Agents, respondent No. 3, and voluntarily obtained sub-lease of the premises in question after execution of the sub-lease, Annexure 'XII', on 12-10-1958. It is said that these facts were also suppressed at the time he obtained the order of allotment, Annexure 'E' , dated 17-1-1959 from the Rent Control and Eviction Officer. The suggestion made is that the petitioner had acted in a mala fide manner to obtain an ex parte order, in his favour.

Reliance was placed upon a Full Bench decision of this Court in Asiatic Engineering Co. v. Achhru Ram, AIR 1951 All 746. In the circumstances of the present case the petitioner cannot be held guilty of suppression of relevant facts. In the Full Bench case, AIR 1951 All 746 it was observed that if the facts were stated in such a way as to mislead and deceive the Court, there was a power inherent in the Court, in order to protect itself and to prevent an abuse of its process, to discharge the interim order and to refuse to proceed further with the examination of the merits of the case. It was on this ground that the petitioner of that case was held to have disentitled itself to ask for a writ of prohibition by material suppression, misrepresentations and misleading statements. In the Full Bench case, AIR 1951 All 746 it was further observed that the suppression, misrepresentation, or misleading statements must be with regard to relevant facts. In case a party has to give all the facts, whether relevant or irrelevant, the petition and also the affidavit shall become bulky and the time of the Court would be unnecessarily wasted. The point for consideration invariably is, in case the petitioner had given full facts, in other words, the facts which are said to have been suppressed, would this Court have exercised its extraordinary powers under Article 226 by admitting the writ petition and issuing an interim order? In case the writ petition would have been admitted and an interim order passed even if the facts not given were detailed in the writ petition, there would not in the eye of law, be suppression of material relevant facts as to disentitle the petitioner to any remedy under Article 226.

15. For reasons to be detailed hereinafter, the premises in question cannot, for purposes of the present proceeding, be regarded as a new accommodation not subject to the provisions of the Act, and Messrs Ganeshadas Ramgopal could not, without any order of the District Magistrate or the Rent Control and Eviction Officer, give the accommodation in question on lease to anyone. A contract against the law is void and unenforceable. In other words, as a result of the lease, Annexure 'I', Messrs. Property Agents did not acquire the status of a legal tenant-in-chief, nor could Messrs. Property Agent sub-let the accommodation to the petitioner or to any other person, not only on the ground that it was not a tenant of the accommodation, but also because prior permission in writing of the District Magistrate or the Rent Control and Eviction Officer had not been obtained. It was conceded by the respondents that the provisions of the Act were applicable to the city of Lucknow within which the premises in question were situated; but during thecourse of the argument it was suggested that the District Magistrate had not issued any general or special order as contemplated by Section 7(2) of the Act requiring a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant. The parties were, thereafter, given an opportunity to file a certified copy of the order under Section 7(2), if passed by the District Magistrate of Lucknow, and it was after considerable search and delay that the original order was produced before the Court. A perusal of this order makes it clear that on 22-5-1947 the then District Magistrate of Lucknow, Sri A.D. Pandit, had passed an order under Section 7(2), the relevant portion of which runs as below:

'1. That every landlord shall, either personally or through his duly authorised agent, give intimation of the falling vacant of any accommodation of which he is the landlord to the Rent Control and Eviction Officer, Lucknow who shall order him to let or sub-let such accommodation to any person.

EXPLANATION--(1) For the purpose of subletting landlord's written consent shall also be required along with the intimation.

(2)..............................

2. That no landlord or his agent will let any accommodation to any person without first obtaining permission in writing from the Kent Control and Eviction Officer, Lucknow.

3. ...........

4. .........'

As the accommodation in question was subject to the provisions of the Act, no landlord could let any accommodation to any person without first obtaining permission in writing from the Rent Control and Eviction Officer, Lucknow. It is the admitted case of the parties that respondent No. 2 had not obtained the permission of the Rent Control and Eviction Officer before giving the accommodation on lease to respondent No. 3. A lease against the provisions of the Act was held to be void and unenforceable in Shyam Sunder Lal v. Lakshmi Narain Mathur, 1961 All LJ 333: (AIR 1961 All 347). I am not only bound by this decision but am in respectful agreement therewith. In other words, the contract between respondents Nos. 2 and 3, as evidenced by Annexure 'I' is void and no effect could be given to such a contract. To put it differently, respondent No. 3 did not become the tenant of the accommodation and on this ground alone it could not sub-let the accommodation to the petitioner. The sub-lease will also be unenforceable.

16. The order dated 22-5-1947 has not been nicely worded, but in view of Section 7(3) of the Act respondent No. 3 could not sub-let any part of the accommodation to the petitioner unless permission in writing of the landlord and of the District Magistrate had been previously obtained. It is the admitted case of the parties that no permission in writing of the District Magistrate was obtained before the execution of the sub-lease, Annexure 'XII'. The permission can be said to have been obtained under the order, Annexure 'F', dated 19-2-1959 of the Rent Control and Eviction Officer, but this order was subseqentlyvacated, though later restored by the State Government. As the permission in writing of the District Magistrate was not at all obtained, at least not before sub-letting the premises in question, the sub-lease is void and unenforceable. A similar view was taken in Special Appeal No. 40 of 1958 R.K. Dubey v. Rajendra Kumar, D/.- 25-10-1961 (All LB). In other words, both the lease, Annexure 'I' and sub-lease Annexure 'XII' are void and unenforceable. A void transaction can be disregarded by the parties to the contract also and, in any case, the Courts of law shall start with the assumption that no such lease or sub-lease is in existence.

17. What can be said in the present case is that the petitioner disregarded a void contract while invoking the extraordinary jurisdiction under Article 226 of this Court and suppressed facts with regard to a void contract. Such a conduct on the part of the petitioner cannot be said to be such as to disentitle him of a relief under Article 226 which he would have been otherwise entitled to. Further, even if all the facts leading to the execution of the lease and the sub-lease had been given in the writ petition or the affidavit accompanying thereto, this Court would have disregarded those facts and granted an interim order in the same manner and to the same effect as was done on perusal of the writ petition not containing facts pertaining to void contracts.

18. As observed in the above Full Bench case, AIR 1951 All 746, High Courts adopt a strict attitude and do not grant reliefs to a party guilty of suppression of facts to ensure that no one tries to abuse the process of the Court. When the suppression of certain facts had no effect on the admission of the writ petition and the grants of an interim order it cannot rightly be said that there was suppression of relevant facts. The present petition cannot, therefore, be dismissed on the ground that full facts regarding void contracts and also the conduct of the petitioner with regard to or in connection with such contracts were not detailed in the writ petition.

19. The second point contended is that in view of Section 116 of the Evidence Act the petitioner was estopped from challenging the status of Messrs. Property Agents, respondent No. 3, and his own status as sub-tenant for so long as he continued in possession of the property. Section 116 lays down that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This principle can also be applied to sub-tenants vis-a-vis their principal (tenant): but the words 'during the continuance of the tenancy' are of great significance and make it clear that where there is no legal tenancy or sub-tenancy, the provisions of the section shall be inapplicable. The relationship as between tenant and sub-tenant can be created only by contract valid according to the law in force at the time of the execution of such contract, or can be created or continued by operation of law. The existence of such relationship can also be implied from the act of the parties for so long as the implied contract is not invalid, that is, not againstthe law. The agreement leading to the execution of the sub-lease, Annexure 'XII', is void and unenforceable. As the contract is against the law, it is not valid and could not make the petitioner a sub-tenant of respondent No. 3. For this reason the subsequent conduct of the petitioner cannot be used against him. To put it differently, there was no legal sub-tenancy and there could be no question of the continuance of sub-tenancy, and the petitioner could later challenge the status of Messrs. Property Agents, and he could not be deemed to be estopped from challenging the status of respondent No. 3 for so long as he was in possession of the premises in question.

20. The third point raised is that many highly controversial questions of fact are involved which cannot be properly adjudicated upon unless full evidence of the parties is recorded. The suggestion made is that the petitioner should have challenged the order of the State Government in a suit instituted by him or he could challenge the order in the two suits which have already been instituted by respondent No. 3 for the recovery of rent. One of these proceedings is suit No. 11 of 1959 for the recovery of three months' rent and the other an application under Section 7-B of the Act for the recovery of the arrears of rent.

21. The three controversial questions of fact involved in the present proceeding are:

(1) Whether Sri Jag Mohan Singh Negi, the then Minister, had acted in a mala fide manner in order to help respondents Nos. 2 and 3, or he was discharging his functions impartially without any intention to show favour to anyone?

(2) Whether the Firm of Messrs. Property Agents, respondent No. 3, is fictitious and has no legal status, or there was a genuine transaction between respondents Nos. 2 and 3 even though on some other ground the contract arrived at between the two may not be enforceable?

(3) Is the accommodation in question not subject to the provisions of the Act?

22. As already mentioned above, the writ petition can be decided without expressing any opinion on the first point and also on the second. For reasons to be discussed hereinafter, the State Government had no jurisdiction to pass the impugned order, Annexure 'K', dated 8-2-1960 and for this reason it is not necessary to consider the diverse allegations made by the petitioner against the conduct of Sri Jag Mohan Singh Negi. A finding in the present case can be recorded by treating Messrs. Property Agents as a genuine partnership concern, or by consideration of the case in the alternative, that is, the partnership is or is not genuine. It is, therefore, not necessary to direct the petitioner to seek his remedy in a regular suit, whether instituted by or against him, simply because the above controversial questions of fact have been raised.

23. The third point whether the accommodation in question is not subject to the provisions of the Act has been raised by respondents Nos. 2 and 3 and not by the petitioner. This point had to be considered by the Rent Control and Eviction Officer and also by the State Government. Ifthe accommodation was not subject to the provisions of the Act, none of them could pass any order of allotment, that is, the District Magistrate and also the State Government could not issue any order requiring respondent No. 2 to let or not to let the accommodation to any person, nor could any direction be issued for its sub-letting but if the accommodation was governed by the provisions of the Act, respondents Nos. 2 and 3 would be bound by any order or direction given under Section 7 of the Act. To put it differently the Rent Control and Eviction Officer and also the State Government had to form an opinion whether the present accommodation was governed by the provisions of the Act if they recorded finding in the affirmative or formed an opinion that the accommodation was subject to the provisions of the Act, they could pass an order as contemplated by the Act. When both the Rent Control and Eviction, Officer and the State Government passed or purport to have passed an order under the Act, it can safely be assumed that they were of opinion that the present accommodation was subject to the provision of the Act. One of the points to be considered by this Court is whether this finding or implied finding of the two authorities is proper or there exists an error apparent on the face of the record which would justify the quashing of the various orders on the ground that none of the authorities could exercise jurisdiction with regard to the accommodation in question. Of course, this Court shall not express any final opinion and it shall be open for the respondents Nos. 2 and 3 to challenge by way of separate suit the various orders passed by the Rent Control and Eviction Officer and also the State Government.

24. The case of the petitioner is that the accommodation in question is not a new accommodation and is subject to the provisions of the Act. He could not, therefore, challenge the jurisdiction of the Rent Control and Eviction Officer, though he could in a separate suit challenge the order of the State Government on another ground, namely that it had no jurisdiction to pass such an order. The present case, however, is not one in which we may not dispose of the writ petition on merits and leave it for the petitioner to seek his remedy in a regular suit. The jurisdiction of the State Government depends upon the wording of the Act and not upon any controversial question of fact, and consequently it will be in the interest of the parties that the writ petition by disposed of on merits, though, of course, it shall be open for them to seek such other remedy as they may be advised.

25. Respondents Nos. 2 and 3 had not un-conditionally submitted to the jurisdiction of the Rent Control and Eviction Officer and also the State Government; and for this reason it is open for them to urge in the present proceeding that the accommodation is a new one not subject to the provisions of the Act. They can also raise this point in a separate suit, but on the basis of the material on record it cannot be held that the implied finding of the Rent Control and Eviction Officer and the State Government that the accommodation is not a new accommodation and is governed by the provisions of the Act, is improper,nor can such a finding be interfered with in the present proceeding under Article 226. It may here the mentioned that while exercising jurisdiction under Article 226 High Courts do not usurp the functions of a Court of Appeal and for that reason can interfere with an order passed by subordinate authorities only if there exists any error in the exercise of jurisdiction or there exists an error apparent on the face of the record. Where two opinions are possible and the subordinate authorities adopted one, that would not be a case for interference by this Court, though it shall be open for the parties to seek such other remedy as they may be advised.

26. In para 9 of the counter-affidavit of Beni Prasad Halwasiya filed on behalf of respondent No. 2 it was mentioned that the accommodation in question was a new accommodation as after 1951 various material changes in accommodation were effected and the character of the accommodation was changed. It is of significance that this point was not raised by respondent No. 2 itself at other stages. Such does not appear to be the case of Messrs. Property Agents, respondent No. 3, though it has been pleaded by both respondent NOS. 2 and 3 that material alterations were made in September and October 1958 after the accommodation had been given on lease to respondent No. 3.

27. Annexure 'B' is a reply which respondent No. 2 had submitted at an earlier stage in reply to the notice under Section 8 of the Act. It was mentioned in para 2 of the reply that various portions of the ground-flour were demolished and a new construction was made by putting new walls and construction at considerable cost after an application for reconstruction was made to the Municipal Board, Lucknow. No copy of the application appears to have been filed before the Rent Control and Eviction Officer, nor has it been filed in the present case. It is, therefore, difficult to hold that any new construction was made prior to or after 1951. Mere demolition of walls or construction of fresh walls will not change the character of the accommodation. The order dated 25-9-1959 of the Rent Control and Eviction Officer (Annexure 'H'), whereunder reasonable rent of the accommodation was fixed, suggests that in the objection filed by Despondent No. 2 on 29-5-1959, he simply mentioned that a substantial amount was spent on alterations and additions to the building in September and October, 1958 for converting it into a modern restaurant. It appears that at that stage it was not pleaded that any material alteration was made prior to September, 1958. Annexure '5' is the letter dated 17-2-1959 which respondent No. 2 had sent to the Rent Control and Eviction Officer for the modification of Annexure 'E'. Therein it was indicated that additions and alterations had been made, but if the letter is read as a whole it will be clear that such additions and alterations were made after 31-7-1958. In para 1 of the letter there is, first of all, a reference to the lease dated 31-7-1958 and thereafter to the additions and alterations made and last of all to the sub-lease dated 12-10-1958. Similarly, Annexure '6' dated 18-3-1959, another letter addressed to the Rent Control and Eviction Officer, is silent as to when the additions or alterations were made. In para 3 thereofit was simply mentioned that respondent No. 3 had spent considerable amount in additions and alterations. Similarly, in Annexure 'XXIV, which is the application under Section 7-F of the Act of respondent No. 2, there is no reference to any alteration or addition made prior to August 1958. The Counter-affidavit of respondent No. 3 does not also speak of any addition or alteration being made to the accommodation in question prior to August 1958.

In these circumstances, the Rent Control authorities could hold that the accommodation in question was constructed in 1939 or 1940 and thereafter no material alterations were made therein. The accommodation was, therefore governed by the provisions of the Act and could not be let to respondent No. 3 unless an order of the District Magistrate under Section 7 (2) was obtained. Admittedly, no such order was passed by the District Magistrate and consequently the lease in favour of respondent No. 3 was against the law, void and could not create the relationship of landlord and tenant between respondents Nos. 2 and 3.

28. There exists some dispute on additions and alterations made since after August 1958. It is not necessary for me to record any finding on this controversy, all the more when the alterations alleged to have been made by respondent No. 3 could make the Rent Control authorities form an opinion that the accommodation continued to be governed by the provisions of the Act.

Full particulars of the alterations made in or after August 1958 appear to have been given by respondent No. 3 for the first time in its objection, Annexure 'XIX', to the application of the petitioner for setting aside the ex parte order, Annexure 'F', dated 19-2-1959. This objection dated 3-3-1959. It is mentioned in para 6 of the objection that respondent No. 3 spent over Rs. 20,000/- in making walls, latrines, doors, painting etc., as desired by the petitioner, and other fixture and fittings. Respondent No. 2 also gave these details in para 18 of its application under Section 7-F, annexure 'XXIV'. Therein it was mentioned that respondent No. 2/or respondent No. 3 had made considerable additions and alterations by dividing the hall, making partitions, latrines, doors, stairs and dochhatte. The alterations and additions made, as contained in para 13 of the counter-affidavit of respondent No. 3, are new walls, mezzanine floor, two latrines with foreign sanitary fittings, making new openings, windows and ventilators, providing costly new doors together with furniture, fans and lighting arrangement to suit the petitioner.

29. None of the additions and alteration made could change the nature of the constructions. To the most, it can be said that minor alterations were made to the building and additional facilities were provided to the petitioner. The Rent Control and Eviction Officer and also the State Government did not act wrongly by treating the accommodation to be still governed by the provisions of the Act. In other words, the Rent Control and Eviction Officer had the jurisdiction to pass an order under Section 7 of the Act and the State Government could treat the accommodation to be governed by the provisions of the Act. The ordersof these two authorities cannot, therefore, be quashed on the ground that the accommodation was a new one and was not subject to the provisions of the Act.

30. The jurisdiction of the State Government to entertain the present application under Section 7-F and to pass the impugned order, annexure 'K', could be challenged in the proceeding under Section 7-B of the Act , Annexure XXVI', and also in suit No. III of 1959, if raised by any of the parties; but as already held above; the present is not one of those cases in which these matters may not be disposed of in the present petition. The decision of this question depends upon the consideration of the provisions of the Act, and not controversial questions of fact, and after the writ petition has been admitted and heard at length, it does not appear proper to direct the petitioner to seek remedy in one of those proceedings or in a regular suit to be instituted by him.

31. The Act has vested special jurisdiction in the District Magistrate (Rent Control and Eviction Officer) and also the State Government, as has in one way divested the parties, all the more, the landlord of certain rights which they could exercise under the general law. Consequently, the provisions of the Act must be strictly construed, and if there exists no provision in the Act for the exercise of certain jurisdiction, it shall have to be held that such jurisdiction cannot be exercised by that authority.

32. Section 7 of the Act vests jurisdiction of three kinds in the District Magistrate (Rent Control and Evicton Officer). Sub-section (2) provides that the District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant.

33. Sub-section (3) gives the jurisdiction to the District Magistrate to grant or refuse to grant permission for sub-letting any portion of the accommodation in the tenancy of the tenant. Sub-section (3) has been worded to lay down that no tenant shall sub-let any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously obtained.

34. Sub-section (4) authorizes the District Magistrate to direct a prospective tenant of any accommodation in respect of which an order is made under this section to pay to the landlord an advance of rent equal to one month's rent or to one-half of the yearly rent, as the case may be. In the present proceeding we are not concerned with the jurisdiction of the District Magistrate under Sub-section (4).

35. The Explanation to Section 7 makes it clear that for purposes of this section the word 'let' shall include the word 'sub-let'. In other words, under Sub-section (2) of Section 7 the District Magistrate can require a tenant to sub-let or not to sub-let to any person any accommodation which is or has fallen vacant or is about to fall vacant.

36. The jurisdiction of the State Government is detailed in Section 7-F of the Act. The StateGovernment can, in exercise of its jurisdiction, 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 let or not to be let to any person under Section 7, or directing a person to vacate any accommodation under Section 7-A, and can make such order as appears to it necessary for the ends of justice.

The State Government can call for the record and pass a suitable order, for the ends of justice, in only three kinds of cases detailed in Section 7-F. We are at present concerned with the second class of cases, as admittedly the instant case cannot come within the other two categories. The words 'requiring any accommodation to be let or not to be let to any person under Section 7' shall have to be read along with the provisions of Section 7 itself. It will be found that similar words have been used in Sub-section (2) of Section 7 and in no other sub-section thereof. As a reference has been made to Section 7, it shall have to be inferred that the word 'let' used in Section 7-F includes; the word 'sub-let' also. In other words, the State Government can exercise jurisdiction under Section 7-F only when an order has been passed by the District Magistrate under Section 7 (2) of of the Act with regard to both letting and sub-letting, and not if an order has been passed under Sub-sections (3) and (4) of Section 7. To put it differently, the grant or refusal to grant permission to sub-let the accommodation under: Sub-section (3) of Section 7 cannot be challenged before the State Government under Section 7-F of the Act though an order passed under Sub-section (2) of Section 7 for the sub-letting of the accommodation to any person can be challenged before the State Government.

37. This naturally leads us to the consideration of the provisions of Section 7 of the Act to lay down whether the State Government could have passed an order of the nature contained in Annexure 'K'. Under this order the State Government had re-established or restored the order, Annexure 'F', dated 19-2-1959 of the Rent Control and Eviction Officer whereby respondent No. 3 was to sub-let the accommodation to the petitioner. In other words, respondent No. 2 was to let the accommodation to respondent No. 3, while respondent No, 3 was to sub-let the accommodation to the petitioner. The order, Annexure 'F', is challenged by the petitioner on the ground that no tenancy was created by directing respondent No. 2 to let the accommodation to respondent No. 3; but on this point no opinion need be expressed, though it must be noted that the petitioner and also the respondents were throughout under the impression that under the order respondent No. 3 became the tenant of respondent No. 2, while the petitioner the sub-tenant of respondent No. 3.

38. Under Section 7(2) the District Magistrate cannot issue any direction unless the whole of the accommodation is vacant or has fallen vacant or is about to fall vacant. 'Accommodation' has been defined in Section 2(a) of the Act to mean residential and non-residential accommodation in any building or part of a building. A building can thusconsist of more than one accommodation. It will depend upon the circumstances of the case whether a part of a building can be deemed to be a separate accommodation for purposes of the Act. This will depend upon whether the whole of the building is treated as one unit for being leased to tenant or being sub-let to person, or the building has been divided into many parts and more than one tenant or sub-tenant can reside therein. It is for this reason that the District Magistrate 'cannot allot, without the consent of the landlord and/or, tenant, a part of the accommodation if that part is not needed by the landlord or tenant for his purposes. The landlord or tenant can remain in occupation of the whole even' though a part of the accommodation may not be put under use. Similarly, the District Magistrate cannot direct a tenant to sub-let an accommodation or a part thereof. For purposes of sub-letting there must be compliance to Sub-section (3) of Section 7. In other Words, the sub-letting can be done at the instance of the tenant after he has obtained the prior permission in writing not only of the landlord but of the District Magistrate also. The tenant can, if he so likes, obtain a general permission for sub-letting the accommodation or a part thereof to any person about whom the District Magistrate may issue a direction under Sub-section (2), or he may obtain permission of both the authorities for sub-letting the accommodation to a particular person. In the first case, the grant of permission by the landlord and also by the District Magistrate shall be exclusively under Sub-section (3) and the accommodation shall be sub-let to a person as and when occasion arises in accordance with the directions issued by the District Magistrate under Sub-section (2). The other case can, if considered narrowly, be deemed to fall under Sub-section (3) only; but such an order can also be sub-divided into two parts, one under Sub-section (3) and the other under Sub-section (2).

39. Courts of law have to make an attempt to harmonize the various provisions of a section and on the application of this principle also, it shall have to be held that where an order 'similar to Annexure 'F' or Annexure 'K' is passed, it would mean that a tenant is being granted the permission to Sub-let the accommodation and at the game time there is a direction under Sub-section (2) to Sub-let the accommodation to a particular person. The two parts of the order can, for purposes of jurisdiction, be deemed to be of a distinct nature. The order as far as the grant of permission for sub-letting is concerned shall be under Sub-section (3) of Section 7, and such permission can be granted by the District Magistrate and his order cannot be reviewed by the State Government under Section 7-F of the Act. Where the District Magistrate or the Rent Control and Eviction Officer exercising the powers of the District Magistrate refuses to grant the permission, the State Government cannot order the sub-letting of the accommodation to any one. The order of the District Magistrate Under Sub-section (3) is final and cannot be questioned before anyone. It is a different thing that the District Magistrate may later in the conditions then existing modify his earlier order and grant the permission. In other words, the jurisdiction to pass an order granting or refusing to grant the permission lies exclusively with the District Magistrate and the State Government has no power to exercise such a jurisdiction.

40. In case permission for sub-letting is granted by the District Magistrate, the other part of the order to whom the accommodation shall be sub-let can be reviewed under Section 7-F.

41. Coming to the instant case the final order passed by the Rent Control and Eviction Officer is Annexure 'G', dated 19-3-1959 by which the earlier order of allotment, Annexure 'E', dated 17-1-1959 was restored. The final order of the Rent Control and Eviction Officer was thus a direction to the landlord to let the accommodation in question to the petitioner. The Rent Control and Eviction Officer did not allot it to Messrs. Property Agents, nor did he grant the permission to Messrs. Property Agents to sub-let the accommodation to the petitioner. In other words, the Rent Control and Eviction Officer had refused to grant permission for sub-letting of the accommodation, and when he did not grant permission the State Government could not issue a direction for the subletting of the accommodation to any one. In other words, the order of the State Government, Annexure 'K', restoring the order, Annexure 'F', that is directing the landlord to let the accommodation to Messrs. Property Agents and at the same time directing Messrs. Property Agents to sub-let the accommodation to the petitioner, is without jurisdiction and deserves to be quashed.

42. The general order of the District Magistrate dated 22-5-1947 under Section 7(2) is on record. It has not been worded happily. I am inclined to be of opinion that this order prohibits the sub-letting of accommodation or part thereof without the permission or order of the District Magistrate. The matter has been considered above from this aspect, namely that no tenant can sub-let the accommodation unless permitted or directed by the District Magistrate, of course, after permission in writing of the landlord and of the District Magistrate had been previously obtained. But if for some reason a contrary view is taken of the order under Section 7 (2) passed by the District Magistrate on 22-5-1947, it shall have to be held that there was no restriction for sub-letting and the tenant could sub-let the accommodation without any order or direction of the District Magistrate under Sub-section (2). In such a case, the only order which the Rent Control authorities could pass would be one under Sub-section (3), that is, to grant or refuse to grant the permission to sub-let the accommodation. If such was a case, the order of the District Magistrate would not be subject to review by the State Government under Section 7-F and the State Government shall have no power to revise or modify any order that the District Magistrate may have passed under Sub-section (3).

43. The order of the State Government can be held to be without jurisdiction on another ground also and for this we shall have to look into the object of the Act. As already mentioned above it is not necessary to record any finding on the nature of the transaction undergone between respondents Nos. 2 and 3. We can consider the matter in the alternative. At this place, it may also be observed that for purpose of the presentproceeding we are not to attach any importance to the disputes that are in existence between the parties on the rent payable by the petitioner. That matter can be adjudicated in a proper proceeding. It will be in the fitness of things that this part of the dispute may be disregarded, not only for determination of the validity of the order of the State Government but also the nature of the transaction between respondents Nos. 2 and 3. It shall be open for the parties to raise this question in a proper proceeding.

44. In case Messrs. Property Agents, respondent No. 3, is a fictitious partnership firm and the transactions were in effect being undergone by or on behalf of Messrs. Ganeshdas Ramgopal, respondent No. 2, no question of sub-letting can arise as in spite of the execution of the lease or any order under Section 7 (2), the landlord shall continue to be respondent No. 2 even though there may be formal allotment in favour of respondent No. 3, tenant-in-chief. It is where respondent No. 3 is a genuine partnership firm that in certain circumstances, the accommodation can be leased to respondent No. 3 and later sub-let to the petitioner. It will be in the fitness of things that we should record a finding treating respondent No. 3 as a genuine partnership concern. No opinion is however being expressed on this point.

45. From the Annexure on record it is clear that the accommodation in question was never in actual occupation of Messrs Property Agents. The lease, Annexure 'I', was executed on 31-7-1958, and it was within 14 days that negotiations for the sub-lease thereof in favour of the petitioner were almost finalized. The terms of the sub-lease are contained in Annexure 'V' dated 14-8-1958. Messrs. Property Agents were never in actual possession of the accommodation. In any case, on the date the Kent Control and Eviction Officer served the notices on respondent No. 2 and the petitioner, it was the petitioner who was in actual possession and Messrs. Property Agents had no rights unless the District Magistrate passed an order directing the landlord to let the accommodation to Messrs. Property Agents. In other words, from whatever aspect the matter is looked into, Messrs. Property Agents, respondent No. 3 were not in occupation of and did not require the accommodation in question for its own use. The accommodation was meant to be occupied by the petitioner, may be under a lease or sub-lease. The question for consideration is whether under the provisions of the Act, the rent control authorities could pass an order directing the landlord to let the accommodation to respondent No. 3 to enable the latter to sub-let the accommodation to another person, in the present case, the petitioner. To put it differently, could the Rent Control authorities allot the accommodation to a person who did not want to himself occupy it? I have given my patient consideration to this question and am of opinion that such an allotment is not permissible under the law.

46. The object of the Act is contained in the preamble of the Act. The preamble runs as below: -

'An Act to provide for the continuance, ducing a limited period, of powers of control the letting and the rent of residential and non-residential accommodation and to prevent the eviction of tenants therefrom.'

The subsequent part thereof clearly indicates that the legislature made the law due to the shortage of accommodation in Uttar Pradesh. The Act is a special law meant to control the special conditions existing due to the shortage of accommodation. When the public authorities including the State Government were given the power to control the letting, that was done for the interest of the public to ensure that landlords and tenants-in-chief did not take undue advantage of the shortage of accommodation. No monopoly could be created in favour of any one and the accommodation was to be let to a person who was genuinely in need of it for his own occupation. In other words, any accommodation falling vacant after the commencement of the Act is to be allotted to a person who is genuinely in need. It is within the discretion of the Rent Control authorities to lay down who is genuinely in need or whose needs are more urgent than of others requiring accommodation. The discretion so exercised cannot be questioned before the Courts of law; but if the Rent Control authorities act arbitrarily by alloting the accommodation to a person not in need of the accommodation or as a result of the allotment create monopoly in favour of any one, that would be a clear case where the discretionary powers have been abused and not exercised in accordance with the law. This finds corroboration from Sections 3 and 7 of the Act. Clause (e) of Sub-section (1) of Section 3 gives power to the landlord to sue for ejectment of the tenant if he has on or after the 1st day of October, 1946, sub-let the whole or any portion of the accommodation without the permission of the landlord. Similarly, Sub-section (3) of Section 7 lays down that no tenant shall sub-let any portion of the accommodation in his tenancy without the permission in writing of the landlord and of the District Magistrate previously obtained. The accommodation is allotted by the District Magistrate to a person genuinely in need for his own occupation, and such a person cannot be permitted, except in special circumstances, to sub-let the whole or a part of the accommodation. When subletting has been prohibited without the permission of the District Magistrate it can be inferred that the underlying idea is that the accommodation be allotted to a person who requires it for his own use.

47. In the present case, Messrs. Property Agents did not require the accommodation for its use, and the Rent Control authorities had no jurisdiction to pass an order under Section 7 (2) of the Act for the accommodation being let to respondent No. 3, who was not in need of the same. The effect of the impugned order of the State Government is that the accommodation in question, was to be let to respondent No. 3 to enable it to sub-let it to the petitioner. This order is against the provisions of the Act and being arbitrary shall be deemed to be without jurisdiction.

48. To get over this difficulty it was contended on behalf of the contesting respondents that while disposing of the application under Section 7-F of the Act, the State Government does not act as a judicial or quasi-judicial authority and the orderpassed by it is a mere administrative order, as mentioned in the section itself for the ends of justice.

It was contended that for passing an order as may be necessary for the ends of justice, the State Government can depart from the law or even take an erroneous view of the law in order to do justice between the parties. It is said that in the present case the State Government had done justice by accepting the contracts that had been arrived at between the parties and regularized what had been done in the past without obtaining the prior permission or order of the Rent Control authorities.

49. For purposes of the present proceeding itis not necessary to record a finding whether theState Government was acting as an administrativeauthority or a quasi-judicial one. I am alive tocertain decisions of this Court wherein it has beenheld that the State Government acts as an administrative body while dealing with an applicationunder Section 7-F. These decisions may requirereconsideration in view of a recent decision of theSupreme Court in which the Board of High Schooland Intermediate Education was deemed to beacting as a quasi-judicial authority while debarringcandidates from appearing in Examinations conducted by it, or while cancelling their result alreadyannounced. The jurisdiction of the State Government under Section 7-F is similar, being not moreadministrative than of the Board of High School andIntermediate Education. Before any direction isissued by the District Magistrate under Section 7 (2), hehas to deal with the matter administratively andnot quasi-judicially. He has to consider the needs ofvarious persons applying for allotment of the accommodation: It is not necessary for him to weighwith golden scales the evidence which the claimants may adduce; but once an order has been passedunder Section 7 (2) of the Act and the allottee takespossession of the accommodation, the matter hasto be considered from a different angle. When anorder of allotment is to be modified or vacated bythe District Magistrate, he has to view the mattersomewhat judicially. The same can be said aboutthe State Government when it is called upon toreview the order of the District Magistrate and itdecides to make an order necessary for the ends ofjustice.

50. Whether the State Government acts as an administrative body or as a quasi-judicial authority, it cannot, in my opinion, go against the law, all the more, when the law debars the State Government from exercising jurisdiction in a particular manner. The object of the enactment and also the nature of the order contemplated by the Act determine not only the manner in which the jurisdiction can be exercised but the jurisdiction of the authority itself. An administrative body cannot, in my opinion, go out of the law, nor can it wrongly interpret the provisions of the Act usurp jurisdiction by passing an order which it could not. In any case, an order passed against the law shall, in the eye of law, be arbitrary and on this ground alone can be quashed.

51. The learned Advocate for the respondents relied upon a decision of the Supreme Court of Pakistan in the case The Tariq Transport Co., Lahore v. The Sargodh-Behra Bus Service, 1958. Pak LD 437. (SC). The observations made therein cannot be helpful to them. It is laid down in this case that where an administrative or executive officer acts under the law, the High Court will control the action by an appropriate order if he goes out of the law, that is, exercise a jurisdiction not vested in him by law; wrongly denies or omits to exercise a jurisdiction; or where the law under which he acts prescribes the manner in which he is to act, materially departs from that law and at the same time the excess or denial of jurisdiction or the irregularity in the prescribed procedure has injuriously affected some justiciable right of a party. One goes out of the law by usurping jurisdiction not vested in the authority, that is, by passing an order against the object of the enactment. My attention was also drawn to a passage in the Judicial Review of Administrative Action by S.A. de Smith at page 172, how discretionary powers are to be exercised by an authority? It is mentioned in this book also that in the purported exercise of its discretion the authority must not do what it has been-forbidden to do, nor must it do what it has not been authorised to do, and that it must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously.

52. Orders passed by administrative authorities against the law were quashed by this Court in Ram Charan Lal v. State of Uttar Pradesh, AIR 1952 All 752 and Smt. Prabhavati Devi v. District Magistrate, Allahabad, AIR 1952 All 836.

53. In Munna Lal Goel v. Kishan Pehalwan, 1959 All LJ 897 this Court quashed the order when there existed an error apparent on the face of the record and jurisdiction was exercised against the law.

54. In the instant case, the State Government did not have the jurisdiction under Section 7 (3) nor under Section 7-F to grant permission for the creation of sub-tenancy, and, further, the Rent Control authorities including the State Government, could not have the jurisdiction to pass an order under Section 7 (2) for the lease of the accommodation in favour of a party which was not to occupy the accommodation but was to sub-let it to another person. The first is clear case of exercise of jurisdiction not vested in the State Government, and the other is an instance of the exercise of jurisdiction against the law. In either case, the impugned order of the State Government, Annexure 'K', is invalid and deserved to be quashed by this Court.

55. The next point for consideration is should the proceeding before the State Government be quashed as a whole or it be left open for the State Government to reconsider the application under Section 7-F and pass a suitable order? In this connection it shall also have to be looked into whether the order dated 17-1-1959, Annexure 'E' as restored Under order dated 19-3-1959, Annexure 'G' of the Rent Control and Eviction Officer is valid: If this order is not valid, it would be necessary to quash this order also and to leave it open for the State Government to pass a suitable order under Section 7-F of the Act.

56. As would appear from the facts of the case detailed above, the Rent Control and Eviction Officer had originally directed the landlord, namely, respondent No. 2, to let the accommodation in question to the petitioner. This order was modified under order, Annexure 'F', dated 19-2-1959 by which the accommodation was to be sub-let to the petitioner by respondent No. 3, Impliedly the accommodation was to be leased to respondent No. 3, who was to sub-let it to the petitioner. This order was later vacated and the original order, Annexure 'E' was restored.

57. The petitioner's case from the very beginning is that the order, Annexure 'F', was passed without giving him a hearing. In other words, there was at that stage violation of the principles of natural justice. This has not been controverted by the respondents. Soon after the order, Annexure 'F', was communicated to the petitioner, he filed an application, Annexure 'XVIII', and in para 5 thereof clearly mentioned that the order, Annexure 'F', was passed without any intimation to him. Respondents Nos. 2 and 3 filed objections to the above application of the petitioner and these objections are Annexures 6 and 'XIX' respectively. A perusal thereof will make it clear that none of the respondents challenged the above assertion. Similarly, in para 16 of the affidavit, the petitioner clearly mentioned that the Rent Control and Eviction Officer modified the allotment order already passed ex parte. The contents of para 16 were denied evasively without asserting that the petitioner was given a hearing before passing the order. Annexure 'F'. Respondent No. 3 also acted in the same manner. Evasive denial can amount to an admission. The petitioner's version is also corroborated by the fact that Annexure 'F' was passed within 2 days of applications having been moved by respondents Nos. 2 and 3 for modification of the order, Annexure 'E'.

58. When the Rent Control and Eviction Officer passed an order adverse to the petitioner without giving him a hearing, that order was not only against the principles of natural justice, but the Officer could, on being moved by the petitioner vacate the ex parte order. Further, as already mentioned above the accommodation could not be ordered to be let to respondent No. 3, who had no intention to itself occupy it but wanted to sub-let it to another person. Such an order would have been against the law and consequently invalid.

59. The order, Annexure 'F', dated 19-2-1959, being invalid, is, in the eye of law, non-existent and cannot be deemed as an order passed by the Rent Control and Eviction Officer. The only other two orders passed by him are Annexures 'E' and 'G' by which respondent No. 2 was to lease the accommodation to the petitioner. The Rent Control and Eviction Officer acts administratively while deciding to whom the accommodation is to be given on lease and his discretion cannot be interfered with unless he is found to have acted arbitrarily and not in good faith. Further, there was no other claimant for the accommodation except the petitioner. The other claimant was Messrs. Property Agents, respondent No. 3, in whose favour no order could be passed by the Rent Control authorities. When there was no other person in the field theRent Control and Eviction Officer could, without any difficulty, direct that the landlord shall let the accommodation to the petitioner. It may here be mentioned that at no stage has any person come forward desiring that the accommodation in question be given to him on lease. No one apparently applied to the Rent Control and Eviction Officer for the allotment of the accommodation, nor did any one challenge the order of allotment before the State Government by moving an application under Section 7-F. In this connection, it may also be mentioned that even Messrs. Property Agents, respondent No. 3, did not press their claim by moving an application under Section 7-F. It was respondent No. 2 which moved an application under Section 7-F before the State Government. When the party desiring the lease of the accommodation does not press the claim, it was not proper for the State Government to pass an order in favour of that party.

60. The respondents have also not asserted that there was some other claimant for the accommodation, and his claims were not considered or could be considered by the State Government; but what the respondents had been pleading from the initial stage was that respondent No. 2 wanted to lease the accommodation to respondent No. 3 and not to the petitioner, though respondent No. 3 could sub-let the accommodation to him. In other words, the respondents' themselves wanted the accommodation to be occupied by the petitioner and not by any other person, and in such circumstances the only option open for the Kent Control authorities including the State Government was to pass an order under Section 7 (2) in favour of the petitioner. To put it differently, Annexures 'E' and 'G' are not invalid and as these orders were not challenged before the State Government by respondent No. 3 this Court can quash the order of the State Government without directing a fresh hearing of the application under Section 7-F.

61. The orders, Annexures 'E' and 'G', were also challenged on another ground, namely, that there was breach of Rules 7 and 8 of the Rules framed under Section 17 of the Act known as the Control of Rent and Eviction Rules. Rules 7 and 8 run as below :-

'7. Allotment of portion of accommodation:-

Where a portion of accommodation falls vacant-and the owner is in occupation of another portion thereof the District Magistrate shall before making the allotment order, consult the owner and shall so far as possible make the allotment in accordance with the wishes of the owner. 8. (i) In case landlord desires to let out a portion of an accommodation any portion of which was not let out before, the District Magistrate shall make the allotment, if the landlord happens to be living in any portion of the accommodation, in accordance with the wishes of the landlord and, 'if the landlord does not live in the accommodation, in accordance' as far as may be with his wishes:

Provided always that the District Magistrate shall at any time after such allotment, on being satisfied on the application of the landlord that he requires the accommodation bona fide for his personal residence, grant him permission under Section 3 of the Act for ejectment of the tenant. (ii) If the accommodation referred to in sub-rule (i) falls vacant at any time subsequently as a result of the tenant vacating it, the District Magistrate shall if so requested by the landlord, allow him to occupy the same for his own residence.'

62. In Rule 7 the State Government has used the word 'occupation' while in Rule 8, the word 'living' or 'residence'. When the State Government used different words in Rules 7 and 8, it shall have to be inferred that Rule 7 applies to accommodation let out to tenants in the past and a portion of which is in occupation of the landlord as residence or otherwise; while the first, in fact the main part of Rule 8 to accommodation not let out before and a portion of which is occupied for residential purposes by the landlord. The second part of Rule 8 (underlined (here into') by me) applied to accommodation not let out before and also not occupied by the landlord as residence. The second part is akin to Rule 7 in that allotment has to be made as far as passible, in accordance with the wishes of the landlord. Respondent No. 2 was not residing in Halwasiya Court: its office only was located there. Consequently, the main part of Rule 8 is inapplicable.

63. There has, in substance, been no contravention of Rule 7 and the second part of Rule 8. These rules do not lay down that the wish of the landlord shall be accepted in each and every case. The two important ingredients of these rules are that the landlord shall be consulted and as far as possible allotment made in accordance with his wishes. In other words, if the landlord makes any illegal or improper request, his wishes shall not be accepted. Further, if the landlord acts arbitrarily while indicating his wishes, the Rent Control and Eviction Officer can pass an order in favour of a suitable person. The underlying idea of Rule 7 and second part of Rule 8 is that a part of the accommodation be not ordered to be let to a person to the annoyance of the landlord. For example, if the accommodation is a residential one, it will not he proper to allot a part of the accommodation to one who is a non-vegetarian when the landlord belongs to that class which does not take meat and, in fact, the taking of meat is against his religion and conscience. A part of the accommodation cannot also be allotted to one who is apparently on inimical or litigation terms with the landlord.But where the landlord has no objection to the accommodation being occupied by a person, there is no disregard of Rule 7, nor of Rule 8, when the present case, (sic) the landlord, namely, respondent No. 2, had no objection to the accommodation being occupied by the petitioner. What it desired was that the petitioner should have the status of a sub-tenant and not of tenant. This request was, as already observed above, against the law and could not be allowed. When respondent No. 2 had no objection to the petitioner occupying the accommodation, it shall have to be held that the allotment was made in accordance with the wishes of the landlord.

64. It is true that there is no documentary evidence on record to show that there was prior consultation with the landlord; but this irregularity, if any, is of no importance and is not such as would justify the quashing of the orders of theRent Control and Eviction Officer. Even if there was no formal consultation, respondent No. 2 had an opportunity to express its wishes were, in substance, accepted and the petitioner was permitted to occupy the accommodation, of course, as tenant and not as sub-tenant.

65. There is an error in the order of allotment, Annexure 'E', dated 17-1-1959. The accommodation is referred to as situated in Halwasiya market, though in fact it is situated in Halwasiya Court. A perusal of the affidavits on record makes it clear that all the parties were aware from the very beginning to which accommodation the order of the Rent Control and Eviction Officer pertained. The mistake attains lesser importance on account of further particulars given in the Schedule of Annexure 'E'. It was clearly noted therein that the allotment was with regard to that portion which was occupied by Royal Cafe, that is, by the petitioner. It is not in dispute that the accommodation in question was occupied by the petitioner for running 'Royal Cafe'. The minor mistake in Annexure 'E' can thus be disregarded.

66. Further, under Section 95 of the Evidence Act the petitioner can adduce evidence to prove to which accommodation the order relates. This he has done by giving facts in his affidavits. He can also rely upon the counter-affidavits and their annexures. Section 95 lays down that when language used in a document is plain in itself but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. The illustration to this section also makes it clear that the document shall be deemed to pertain to the correct property and mistake in the description, thereof shall not prove fatal. In the present case, the parties were aware from the beginning to which property the order, Annexures 'E' and 'G', dated 17-1-1959 and 19-3-1959 related, and consequently slight wrong description of the location thereof shall not in any way invalidate the orders.

67. To conclude, the order of the State Government, Annexure 'K', dated 8-2-1960 is under both the Sub-sections (2) and (3) of Section 7 of the Act under Sub-section (3) to the extent respondent No. 3 could sub-let the accommodation and under Sub-section (2) in that respondent No. 3 was directed to sub-let the accommodation to the petitioner. The State Government had no jurisdiction to pass an order under Sub-section (3) of Section 7, nor could it, in exercise of the jurisdiction under Section 7-E, interfere with the order of the District Magistrate (Rent Control and Eviction Officer) when no permission for sub-letting was granted. Further, under the Act the Rent Control authorities including the State Government had no jurisdiction to pass an order under Section 7(2) in favour of a person who was not to occupy the accommodation but was to sub-let it. The order, Annexure 'K', of the State Government is thus without jurisdiction and deserves to be quashed. The claimants for the lease of the accommodation were the petitioner and Messrs. Property Agents, respondent No. 3. No other person made any claim before the Rent Control and Eviction Officer, nor before the State Government. The accommodation could not be allotted to respondent No. 3,and hence it was to be allotted to the petitioner, all the more, when there has been no contravention of Rules 7 and 8. Further the application under Section 7-F of the Act was made by respondent No. 2, the landlord, and not by anyone who wanted the accommodation to be leased to him. On the basis of the present application under Section 7-F the State Government could not issue a direction under Section 7 (2) for the lease of the accommodation to any person other than the petitioner. Further-more, respondent No. 2 wanted the petitioner to occupy the premises as a sub-tenant and not as tenant. This was not possible, and consequently when the accommodation was ordered to be let to the petitioner, in the eye of law, it was allotted in accordance with the wishes of the landlord. The present is thus a case in which the State Government, could not, in any manner, modify the order of the Rent Control and Eviction Officer; and hence it is but proper that the order, Annexure 'K', be quashed without leaving it open for the State Government to reconsider the matter.

68. It is not necessary to quash the order, Annexure 'F' dated 19-2-1959 as the Rent Control and Eviction Officer himself vacated it by later passing a legal order on 19-3-1959.

69. When the order, Annexure 'G', dated 19-3-1959 of the Rent Control and Eviction Officer is in force, the landlord, namely, respondent No. 2 was to let the accommodation to the petitioner. In other words Messrs. Property Agents, respondent No. 3, had no right to move the application under Section 7-B and the proceeding based thereon and pending before the Munsif becomes infructuous and shall also have to be quashed.

70. The petition is hereby allowed with costs payable by respondent Nos. 2 and 3 only, and the order dated 8-2-1960 of the State Government, Annexure 'K' to the affidavit, whereby the order dated 19-2-1959 of the Rent Control and Eviction Officer (Town Rationing Officer/District Supply Officer, Lucknow), Annexure 'F' to the affidavit, was restored, is hereby quashed. In the eye of law, the order dated 19-3-1959 of the Rent Control and Eviction Officer, Annexure 'G' to the affidavit is still in force, as a result of which the petitioner is the tenant of Messrs. Ganeshdas Ramgopal, respondent No. 2. He is not the sub-tenant of Messrs. Property Agents, respondent No. 3; and consequently the proceeding under Section 7-B of the U. P. (Temporary) Control of Rent and Eviction Act initiated by respondent No. 3 and pending before Munsif (South), Lucknow, is without jurisdiction and is hereby quashed. It is not necessary to issue a writ of mandamus as the effect of the orders being passed is that the petitioner continues to be the tenant of the premises in question in pursuance of the order Annexure 'G' to the affidavit, dated 19-3-1959 read with the order, Annexure 'E' to the affidavit, dated 17-1-1959, and all the respondents shall treat him as tenant of respondent No. 2.


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