Ram Gopal Gupta vs District Judge and Others

Satish Chandra, J.—It appears that one Bandi Din was the tenant of the premises in question. He died on 8th November, 1971. The Rent Control Officer declared vacancy, and after considering the applications, allotted the accommodation in question to the Petitioner, Ram Gopal, on 15th June, 1972. The allotment order in Form ''B'' was actually issued on 16th June, 1972. When the Petitioner went to take possession, he was obstructed by Respondent No. 4, Kishori Lal.

On 21st August, 1972, Kishori Lal, Respondent No. 4, applied to the Prescribed Authority u/s 16(5) of Act 13 of 1972. He claimed that no was a lawful occupant of the accommodation and that the allotment order be reviewed. The Prescribed Authority, by an order dated 11th May, 1973, rejected the application. Aggrieved, Respondent No. 4 filed an appeal u/s 18 of the Act of 1972.

The Additional District Judge went into the merits of the matter and allowed the appeal. He held that Respondent No. 4 was in occupation of the house in dispute along with his father, Bandi Din. and on the death of Bandi Din, he inherited, the tenancy. He was hence in lawful occupation. The house was not vacant. The allotment order was illegal. He by an order dated 19th December, 1973, allowed the appeal and cancelled the allotment order in favour of Ram Gopai. Aggrieved, Ram Gopal has come to this Court under Article 226 of the Constitution.

Learned Counsel for the Petitioner submitted that Section 16(5) of the Act of 1972 was not at all applicable and the authorities below had no jurisdiction to entertain the application filed by Respondent No. 4. He further submitted that the finding that the Respondent was a lawful occupant was vitiated by a manifest error of law.

The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 13 of 1972 came into force on 15th July, 1972. Section 16 of the said Act relates to allotment and release of vacant buildings. Sub-section (5) thereof provides:

(5)(a). Where the landlord or any other person claiming to be lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance With Clause (a) or Clause (b), as the case may be, of Sub-section (1), the District Magistrate may review this order;

Provided that no application under this clause shall be entertained later than seven days after the eviction of such person.

(b) Where the District Magistrate on review under this Sub-section sets aside or modifies his order of allotment or release, be shall put or cause to be put the applicant, if already evicted, back into possession of the building, and may for that purpose use or cause to be used such force as may he necessary.

Ex facie Clause (a) contemplates a case where the District Magistrate has passed an order made in accordance with Clauses (a) and (b) of Section 16(1). An allotment order under Clauses (a) and (b) of Section 16(1) could be passed only after the Act had come into force. No such order could be passed on 16th June, 1972, when the impugned allotment order was in fact issued. This construction gains strength from the provisions of Section 43, which provides for repeal and savings. It repeals the U.P. (Temporary) Control of Rent and Eviction Act, 1947, under whose Section 7(2) the impugned allotment order was passed. Clause (k) of Section 43(2) provides:

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In a case where the allotment order was made more than thirty days before 15th July, 1972 this provision expressly makes it final. It will be incongruous that an order professedly made final by Section 43 should, by virtue of Section 16(5), be open to review, if it can be reviewed, the order cannot possibly have any finality.

In other cases Clause (k) provides for an appeal to the District Judge. Section 16(5) should not be read so as to make a provision for review by the District Magistrate of the same order which has expressly been made appealable.

Section 16(5) is a general provision. It provides for review of any or every allotment order within its ambit Clause (k) of Section 43(2) is a special provision which deals with allotment orders passed u/s 7(2) of the old Act. It specifically refers to the repealed Act as the Old Act. Section 16(5) does not refer to Section 7(2) of the Old Act but confines itself to an order made under Clause (a) or Clause (b) of Section 16(1). Clause (k) of Section 43(2), being a special provision, will exclude those orders which fall with in its purview, from attracting Section 16(5).

Clause (b) of Section 43(2) relates to proceedings pending u/s 7 of the old Act immediately before the commencement of the new Act. It provides that they will be disposed of in accordance with the provisions of Sections 16 and 17 of the new Act. This makes it abundantly clear that orders in respect of which no proceeding was actually pending on 15th July, 1972 were outside the purview of Section 16. Orders passed, which are spoken of in Clause (k) and in respect of which no proceeding was pending, could not hence be governed by Section 16,

Learned Counsel for the Respondent relied on Rameshwar Prasad Agarwal v. The Ist Addl. Distt. Judge, Allahabad AIR 1976 All. 323. It was held in that case that u/s 43 all pending proceedings u/s 7 of the old Act were to be treated as proceedings u/s 16 or Section 17 of the new Act. That was a case in which proceedings u/s 7 of the old Act were pending on 15th July, 1972. The case was clearly governed by Clause (b), which specifically brings in Section 16. In the present case no such proceedings were pending.

Learned Counsel invited my attention to Mahesh Kumar v. Ist Additional District Judge 1977 U.P.RCC 247. In that case also proceedings for setting aside the allotment order were initiated under the old Act and were pending when the new Act came into force. They were governed by Clause (b) and not by Clause (k). The case is not helpful.

In Raghuraj v. State of U.P. 1977 U.P. RCC 553 the finding was that proceedings u/s 7-A were pending when the new act came into force. Consequently they were liable to be disposed of in accordance with Section 16. The case is clearly distinguishable.

It is thus clear that the application for review filed on 21st August, 1972, was not maintainable. Since the application itself was not maintainable u/s 16(5), no appeal lay. An appeal did lie under Sub-clause (2) of Clause (k) of Section 43(2), but no such appeal was filed. The appeal was actually filed after 17-5-1973, much beyond the 60 days'' time for it.

In the result, the writ petition succeeds and is allowed. The impugned order of the Additional District Judge as well as the proceedings in virtue of the application for review dated 21st August, 1972, are quashed. The Petitioner will be given possession in accordance with law. The Petitioner would be entitled to costs.