MANSARAM v. S. P. PATHAK: AND OTHERS

.The Judgment of the Court was delivered by H DESAI, J., Appellant Shri Mansaram son of Shri Chanduram .Sharma was serving in the telephone office at Naspur and was th~

142 .SUPREME COURT REPORTS f1984l 1 s.c.R.

holding an,dllce ofprofitunder the •Union of India. He took on A lease premises on a ·monthly rent of Rs. 75 per month, more parti· cularly described in the application made to the House Allotment Officer, Nagpur by first respondent Shri S. P. Pathak, from the then• owner of the.premises one Shri 1jasantrai Sharma. He continued to be in possession even after his retirement from service in 1967. Shri Basantrai Sharma died and there .js a dispute. between respon- B dents 3 and 4 and Shri Prabhakar about succession to the estate of the deceased Shri Basantrai Sharma. Respondents 3 and 4 claimed to-be the legatees under a will of deceased Shri Basantrai Sharma. Respondent No. I S)lri S. P. Pathak made an application to House Allotment Officer, Nagpur registered as .Miscellaneous Case No. c 51/A-71(2)/76-77 against the present appellant Mansaram alleging that the appellant had occupied the premises involved . in the dispute in contravention of rnb-cl. (2) of Clause 22 of the Central Provinces and Berar Letting of Houses and Rent Control· Order, 1949 ('Rent Control Order' for short), in that he occupied the premises to which D Chapter III of the Rent Control Order applies w\ithout obtaining an order under sub-cl. (I) of Clause- 23 or Clause 24 or without an assurance from the landlord that the premises are being permitted to be occupied in accordance with sub-cl. (2) of Clause 23. To this petition, respondent 4 Smt. Usha Rani N. Sharma was also impleaded as a respondent but after having once appeared through advocate, she did not prefer to remain present, along with her counsel and the House Allotment Officer proceeded against her ex parte. In the application made by Shri S. P. Pathak, 1st respondent on December 7, 1976, it was in terms stated that the appellant Shri Mansaram Sharma was a Government servant employed in the telephone department at Nagpur and the appellant has now retired from .service and therefore, is not entitled to retain .the. demised pre• mises. It was further alleged that the former owner of the premises Shri Basantrai Sharma has died. The premises have been inherited by respondent 4 Smt. Usha Rani N. Sharma and she and the tenant Mansaram· Sharma have conspired together and are violating the provision of Jaw by letting Shri Mansaram Sharma to continue to Jive in the premises. It was further alleged that the appellant Shri S. P. Pathak was badly in need of premises and therefore, the pr~mises may be allotted to him.

H Appellant Shri Mansram Sharma appeared and filed a written statement inter alia contending that he occupied the premises on the a,ssurance ,~iven br t)le then landlord Shri Basautrai Sjiarma th;it

MANSARAM v. S.P. PATHAK (Desai, J.) 143

,-the house.is being permitted to be occupied in accordance with sub-cl. (2) of Clause 23. It was further contended that in a pro- A ceeding under the Rent Control Order, that late Shri Basantrai Sharma, the decea~ed landlord, .had sought possession of the pre- mises on the gro~nd of bona ·fide personal requirement but he had Jost the same. It .was further l!lleged . that Shd S. P. Pathak is a near relation of Shri Basantrai Sharma and that he has ·been put B forward by Smt. Usha Rani N. Sharma for seeking a collusive order. .It wasforther alleged that it is incorrect to say that he occupied the house under any allotment order. It was further stated that since his retirement in July, 1967, he has been accepted as tenant and therefore, no proceeding can be taken against him under Clause 28 of the Rent Control Order for alleged contravention of clause 22. c The .House Allotment Officer held that Shri Basantrai Sharma Jet out the premises to the appellant in the year 1954 in contraven- tion of clause 22(1) (b) of the Rent Control Order and the appellant occupied the premises in contravention of clause 22(2) .of the Rent D Control Order and therefore, he was liable to be evicted under clause

28. It was further held that the appellant had occupied the pre- mises when be was holding an office of profit under the Union of India and now that he has retired, he is not. entitled to continue in the premises and therefore, also he is liable to be evicted. Accor- dingly, the House Allotment Officer by his order dated November 2, I 977 gave a direction to the appellant to vacate the premises within a fortnight from the communciation of the order and deliver the possession of the premises to -Smt. ·Usha Rani N. Sharma failing which action will be taken under clause 28(1) of the Rent ·Control .Order. F {\ppe!lant filed a Sp~cial Civil ~pplication )'lo. 1957 of1977 before ,the Nagpur Bench of' the Bombay High Court. A learned $ingle Judge dismissed ,the ·p~tition in limine. Hence this appeal ,by special leave. G. At .the outset, we ~ust confess that .th,e learned Single Judge ,was comp]etely in error injecting ,the· petition under Art. ·221 of the Constitution in limine b.ecause various point~ raised by the appellant a.re .suqb that atleast a reasoned dec.ision by .the High Court was a must or atleast a speaking order briefly showing why .these conten- H tions. did not .:f\nd favour with the High Co.urt. At one stage, we wQre toying with the id~a to remit t~ ·lllat.\er .to the High Court but

p. 144 Copy page pinpoint

· that would merely be further &laying the already over delayed proceedings.

\ Order 22 of tlle Rent Control Order reads as Under :

"22(1)-Every landlord of a house situated in an B area to which this Chapter extends, shall-

(a) within seven days from the date of the extention of this chapter, if the house is vacant on such date; or

(b) within seven days froin the date on which the land- c lord becomes finally aware that the house will become vacant or available for occupation by himself -. ·- or for other occupation on or about a specified date; give intimation of this fact to the Collector of the district in which the area is included or such other officer as may be specified by him, in the Form given in the Schedule appended to this Order, and shal.l not let or occupy the house except in accor· dance with sub-clause (2) of clause 23."

(2) No person shall occupy any house .in respect of which this chapter applied except under an order under sub-clause (1) of clause 23 .or clause 24 or on an assu· ranee from the landlord that the house is being permitted to be occupied in accordance with sub-clause (2) of clause 23." ·

F Clause 23 provides that within fifteen days from the date or'receipt of intimation of vacancy under Clause 22, the· Collector may order the landlord to let the vacant premises to any person holding an office of profit under the Union or the .State Government or !O any person holding a post under the Madhya Pradesh Electricity Board · or to displaced person or to an evicted person· and thereupon not withstanding any agreement to the contrary, the landlord shall let ·the house to such person and place him ii:t possession thereof immediately, if it is vacant or as soon as it becomes vacant. There :is a proviso to clause 23 which provides that simultaneously while giving intimation o( .the vacancy. if the landlord intimates to the ·Collector that be needs the house which has fallen vacant or is likely to fall vacant for his occupation, the Collector shall, if satisfied <1fter gue enquiry that the house is so needed, permit the landlord

MANSAl\AM v. S.P. PATHAK (Desai, J.) 145

to occupy the same. This proviso is not relevant ·for ·the present purpose. Sub-clause (2) of Clause 23 provides that if no order is passed and served upon the landlord within the period specified in sub-clause (\), he shall be free to let the· vacant house to any person. Clause 25 provides that where a person is allotted the premises an~ is put in possession thereof by an order under clause 23 or 24 A, his tenancy shall stand terminated amongst others on the date from which he ceases to hold an office of profit under Union or a State Government etc. and such person shall vacate such premises within seven days of such date and the landlord an!! tile tenant shall. give the inti• mation about the same as prescribed in clause 22 to the Collector in respect of such premises. There is··~ proviso which confers power on the Collector to extend the tena,pcy by a period not exceeding c four montlk Clause 28 c~nfers power on the Coliector to effecti· vely carry out the duty and obligation cast on him under Chapter UI. Clause 28 reads as under : ~ . ... -· "28.(1)-The Collector may take or cause to be taken D such steps anCI use or cause to be used. such force as may~ in his opinion, be reasonably necessary for the purpose_ofsecuring compliance with, or· for 'preventing or rectifying any contravention of this Order or for the effective exercise of such power."

The relevant provisions noticed hereinbefore will show that the landlord is under a statutory duty to intimate the existing or impending vacancy in the p;emises of which he is the landlord to the Collector (clause 22(1)}. The object underlyingthe provision is to make available residential accommodation to the Collector for allotting the same to a specified class of persons set out .in claus_e 23. This class c:omprises any person holdiQg an· office of profit under -the Union or State Government or any person holding a post under the Madhya Pradesh Electricity Board, or a displaced · person or an evicted person. . The Collector can allot the premises in respect of which he has received an intimation of vacancy under G clause 22, to anyone belonging to the specified class atid none else. The_ very enumeration of the class would show that these are pers0ns who cannot be left to the vagaries of the law of demand and supply of residential accommodation and they are required to be assisted in B this behalf for· efficient performance of public service or one.who.is roofless on account of being a displaced person or evicted person. lt may be that at any ~iven J?Oint . <;>f time, no one froIU class fo~

146 . SUPREM& COURT REPORTS . (1984) 1 s.c.i\.

whose benefit power is conferred on the Collector to allot vacant A premises may be on the waiting list and therefore, sub-clause (2) of clause 23 permits the landlord to let out such premises in respect of which he has intimated a vacancy to any person if. within fifteen days from the date of intimation of vacancy to the Collector, an Ji. order of allotment is not served upon the landlord. As a sequel to "" the right to obtain allotment on the ground of being holder of office . B of profit under Union· or State Government a corresponding obli- gation is cast upon such person to .vacate the premises as soon as he ceases to bold office or the post which enabled him to obtain the order ~f allotment. To give full eJfoct to these provisions, power is conferred on the Collector to take appropriate action to enforce c provisions of clauses 22 to 27. •

- The application made by 1st respondent Shri S. P. Pathak on Detember 7, 1976 to the H<:>use Allotment Officer complained of appellant not vacating the premises even thongli he has ceased to _ hold the office of profit. There was not the slightest complaint that • D when the appellant entered the premises in 1954, either he did it under an order of allotment made by the Collector or.surreptitiously or in league with the then landlord Shri Basantrai Sharma or in violation of the mandatory requirement of Clause· 22. Yet the House Allotment Officer proceeded to enquire as to whether clause E 22(1) (b) and· 22(i) were contravened when the appellant entered the premises in 1954• .. The first question that should engage our attention is whether the House Allotment Officer wasright in holding that there• was any

• contravention of clauses 22(-1) (b) and 22(2) of the Rent Control Order at the time when appellant entered the premises· In 1954. It_.- is necessary to focus attention on the contention of the appellant in this behalf. He contended in the written statement that he entered the · premises on an assurance from the landlord that the premises were being permitted to be occupied in accordance with . G sub-clause (2) of clause 23, which permits the landlord to let out the premises to whomsoever he considers proper if he has not received an allotment order from the Collector. within fifteen days from the date of the receipt of the intimation of vacancy under clause 22. No record was produced by. the. applicant before the House Allot· H ment Officer whether Shri Basantrai Sharma, who was then the , landlord and the owner of the house intimated to the Collector that a portion of the house which was then in his occupation was in· t~n4ed (o be le\ o\lt. if!iere is iio\ one wor<,! in tlle · 9rder of tile

! MANSARAM v. S.P. PATHAK! (Desai, J.) 147 "1 House Allotment Officer as to how and in what circumstances Shri · Basantrai Sharma, the then owner let out the premises to A the appellant. If a landlord assures an incoming tenant that he has complied with the provisions of clause 22, the tenant can enter the premises without b!ling charged for having contravened sub clause (2) of clause 22. The legal liability of giving intimation of vacancy is squarely on the landlord as provided by clause 22. If the land· B lord has given intimation of vacancy under clause 22 and· the statu• tory limit of 15 days for making an allotment order has expired, -the landlord on his own can proceed to let out the premises in respect of which he has sent the intimation of vacancy to anyone he chooses to accept as tenant. In such a situation, the only duty cast on the tenant is to seek an assurance from the . landlord that the c premises are being Permitted to be occupied in accordance with sub7clause (2) of clause 23. The appellant specifically contended that he entered the premises on such an assurance from the land· lord. In this :state of pleading, it was incumbent upon the House Allotment Officer to enquire whether deceased Basantrai Sharma D had given intimation of vacancy and whether any allotment order was issued within the period of 15 days from the date of the receipt of the intimation of it. If it was found that deceased Basantrai Sharma bad given an intimation of vacancy and that no allotment order was issued within 15 days from the receipt of the same and that he gave an assurance to the appellant that the premises are being E permitted to be occupied in accordance with sub-clause (2) of clause 23, obviously even if the .quondam tenant occupied the premises without an allotment order, he could not be charged with contra· vention of sub-clause (2) of clause 23. Assuming that landlord Basantrai Sharma gave a false assurance in 1954 to the appellant that the landlord had sent an intimation of vacancy and that no allot· F ment order is secured within fifteen days from the date of intimation of vacancy and accordingly false assurance was given, the tenant If he bona fide reiied upon the assurance emanating from the landlord and is not shown to be in league with the landlord, be would none the less be protected and cannot be accused of entering premises in contravention of clause 23(2). The Honse Allotment Officer has G recorded no finding on this important point and therefore, on this short ground bis order is liable to be set aside. ·

H We however find a greater infirmity in the order of the Honse Allotment Officer. In the absence of an allotment .order being pro!lu9e<fby tlw appellant, three possible snrmis~s are permissible;

148 SUPREME COURT REPORTS (1984) 1 s.c.a. ,·~ · They are : (I) Shri Basantrai Sharma ·never sent· the intimation of vacancy, (ii) that even though he did send the intimation of vacancy and yet he did not receive any allotment order within the prescribed period, and (iii) that he· surreptitiously let out the premises to the appellant after giving him a false assurance that he has complied with clause 22. . If the allotment order was in fact issued, a copy of it would be with the appellant as well it must have been sent to ~I

the Jandlord. There would be an office copy in the file of the case. No such allotment order is forthcoming. In the absence of an allotment order, before the appellant could be charged with contra• vention of clause 22(2), it was incumbent upon the House Allotment Officer to enquire whether Basantrai Sharma had sent any intimation c of vacancy to the Collector as required by clause 22(1) (b). If it was not sent, could his successor in .interest take advantage of his own wtong when Smt. _Usha Rani N. Sha~ma who claims to be the inheritor of the premises deliberately remained absent to help the · applicant Shri S. P. Pathak, who is alleged -to be a near relation of the husband of Smt. Usha Rani N. Sharma and who is keen to enter the premises by alleging, contravention of clause 22(1) (b) nearly 22 years before the commencement of the proceedings. Further the tenant contended that deceased landlord gave him an assurance as required by clause 23(2). In the light of this contention it was obligatory.upon the landlord or his . successor in interest to prove that no such assurance as claimed by the . appellant was ever given to him. Shri S.P. Pathak, the applicant claims to be a stranger. Original landlord Basantrai Shrama was dead by the time the present proceedings commenced. Her successor in interest Smt. Usha Rani N, Sharma remained absent. Appellant gave evidence that be was given the assurance that the premises were being let out to him in accordance with sub-clause(2) of clause 23. And sub-clause(2) of clause 22 protects a tenant against charge of unauthorised occupation if he enters premises on the assurance as aforesaid as provided in clause 22(2). The order made by the House Allotment Officer is conspicu• ously silent on this most relevant question why the allegation of assurance put forward by the appellant was not examined by him and why it was rejected sub silention. The non-application of mind by the quasi judicial authority lo the most relevant point which goes to ·the root of the matter completely vitiates the order of the House Allotment Officer, because once the allegati<iti of assurance canvassed · H for on behalf of the appellant 'is accepted, he is' not liable to be evicted on the ground that he entered the premises in, contraventio11 ·of clause iz(2),

MANSARAM v. s.i>._I'ArHAK(besai, i.) i49

There is a still further infirmity in the older of t)le House Allotment Officer. Admittedly, the appellant enterad the premises in 1954. He was then serving in the telephone department which · would permit an inference to be drawn that he was holding an office of profit in the Union oflndia. But in order· to attract clause 25 of the Rent Control Order which obligates such holder of the office of profit tova9ate the premises on his ceasing to hold the office of profit, it must be shown that .he entered the premises under an order of allotment made by the Collector either under clause 23 I or clause 24A. Existence of an order of allotment under clause 23 or clause •• 24A in favour of a person· holding an office of profit nuder the • Union of India or the State Government is a· sine qua non before the obligation under clause 25 can be fastened upon him to vacate c the premises on ceasing to hold the office of profit which enabled him to get an order of allotment in his favour. In the absence of an allotment order, it is not open to the House Allotment Officer to draw an inference that the premise; wen; allotted ·to the appellant because he was holding an office of profit. If there is no order or' D allotment issued to the appellant on the ground that he is holding an office of profit, the House Allotment Officr had no jurisdiction to cali upon him to vacate the premises on the short ground that he has ceased to hold the office of profit. The House Allotment Officer has in terms held that as the appellant has retired in 1967, and therefore lie is not entitled to continue to. occupy the prem.ises. This line of E - reasoning proceeds on the assumption that there was initially an ' order of allotment in favour of the appellant on the grou\ld that he J was holding an office·of profit, the assumption being not borne out by the facts. In the absence of an allotment order, the House Allot" meat Officer has no jurisdiction to call upon the appellant to vacate · tl;te premises on the short ground that he . has ceased to hold the office of profit.

What is.stated hereinbefore is sufficient to ·quash a~d. set aside the order of the House Allbtment Officer. However, there is one more aspect of the matter which we cannot overlook. The appeliant enterd the premises in 1954. There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the pre.mises in contravention of clause 22(2), . Till Basantrai Sharma died, no one raised the controversy about t!ie entry of the appellant in the premises as being ,unauthorised or in contravention of clause '

22. Basantrai I Sharma in his life time tried . to

Ho stiPR.EMii cotrl!.f REPORTS (19841 l s.c.ft

obtain possession of the premises from the appellant alleging grounds availabie to him under the Rent Control Order other than . -unauthorised entry. This would permit an inference that Basantrai · Sharma accepted the appellant as his tenant and bis tenancy did . 1 not suffer from any infirmity. After Basantrai Sharma died, her successor in interest one Smt. Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr. S.P. Pathak, a total stranger has c0 me forward to complain . about the unauthorised entry of the appellant in the premises, The unauthorised entry according to the appellant was in the year J 954. Appellant retired in 1967. Basantrai Sharma was alive in 1967. c If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the samething. Rent was accepted without question from the appellant by Basantrai Sharma till bis death and thereafter. ' Could he be at this distance of time, thrown out on the ground that bis initial entry D . was unauthorised. To slightly differently formulate ·the proposition, could ·the initial unauthorised entry, if there be any, permit a House Allotment Officer, 22 years after the.entry, to evict the appel- lant on the short ground that he entered the premises in contraven- tion of clause 22(2) ? Undoubtedly, power is conferred on the E Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Colloeter therefore, comes across information that there is a . cmitravention, he is clothed with adequate power to set right the contravention by ejecting anyone ·who comes into the _premises in contravention of the provisions. But when the power is conferred F to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a ·landlord to some extent in pari delicto could turn the tab\es against,. the person w])..o was in possession for 22 years as a tenant. In such a situation, - even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unai;ihorised .entry and that failure to vacate premises till 9 years after retirement was not proper' yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which· be has done. H In such a situation, it would be open to· him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal

MANSARAM v. S.P. MtHAK (besai, J.) IS! 1 .. ' and Ant. v. State of U.P. & Ors.( 1) wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by sec. 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to 'the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupa- tion, if the District Magistrate was satisfied that there has been undue delay or otherwise it .is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to c take necessary action for the °purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is ·conferred to effectuate a purpose, it has to be exercised in a reason· able manner and the reasonable exercises of power inheres its exercise within a reasonable time. This is too well established to D need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha & Ors.( 1) In that case \. Commissioner exercised suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The • Commissioner exercised revisional jurisdiction one year after the Collector made the -order which was. sought to be revised. The High Court set aside the order of the·Commissioncr. In the· appe'al by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held io be too late. This aspect must be present to the mind of House Allotment Officer bef~re just rushiQ.g in on an unproved technical contraventiol) brought to his notice contrived by the successor in interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement G on the short ground that his entry in the year 1954 ·was in contravention of clause 22(2).

Having exarnined all the aspects of the ·matter, we are. satisfied that the order of the House Allotment ·officer suffers from numerous ·B

(I) [19751 IS.CR. 575. (2) [1970) I S.C.R. 33S.

1S2 SUPR~MB cOURT RBPORTs (1984) i s.c. \. \. infirmities· and is unsustainable and must be quashed and set aside as also the order of the High Court dismissing the Special Civil Applica- tion No. 1957of1977 preferred by the present appellant. Accordingly this appeal succeeds and is allowed and the application made by the · . first respondent to'the House Allotment Officer is:dismissed with no order as to costs throughout: ' B H.L.C. Appeal allowed. .,