TMI Blog1983 (9) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 1 Shri S.P. Pathak made an application to House Allotment Officer, Nagpur registered as Miscellaneous Case No. 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 Sub-clause. (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 Chapter III of the Rent Control Order applies without obtaining an order under Sub-clause (1) 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-clause (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 depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... night from the communication 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. 4. Appellant filed a Special Civil Application No. 1957 of 1977 before the Nagpur Bench of the Bombay High Court. A learned Single Judge dismissed the petition in limine. Hence this appeal by special leave. 5. At the outset, we must confess that the learned Single Judge was completely in error injecting the petition under Article 227 of the Constitution in limine because various points raised by the appellant are such that atleast a reasoned decision by the High Court was a must or atleast a speaking order briefly showing why these contentions did not find favour with the High Court. At one stage, we were toying with the idea to remit the matter to the High Court but that would merely be further delaying the already over delayed proceedings. 6. Order 22 of the Rent Control Order reads as Under : 22(1) Every landlord of a house situated in an area to which this Chapter extends, shall- (a) within seven days from the date of the extension of this chapter, if the house is vacant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall give the intimation about the same as prescribed in Clause 22 to the Collector in respect of such premises. There is a proviso which confers power on the Collector to extend the tenancy by a period not exceeding four months. Clause 28 confers power on the Collector to effectively carry out the duty and obligation cast on him under Chapter III. Clause 28 reads as under : 28. (1)-The Collector may take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be reasonably necessary for the purpose of securing compliance with, or for preventing or rectifying any contravention of this Order or for the effective exercise of such power. 7. The relevant provisions noticed hereinbefore will show that the landlord is under a statutory duty to intimate the existing or impending vacancy in the premises of which he is the landlord to the Collector (Clause 22(1)). The object underlying the provision is to make available residential accommodation to the Collector for allotting the same to a specified class of persons set out in Clause 23. This class comprises any person holding an office of profit under the Union or State Government or any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sub-clause (2) of Clause 23, which permits the landlord to let but 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 Allotment 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 intended to be let out. There is not one word in the order of the House Allotment Officer as to how and in what circumstances Shri Basantrai Sharma, the then owner let out the premises to 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 being charged for hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the landlord. 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 contravention of Clause 22(2), it was incumbent upon the House Allotment Officer to enquire whether Basantrai Sharma had sent any intimation 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 wrong when Smt. Usha Rani N. Sharma 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacate 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 premises were allotted to the appellant because he was holding an office of profit. If there is no order of allotment issued to the appellant on the ground that he is holding an office of profit, the House Allotment Officer had no jurisdiction to call 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 he is not entitled to continue to occupy the premises. This line of reasoning proceeds on the assumption that there was initially an order of allotment in favour of the appellant on the ground that he was holding an office of profit, the assumption being not borne out by the facts. In the absence of an allotment order, the House Allotment Officer has no jurisdiction to call upon the appellant to vacate the premises on the short ground that he has ceased to hold the office of profit. 12. What is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred 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 tables against the person who 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 unauthorised 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. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal and Anr. v. State of U.P. and Ors. [1975]1SCR575 wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by Section 7(2) of the U.P. (Temporary) C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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