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Mohd. Yususf Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 910 of 1969
Judge
Reported in6(1970)DLT371
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 19; Displaced Persons (Compensation and Rehabilitation) Rules, 1955 - Rule 102
AppellantMohd. Yususf
RespondentUnion of India
Advocates: O.P. Malhotra,; A.B. Saharia and; D.K. Kapur, Advs
Cases ReferredJagjit Singh Duggal v. Union of India
Excerpt:
.....this authority, thereforee, lays down unmistakably that in a case like the present one where the property has been auctioned, respondent no. the said matter, however, was clearly noticed in the roshan lal goswami's case and in that view of the matter this authority is of no assistance to mr. (as he then was). the later case has clearly laid down that if there is a lack of inherent jurisdiction the same matter can be urged for the first time in writ petition even if the point has not been taken before the authorities below. 2 would be clearly an unauthorised occupant and thereforee, the exercise of jurisdiction under article 226 of the constitution should not be exercised in bids favor, but that is again urging the same point though in a different manner which has been disposed of under..........by another person, shri ganga dhar. it is further alleged that on 16th november, 1957, the managing officer wrote to petitioner no. 1 that the provisional possession of the property bearing no. 946 has been given to respondent no. 2 and that he should pay the rent to her with effect from 21st september, 1957. a notice was received by petitioner no i in which he was asked to pay the rent as a tenant to respondent no: 2, the petitioner states that he started paying the rent to respondent no. 2 eversince. it is also stated that with effect from 22nd october 1958 the rate of the rent was enhanced at rs. 10/ par month (previously it used tobers.8/pm.),andthatthesame rent has been paid by him to respondent no. 2. the same situation continued right up to 1968 when the petitioner.....
Judgment:

Rajindar Sachar, J.

(1) This petition under under Articles 226 and 227 of the Constitution of India challenges the issuance of notice of eviction issued to the petitioners under Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act. 1954, (hereinafter to be referred to as the Act) ; issued by the Managing Officer and which has been affirmed by the authorities including the Central Government acting under Section 33 of the Act.

(2) The admitted facts of the case are that petitioner No. 1 was in occupation of property No. 946 while petitioner No. 2 Was in occupation of property No 945. It is alleged in the petition that auction of the property took place on 22nd June 1957 and the portion bearing the No. 946 was purchased at the public auction by respondent No. 2, Budha Bai and portion bearing No. 945 was purchased by another person, Shri Ganga Dhar. It is further alleged that on 16th November, 1957, the Managing Officer wrote to petitioner No. 1 that the provisional possession of the property bearing No. 946 has been given to respondent No. 2 and that he should pay the rent to her with effect from 21st September, 1957. A notice was received by petitioner No I in which he was asked to pay the rent as a tenant to respondent No: 2, The petitioner states that he started paying the rent to respondent No. 2 eversince. It is also stated that with effect from 22nd October 1958 the rate of the rent was enhanced at Rs. 10/ par month (previously it Used tobeRs.8/PM.),andthatthesame rent has been paid by him to respondent No. 2. The same situation continued right up to 1968 when the petitioner received a notice from the Managing Officer alleging that he had parted the possession of the premises No. 946 to petitioner No, 2 and asking him to show cause why his tenancy should not be cancelled. The cause was shown by petitioner No. 1 and ultimately the Managing Officer by his order dated 10th June 1963 held that petitionr- No. 1 who was previously living in premises No. 946 had shifted to premises No. 945 and petitioner No. 2 who was previously living in premises No, 945 had shifted to premises No. 946. It was further held that this change amongst petitioners 1 and 2 had taken place after the property had been parchased by respondent No. 2 and after provisional possession had been issued to her. The managing Officer held that petitioner No. 1 had parted with possession of premises No. 946 and petitioner No. 2 was an unauthorised occupant of premises No. 946 and consequently both were liable to be evicted from premises No. 946- It is relevant to mention that we are not concerned in this petition with premises No. 945. The petitioner filed appeal and further revision but the same were dismissed by the Chief Settlement Commissioner and ultimately the revision before the Central Government also. failed, It is in these circumstances that the present writ petition has been filed.

(3) Cause has been shown by the respondents who have filed their respective rejoinders. It is not disputed that provisional possession has been transferred to respondent No. 2 nor has it been disputed that the department asked petitioner No. 1 to attorn to respondent No. 2. Respondent No. 2 has also filed her affidavit and has not denied that the rent had been enhanced from Rs, 8 to Rs. 10 and that petitioner No. 1 has been paying rent to her ever-since 1952. It is further stated in the written-statement that the mere fact of provisio possession having been given to respondent No 2 does not mean that the Central Government has no jurisdiction to act in respect of the eviction of petitioners 1 and 2 from the premises in dispute. It is further alleged that till the property is transferred by means of a sale deed the jurisdiction of the Central Government under the Act and the Rules will remain and can be exercised against petitioner No. 1.

(4) The short point for determination in the writ petition, thereforee, is whether the authorities under the Act have any jurisdiction to exercise powers under section 19 of the Act read with Rule 101 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955; (herein after to be referred to as the Rules) against a person like the petitioner on the alleged ground that he has parted with possession of his tenancy in spite of the fact that the said property has been sold at public auction to respondent No, 2 through the sale certificate has not yet been issued 'to her.

(5) By virtue of section 12 of the Act the evacuee property on the issuance of a notification vests in the Central Government, Such property under Section 13 of the Act is to be utlised for payment of compensation and forms a part of the compensation pool under Section 14 of the Act. Section 19 of the Act provides that the Managing Officer may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under the Act is held or occupied by a person whether such allotment or lease was granted before or after the commencement of this Act. Section 19(2) provides that where any person is in unauthorised possession of any evacuee property forming part of the compensation pool he is liable for eviction. Rule 102 of the Rules further provides that a Managing Officer may in respect of the property in the compensation pool entrusted to him cancel an allotment on the grounds mentioned in that Rule and clause (a) of the Rule provides for the cancellation if the lessee has parted with the possession of the whole or any part of the property leased or allotted to him without the premission of the competent authority. The retuurn by the respondents asserts that the impugned order of concellation of the petitioner's lease has been done by virtue of powers under section 19 of the Act read with Rule 102 of the Rules. thereforee, to decide is whether such power continues to vest in the authorities under the Act even when the property has been sold at public auction.

(6) Section 20 of the Act provides for transfer of any property out of the compensation pool-by various methods and one of the method being by sale of such property at a public auction' Rule 90 provides for a procedure when the property is to be sold by a public auction. Clause (14) of Rule 90 further provides that if the auction purchaser does not pay the full price within the specified period, the initial deposit made by the auction purchaser shall be liable to forfeiture and he shall not have any claim to the property. Clause (15) provides that if the full price has been realised, the auction purchaser shall be issued a sale certificate in the form prescribed. Rule 92 further provides the procedure for setting aside the sale made under Rule 90.

(7) The respondents have alleged that neither the full price has yet been paid by respondent No. 2 nor the sale certificate has yet been issued Mr. A. C. Gambhir, the learned counsel for the petitioners does not dispute this fact. He. however urges that once the .property had been sold by public auction in 1957 there was no jurisdiction in the Managing Officer or any other authority under the Act to take action against him in the purported exercise of power under Section 19 of the Act. His submission is that he had been asked to attorn by the department to respondent No. 2 who now was his landlord and the only way that he could be evicted by respondent No 2 was by having recourse to the Rent Controller by virtue of the Delhi Rent Control Act, 1958. He submits that even if the sale certificate has not yet been issued and even if the full price has not yet been paid, it is still not open to the authorities under the Act to proceed against him because the Managing Officer by giving the provisional possession of the property to respondent No 2 and asking him to pay rent to him had made him a tenant of respondent No. 2 and, thereforee, the provisions of Delhi Rent Control Act, 1958, were applicable. In this connection he has referred me to Section 3 and proviso of Delhi Rent Control Act, 1958 which is as under: -

'NOTHINGin this Act shall apply.- (a) to any premises belonging to Governmant : or (b) to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government : Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or orherwise then, notwithstanding any judgment. decree or order of any court or other authority the provisions of this Act shall apply to su'h tenancy.'

(8) He has relied on Shiv Nath etc. v. Shri Mela Ram etc- wherein this matter was considered and their lordships of the Supreme Court has as follows:-

'EVENif it were assumed that the premises belonged to Government it would have to be held in the circumstances of the case, that it was lawfully let by the respondent to the appellants inasmuch as the Managing Officer's giving 'provisional possession of the property to the respondent' would really mean delivering symbolical possession of the property to him with the result that a direction on the appellants to pay rent to him would in effect amount to a direction to attorn to him. We are not impressed by the argument that letting' within the meaning of proviso can only apply to a voluntary act on the part of the landlord allowing the former tenant to continue in possession. Acting in pursuauce of the direction of the managing officer after the property had been auctioned ta the respondent would in law amount to a letting by the respondents the persons who were tenants under the custodian before.'

(9) This authority, thereforee, lays down unmistakably that in a case like the present one where the property has been auctioned, respondent No. 2 could only avail of the provisions of the Rent Control Act if he wanted to have an order of eviction against the petitioner.

(10) The right of an auction purchaser who has brought the property at a public auction to evict the allottee was recognised in a case reported as Roshan Lal Goswami v. Gobind Raj a Division bench j'udgment of the Punjab High Court. In that case the auction purchaser had filed a suit to evict the tenant. The landlord had taken the plea that he was entitled to evict the tenant even though the sale certificate had not been issued in his favor by filing a suit in ordinary civil court. This plea was accepted by the Division Bench which held that his right to the remedy is not taken away simply because the landlord has not yet perfected his title to complete ownership. The Division Bench has held that a person who is in poossession, but not legally an owner is still entitled to certain rights by virtue of his possession alone and thereforee, the auction purchaser was competent to file a suit for eviction of the tenant. The tenant had sought to escape eviction by referring to section 3 of the Delhi and Ajmer Rent Control Act of 1952, to the provision which stated that: - Nothing in this act shall apply- (a) to any premises belonging to the Government.' The Division Bench further held that as the ownership still vests in the Government and not in the auction purchaser, the above provisions are not attracted and thereforee, the tenant could not invoke them. Reference was also made to Section 19 of the Act, but this plea was not accepted because it was held that as the Managing Officer had parted with the possession to the auction purchaser, he was no longer competent to deal with it. The Division Bench held as follows :-

'SECTION 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, gives certain powers to the Managing Officers regarding variation and cancellation of leases, subject to the provisions of the statutory rules. According to Rule 102 of the Displaced Persons (Compensation and Rehabilitation) Rules, a managing officer may in respect of the property in the compensation pool ebtrusted to him terminate a lease, where the lessee has sublet or parted with the possession of the property leased, or has used property for a purpose other than that for which it was leased, or has committed any act of waste, or for any other sufficient reasons to be recorded in writing. In all these cases, the lessee has to be given a reasonable opportunity of being heard. Reference to the above provisions, relating to the powers and limitations of the managing officers serves no useful purpose in these proceedings, as the managing officer has already parted with posses-lion to the auction-purchaser and had askea the tenants to attorn to the transferee. The rights and obligations formerly of the managing officer hence forward are of the auction purehaser in possession-'

(11) This case was noted with approval in Bishan Paul v.Mothu Ram* In this case their lordships of the Snpreme Court have held that it is not necessnry that the title to the property purchased at auction will only pass on the issuance of a certificate and that the title will pass when the full price has been paid This case explains the earlier case reported as M/s Bombay Salt and Chemical Industries v. L.J Johason on the basis of which certain courts were inclined to hold that even if Controller and the other by the Managing Officer exercising power under Section 19 of the Act, To me it seems that this would lead to an anomalous result and an obvious inconvenience and hardship not contemplated by the Act. It is a truism to say that if an interpretation leads to hardship and inconvenience and absurdity the said interpretation must be avoided Reference may be made to Tirath Singh v. Bachittar Singh I am, thereforee, of the opinion that the Managing Officer and the authorities under the Act have no jurisdiction to exercise the power under Section 19 of the Act so as to order eviction of the petitioner

(12) Mr. Kapur in this connection relied on Bardley Dudley Baxter v. T L Bhagtiani for the proposition that if a person was an unauthorised occupant of a premises which had been sold, he could be proceeded against under Section 19 of the Act. The said case, however, is distinguishable as I find that in that case the main point was whether the occupant was an unauthorised and its having been so held his lordship went on to hold that his tenancy could be terminated by issue of notice under Section 19 of the Act. The point where the provisional possession having been given and the tenant having been asked to attorn to the auction purchaser provision of Section 19 o{ the Act cannot be invoked was not urged and thereforee, no decision was given on that point. The said matter, however, was clearly noticed in the Roshan Lal Goswami's case and in that view of the matter this authority is of no assistance to Mr. Kapur. I would, thereforee hold that the impugned order assed by the Managing officer and later on confirmed by respondent No. 1 terminating the lease of the petitioner and ordering his eviction was without authority of law and without jurisdiction and must be quashed and I do so accordingly.

(13) Mr. Kapur also urged that this point of jurisdiction was not taken before the authorities under the Act and, thereforee, the petitioner should not be allowed to take this point. This, however, is not borne out by record as would be clear from a perusal of the order of Settlement Commissioner filed as annexure I where it was mentioned that the Managing Officer was functus officio as the property had been sold to respondent No. 2. Mr. Kapar wanted to rely on Jagatjit Cotton Textile Mills Ltd. v. Industrial Tribunal Patiala but the force of that decision has been greatly whittled down by later decision reported as Davinder Singh and another v. Deputy Secretary' the leading judgment was written by H. R. Khanna J. (as he then was). The later case has clearly laid down that if there is a lack of inherent jurisdiction the same matter can be urged for the first time in writ petition even if the point has not been taken before the authorities below. The question of jurisdiction of the Managing offleer relates to his inherent lack of jurisdiction and even if the point was not urged before the lower court, the petitioner could still be entitled to raise-the point in this court. Mr. Kapur then contends that petitioner No. 2 was in occupation of the premises in dispute namely No. 946, petitioner No. 2 would be clearly an unauthorised occupant and thereforee, the exercise of jurisdiction under Article 226 of the Constitution should not be exercised in bids favor, but that is again urging the same point though in a different manner which has been disposed of under point No. 1. It is quite clear that if respondent No. 1 and the Managing Offiicer has no jurisdiction Controller and the other by the Managing Officer exercising power under Section 19 of the Act. To me it seems that this would lead to an anomalous result and an obvious inconvenience and hardship not contemplated by the Act. It is a truism to say that if an interpretation leads to hardship and inconvenience and absurdity the said interpretation must be avoided Reference may be made to Tirath Singh v. Bachittar Singh I am, thereforee, of the opinion that the Managing Officer and the authorities under the Act have no jurisdiction to exercise the power under Section 19 of the Act so as to order eviction of the petitioner

(12) Mr. Kapur in this connection relied on Eardley Dudley Baxter v. T L Bhagtiani for the proposition that if a person was an unauthorised occupant of a premises which had been sold, he could be pro- ceeded against under Section 19 of the Act. The said case, however, is distinguishable as I find that in that case the main point was whether the occupant was an unauthorised and its having been so held his lordship went on to hold that his tenancy could be terminated By issue of notice under Section 19 of the Act. The point where the provisional possession having been given and the tenant having been asked to attorn to the auction purchaser provision of Section 19 of the Act cannot be invoked was not urged and thereforee, no decision was given on that point. The said matter, however, was clearly noticed in the Roshan Lal Goswami's case and in that view of the matter this authority is of no assistance to Mr. Kapur. I would, .therefore hold that the impugned order passed by the Managing officer and later on confirmed by respondent No. 1 terminating the lease of the petitioner and ordering his eviction was without authority of law and without jurisdiction and must be quashed and I do so accordingly.

(13) Mr. Kapur also urged that this point of jurisdiction was not taken before the authorities under the Act and, thereforee, the petitioner should not be allowed to take this point. This, however, is not borne out by record as would be clear from a perusal of the order of Settlement Commissioner filed as annexure I where it was mentioned that the Managing Officer was functus officio as the property had been sold to respondant No. 2. Mr. Kapur wanted to rely on Jagatjit Cotton Textile Mills Ltd. v. Industrial Tribunal Patiala but the force of that decision has been greatly whittled down by later decision reported as Davinder Singh and another v. Deputy Secretary the leading judgment was written by H. R. Khanna J. (as he then was). The later case has clearly laid down that if there is a lack of inherent jurisdiction the same matter can be urged for the first time in writ petition even if the point has not been taken before the authorities below. The question of jurisdiction of the Managing officer relates to his inherent lack of jurisdiction and even if the point was not urged before the lower court, the petitioner could still be entitled to raise the point in this court. Mr. Kapur then contends that petitioner No. 2 was in occupation of the premises in dispute namely No. 946, petitioner No. 2 would be clearly an unauthorised occupant and thereforee, the exercise of jurisdiction under Article 226 of the Constitution should not be exercised in bids favor, but that is again urging the same point though in a different manner which has been disposed of under point No. 1. It is quite clear that if respondet No. 1 and the Managing Officer has no jurisdiction to take proceedings against the petitioners under Section 19 of the Act, their order cannot be up-held as the order against both the petitioners is one consolidated.

(14) Reference may also be made to Civil Writ Petition No. 379-D of 1962, Jagjit Singh Duggal v. Union of India decided on 12th March 1970 by Deshpande J. The facts of that case were that by private negotiation premises in dispute were agreed to be sold to the All India Congress Committee. The said transfer was neither by public auction under Rule 90 nor by invitation of tenders under rule 91. As the negotiations were for private sales the same were governed by the Transfer of Property Act. Section 54 of the Transfer of Property Act lays down that a contract for sale of immoveable property by itself does not create any interest in or charge on such property. A notice had been issued under Section 19 of the Act to the tenants of those premises to show cause why their tenancy be not cancelled. Having failed before the authorities the tenants had filed a writ petition which was disposed of by Deshpande J. His lordship held that as the title had not yet passed to All India Congress Committee, but remained vested in the Central Government the Managing Officer had Jurisdiction to deal with the petitioner as tenants. In the said judgment his lordship stated as follows-

'ITfollows, thereforee, that the title to the premises did not pass to the All India Congrees Committee but remained vested in the Central Government The mere statement of an Officer in a letter that the department was not responsible to make repairs to the premises inasmuch as they had been transferred-to the All India Congress Committed or the fact that the rent arrears wire demanded from some tenants up to 1959 only do not constitute a transfer of the premises in favor of the All India Congress Committee if there was no legal transfer at all. The Managaing Officers had, thereforee, the legal title and jurisdiction to deal with the petitioners as tenants. It is significant that no attornment of tenants was made by the Central Government to the All India Congress Committee. Nor was any rent paid by the tanants to the All India Congress Committee. The tenants, thereforee, continued to be the tenants of the Central Government who could be dealt with by the Managing Officer under the provisions of the Act of 1954 and the Rules framed there under. I find so.'

-

(15) From the above observations it Is quite clear that his lordship made a distinction between those cases where attornment of tenants is made by the Government to the Auction purchasers or the rent is paid by the tenants. In the case before Deshpande J. neither the rent had been paid to the All India Congress Committee nor had the tenants been asked to attron to it. In that view of the matter Deshpande J. held that the power to cancel the tenancy under Section 19 of the Act was still available to the Managing Officer in the cireumstances of that case. In the present case, however, the possession has been parted with by the Managing Officer by giving provisional possession to respondent No.2 and further the petitioner was asked to attorn to the respondent. In that situation the case is covered by the judgment reported as Roshan Lal Goswami's case

(16) Before I part with the case I must say the way the case has been dealt with by the departmental authorities is to say the least shocking and shows the lethargic manner in which the matters ire dealt with by the departmental authorities. The property was auctioned as far back as 22nd June 1957. Some part of the purchase price is still stated to be due from the auction purchaser. Even now after the lapse of 13 years neither the purchase price has been realised in full nor has the sale been cancelled under the rules. A kind of lethargic indifference has been the key note of dealing with this whole matter, yet when it came to the question of proceeding for eviction the departmental authorities immediately took up the cudgel on behalf of respondent No. 2, even though respondent No.2 has not yet been able to fulfill her part of the bargain. It is to be hoped that the departmental authorities will devote some serious attention to this and finalise the case which has been dragged on for 13 years.

(17) The result is that this petition is allowed and the order of the Central Government (annexure K) up- holding the order of the Officers below is hereby quashed and set aside. In the circumstances of the case will be no order as to costs.


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