Holding

The rent control authority’s allotment of the premises to the appellant was without jurisdiction and violated Section 17(2) of the Act, so the appeal is dismissed.

Summary

The appellant, Babu Singh Chauhan, was allotted a residential unit by the Rent Control and Eviction Officer after the previous tenant gave notice to vacate. The landlady, Rajkumari Jain, was not consulted for a nomination despite her ownership and partial occupation of the building, and her application for release under Section 16(1)(b) was rejected. The District Judge cancelled the allotment, but the District Magistrate and Rent Control Officer reinstated it, leading the landlady to file a writ petition. The High Court quashed the allotment and remanded the matter for fresh consideration. The Supreme Court held that the allotment was ultra vires because Section 17(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 requires the landlord’s nomination before any allotment, irrespective of the landlord’s physical residence, and dismissed the appeal.

Issues considered

Whether Section 17(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 applies when the landlord does not reside in the premises.
Whether the rent control authority must obtain a nomination from the landlord before allotting a vacant part of a building occupied by the landlord.
Whether the order of allotment made without complying with Section 17(2) is within the jurisdiction of the authority.

Legislation cited

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 16(1)(b), s. 17(2)

Subjects

rent controlallotmentlandlord possessionnomination rightSection 17(2)U.P. Urban Buildings Acttenancyjurisdictioneviction

Judgment

i14
A BABU SINGH CHAUHAN
v.

RAJKUMARI JAIN & ORS.

February 1, 1982
8
[S. MURTAZA FAZAL ALI AND R.B. MISRA, JJ.]
~-

U.P. Urban Buildings (Regu/atiOn of Letting, Rent and Eviction) ALf
1972-Sectlons 16(1) (b) and 17(2)-Scope of

c Section 16(1) (b) of the U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 empowers the District Mag_istrate to release the whole or
any part of a building or any land appurtenant thereto, in favour of the landlord.
Section 17(2) provides that where a part of a building is in the occupation of the
landlord for residential purposes or is released in his favour under section
16(1) (b) for residential purpose!' the allotment of the remaining part thereof
under clause {a) of sub-section (l) shall be made in favour of a person nominated
D by the landlord.

On intimation from the tenant that he was vacating the premises, the rent
control authority allotted them to the appellant without informing the landlady
about the allotment. On appeal the District Judge cancelled the allotment made
in favour of the· appellant
E
The landlady then made an application for delivery of possession of the
premises. This application was rejected on the ground that she had not applied
for release of the accommodation. Her application under section 16(1) (b) for
release of the premises was rejected and the accommodation was re·a\Jotted to
the appellant. The District Magistrate affirmed the order of the rent control
authority.
F
The landlady's writ petition impugning the orders of the courts below was
al.lowed by the High Court. the case was remitted to the courts below for
reconsideration afresh of the question of allotment.

In appeal to this Court it was contended on behalf of the appellant that
since the landlady was not in actual physical possession of the premises neither
G section 16(1) (b) nor section 17(2) had any application to the facts of this case.

H
.. Dismissing the appeal,

HELD : The order of the ·prescribed authority allotting the premises to
the appellant was without jurisdiction and against the plain terms of section
17(2) of the Act. The District Judge had rightly allowed the landlady's appeal
and cancelled the allotment to the appellant.
D.S. CUAUHAN v. RAiKUMARI ii5

The object of the- Act is that where a tenant inducted by the landlord A
voluntarily vacates the premises, pardy occupied by the landlord, allotment in
the vacancy should be made only to a person nominated by him, the dominant
purpose of such provision being to remove any inconvenience to the landlord
by imposing or thrusting on tbe premises an unpleasant neighbour or a tenant
who invades the landlord's right of priVacy. While empowering the prescribed
authority to allot the accommodation, the Act safeguards the right of the landlord
to have a tenant of his choice. [117 B·C, DJ B

In the inst.ant case if a tenant was thrust on the respondent without allowing
her an opportunity to nominate a tenant of her choice it would violate the very
', spirit and tenor of section 17(2). [120 F]

Possession by a landlord of his property may assume various forms : a C
landlord living outside the town might retain possession over his property or a
part of it either by leaving it in charge of a servant or by putting his household
effects locked up in the premises. Such occupation would be full and complete
possession in the eye of law. [119 F]

In the instant case from the fact that the landlady was residing in another
tqwn and so was not actually residing in the premises it could not be '!aid that she D
was not in possession of the premises or that she had severed her connection
with her own property. [119 G]

The High Court was justified in quashing the orders of the rent control
authority because no attempt had been made to approach the landlady for
making a nomin1tion in respect of the premises vacated by the original tenant. E
All that the landlady did was to ask for the release of the premises. Even if this
was refused it was incumbent on the rent control authority to have fulfilled the
requirements of section 17(2) before making an allotment in favour of the
appellant or a'oyone else. Simply because the landl.ady was living outside the
town it could not be said that the provisions of this sub~section wriuld not apply
and that the authorities concerned could make an allotment in favour of any
person without giving an opportunity to her to exercise her privilege to nominate F
a tenant. [120 A.CJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8i2 of 1980

Appeal by special leave from the judgment and order dated the
23rd November, 1979 of the Allahabad High Court in Civil Misc.
G
Writ No. 479 of 1978.

11..K. Garg, V.J. Prands and S.K. Jain fot the Appellant.
H
Shanti Bhushan, R.K. Jain, P.K. Jain and Pankaj Kalra for
Respondent No. I.
r
li6 SUPREME COURT REPORTS [ i 98.2) J s.C.R.
A
The Judgment of the Court was delivered by

FAZAL Au, J. This appeal by special leave is directed against-
a judgment dated November 23, 1979 of the Allahabad High Court ·
allowing a writ petition quashing the order of the Rent Control and
Eviction Officer and remanding the case to him for considering. the
B question afresh in accordance with law and in the light of the
observations made by the High Court.

The appeal involves a short and simple point but the case
appears to have had rather a long and chequered career. Put briefly,
the facts of the case fall within a narrow compass so far as the
c points for decision are concerned. The first re~pondent, Smt.
Rajkumari Jain, inducted Shri Thapalayal as a tenant in the premises
in dispute which are situated in the town of Bijnor. The tenant
intimated his intention to the Rent Control and Eviction Officer
to vacate the premises on 25.6.1974 On receipt of the
aforesaid application of the tenant a Rent Control Inspector was
D
directed to visit the spot and after visiting the same he reported that
the premises in question were likely to fall vacant on 9.6.74. The
prescribed authority by its Order dated 1.6. 74 allotted the premises
to the appellant. In fact, the appellant had applied to the authority
on 20.5.74 for allotment of the accommodation to him. It appears
E that these proceedings were taken behind the back of the respondent··
landlady who was not taken into confidence either by the appellant
or by the Rent Control authorities. It was only after the prescribed
authority had allotted the premises to the appellant and the respon-
dent-landlady came to know of this fact that she moved the
prescribed authority for cancellation of the allotment but her prayer
F was rejected.

Thereafter, the landlady filed an appeal before the Additional
District Judge, Bijnor which was allowed and the allotment in favoµr
of the appellant was cancelled oe the ground that the provisions of
s. 17(2) of the U.P. Urban Buildings (Regulation of Letting, Rent
G and Eviction) Act, 1972 (hereinafter referred to as · the 'Act') were
not complied with. Before narrating further sequence of.facts, it
may be necessary to examine the relevant provisions of the Act.
Section 17(2) of the Act may be extracted thus :
H
"Where a part of a building is in the occupation of the
landlord for residential purposes or is released in his favour·
11.S. CHAUHAN v. RAJKUMARI (Paza/ Ali, J.) 117

under clause (b) of sub-section (1) of Section 16 for resi- A
dential purposes, the allotment of the remaining part thereof
under clause (a) of the said sub:section (I) shall be made in
favour of a person nominated by the landlord."

A perusal of this statutory provision would clearly disclose that
the object of the Act was that where a · tenant inducted B
by the landlord voluntarily vacates the premises, which are a part of
the building .occupied by the landlord, an allotment in the vacancy
should be made only to a person nominated by the landlord. The
dominant purpose to be subserved by the Act is manifestly the
question of removing any inconvenience to the landlord by imposing
or thrusting on the premises an unpleasant neighbour or a tenant c
who invades the right of privacy of the landlord. It is obvious that
if the tenant has vacated the premises by himself and not at the
instance of the landlord, there is no question of the landlord
occupying the said premises because he has got a separate remedy
for evicting the tenant on the ground of personal necessity. The
statute, hqwever, while empowering the prescribed authority to allot
D
the accommodation, safeguards at least the right of the landlord to
have a tenant of his choice.

In the instant case, the admitted position seems to be that
when the prescribed authority allotted the premises to the appellant, E
the landlady was not taken· into confidence nor was she asked to
induct either ihe appellant or somebody else as the tenant of the
premises which were likely to fall vacant or which may have fallen
vacant. This was undoubtedly an essential requirement of the
provisions of s. 17(2) of the Act as extracted above. In these
circumstances, there could be no doubt that the Order of the prescrib- F
ed authority allotting the premises to the appellant was completely ·
without jurisdiction and against the plain terms of s, 17(2) of the
Act. It was in view of this serious legal infirmity that the District
Judge allowed t.he appeal filed by the landladY. on 27.1.1976 and
cancelled the allotment of the accommodation to the appellant.
On 2.2.76 the landlady herself filed an application before the District G
Magistrate, Bijnor for delivery of possession of the said premises
to her but the District Magistrate rejected the application by his
Order dated 8.3.76 on the ground that as the landlady had not
applied for release of the accommodation, she could not be allotted
the premises straightaway. On 5.4.76 the District Supply Officer, ff
,Pijnor directed the counsel for tlje landlady to noll'.linat~ a persoq
-
118 SUPRBMB COURT REPORTS [1982] 3 s.c.R.

A for allotment of the premises. As against this, the la11dlady a1,plied
for release of the accommodijtion to her in terms of the provisions
of s. 16(1) (b) of the Act which ru~s thus :

"16. Allotment and release of vacant building.

B (I) Subject to the provisions of this Act, the District
Magistrate may by order :

(a) xx xx

(h) release the whole or any part of such building,
c or any land appurtenant thereto, in favour of
the landlord (to be called a release order)."
•
The prayer of the landlady under s. 16(1) (b) also appears to
have been ignored by the Rent Control authorities and by an Order
D dated 15.4.76, the District Supply Officer reallotted the accommoda-
tion to the appellant. This led the landlady to file another appeal
before the Additional District Judge, Bijnor who by his Order dated
21.9.77 rejected the plea of the landlady, dismissed the appeal and
confirmed the order of allotment. The respondent-landlady there-
upon filed a writ petition in the High Court challenged the orders
E of the District Supply Officer as also of the District Judge who had
affirmed that order and confirmed the order of allotment in favour
of the appellant. The High Court by the impugned order allowed
the writ petition and sent the matter back to the Rent Control and
Eviction Officer to consider the question of allotment afresh in view
of the observations made by the High Court._
F
The appellant then obtained special leave of this Court against
the order of the High Court and hence this appeal before us.

In support of the appeal, Mr. Shanti Bhushan, learned counsel
G· for the appellant submitted that the High Court had no jurisdiction
to interfere with the concurrent finding of fact given by the District
Supply Officer and the District Judge confirming the allotment in
favour of the appellant and that too in a writ jurisdiction. He also
submitted that the landlady was not at all in actual physical posses-.
H sion of the premises and had been living outside Bijnor and, there-
fore, neither the provisions of s. 16(1) (b) nor those of s. l 7(2) of
ihe Act would apply to the f11ct$ of tbe present 1>ase. On the otlm
11.s. CHAUHAN v. RAIKUMARI (Fazal Ali, J.) 119
hand, tbe counsel for the respondent submitted that initially the only· A
question before the Rent Control Authority was whether the allot-
ment should be made to the appellant even though he was not
nominated by the landlady under s. 17(2) of the Act. It is common
ground that the appellant was not a nominee of the landlady and,
as discussed above, the District Judge in his iirst order had quashed
the allotment on the ground that the provisions of s. 17(2) had not B
been complied with.

It was also argued on behalf of the respondent-landlady that
the circumstances having changed; she now wanted to stay in
Bijnor permanently and as she wanted additional accommodation
she had applied to the District Magistrate under s. 16(1) (b) for
releasing the building in her favour. This application was not at
c
all considered on merits by the District Magistrate or by any court
r for that matter. If the respondent could succeed in convincing the
District Magistrate that a case for release of the entire building was
made out, then the question of allotting the premises to the appel-
lant would not have arisen at ali. D
We have gone through the judgment of the High Court in the
light of the arguments of the parties and we are inclined to agree
with the view taken by the High Court that the mere fact that the
lady did not actually reside in the premises which were locked and
contained her household effects, it cannot be said that she was not E
in possession of the preniises so. as to make s. !·7(2) inapplicable.
Possession by a landlord of his property may assume various forms.
A landlord may be serving outside while retaining his possession
over a property or a part of the property by either leaving it in-
charge of a servant or by putting his household effects or things
---- locked up in the premises. Such an occupation also wonld be full F
and complete possession in the eye of I aw.

It was further argued by Mr. Shanti Bhushan that the landlady
had absolutely no reason to stay in Bijnor because she was staying
with her son in some other town. That by itself is hardly a good
ground for the landlady who was a widow to sever her connections G
with her own property. Moreover, we do not want to make any
observations on the meri!s of this matter as the High Court has
rightly remanded the case for a fresh decision on all the points
involved.
H
So far as the second point is concerned, viz., the question of
11llotment of th~ prelllises to th~ appe.llant! the Hi~h Court was fully
I

120 SUPREME COURT REPORTS [1982] 3 S.C.P.
A justified in quashing the order of the District Supply Officer as
affirmed by the District Judge because despite several opportunities
no attempt had been made to approach the landlady to nominate a
tenant. There is no evidence to show that either the prescribed
authority or the Rent Control and Eviction Officer ever approached
the landlady for making a nomination in respect of the premises
B vacated by the original tenant and she refused to do .so. All that
the landlany did was to ask for the release of the premises but even
if this was refused -it was incumbent on the Rent Control authorities
to have fulfilled the essential conditions of s. 17(2) of the Act before
making any allotment in favour of the appellant or for that matter
any other person. It was suggested that as the landlady was not living
c in the premises which were Jocked up, section 17(2) did not apply.
We haye already rejected this argument because even occupation of
a part of a building by the owner which she may visit 'off and on is'
possession in the legal sense of the term and, therefore, it cannot be
said that the provision of s. 17(2) would not apply and that the Rent
Control authorities could make an allotment in favour of any person
D without giving an opportunity to the landlady or the landlord to
exercise her/his privilege of nominating a tenant.

We have already pointed out that the object of the Act seems
to be to arm the owner with the power of nomination so as to
.protect him/her from unpleasant tenants or indecent neighbours
E who may make the life of the owner a hell. Moreover, the conduct
displayed by the appellant in this case clearly shows that if be was
thrust on the resp_ondent without her being allowed an opportunity
to nominate a tenant, it will violate the very spirit and tenor of
s, 17(2) of the Act.

F As we are of the opinion that the order of the High Court has
to be upheld we refrain from making any further observations on
the merits or any aspect of the matter which have to be gone into
_afresh as directed by the High Court.

We find no merit in this appeal which is dismissed with costs
G quantified at Rs. 1,000/- (Rupees one thousand only.).

P.B.R. Appeal dismissed,