Madhya Pradesh High Court
High Court Of Madhya Pradesh vs Rent Controlling Authority And Anr. on 16 September, 2005
Equivalent citations: 2006(1)MPHT141
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Invoking the extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 17-3-2003, Annexure P-11 passed by the authorised officer, Rent Controlling Authority and consequential order dated 7-2-2004, Annexure P-16, whereby the said authority has directed delivery of possession to the respondent No. 2.
2. The facts which are requisite to be stated for adjudication of the writ petition are that the State Government had granted lease in respect of plot numbers 7/2 and 15/2 of plot numbers 37/38 situated in Civil Lines, Jabalpur on 3-9-1971 to the respondent No. 2. The period of the lease expired on 31-3-1999. No application for renewal of lease had been filed and the State Government had not renewed the lease. The respondent No. 2 had filed a return before the Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as 'the Ceiling Act'). The Competent Authority published a draft statement and eventually on 6-1-1984 declared 2,28,706 sq. ft. as surplus land. An objection was filed by the respondent No. 2 on 5-4-1984 and the Competent Authority on 25-8-1984 declared 2,04,471 sq. ft. of land as surplus. Being aggrieved the respondent preferred an appeal and the Appellate Authority remanded the matter for fresh enquiry. A final declaration was made under the Ceiling Act on 27-2-1993. It is contended that if the records of the ceiling proceeding are seen it would be manifest that the declaration of land as surplus had attained finality, as a consequence of which it vested in the State Government.
3. According to the writ petitioner the M.P. Administrative Tribunal (in short 'the Tribunal') applied for allotment of land for construction of staff quarters and the State Government directed transfer of the aforesaid land in favour of the petitioner for construction of staff quarters and quarters and durraz were constructed and substantial repairs were carried out on the existing bungalow. At this stage the respondent No. 2 filed a writ petition forming the subject- matter of W.P. No. 3836/1995. The State Government did not file return and the High Court on 7-12-2000, Annexure P-7, directed restoration of the land in favour of the respondent No. 2. An application for review was filed. It was contended that in W.P. No. 2897/2003 this Court had passed an order on 17-7-2003 transferring the assets and liabilities of the Tribunal to the High Court. In view of the aforesaid order the building and belongings to the Tribunal were put at the disposal of the High Court. On 17-7-2003, Annexure P-9, right, title and interest and movable and immovable properties belonging to the Tribunal have been transferred to the High Court. It was also set forth that the order passed in the writ petition warranted review as the office of the Advocate General had not properly conducted itself.
4. During the pendency of the review application the respondent No. 2 filed an application under Section 39 of the M.P. Accommodation Control Act, 1961 (for brevity 'the 1961 Act') for release of the entire land along with the bungalow for his own use. The Rent Controlling Authority passed an order on 17-3-2003 releasing the entire land along with the bungalow in favour of the second respondent. No notice was given to the Tribunal or to the High Court. It is put forth that the order passed by the Rent controlling Authority is vitiated as neither the Tribunal nor the High Court was noticed. In the meantime, a direction was issued by the respondent No. 2 for directing delivery of possession. The Rent Controlling Authority had come to hold that the bungalow in question was not allotted to the Tribunal nor did it being to it and, therefore, neither the Tribunal nor the Registrar was a necessary party to the proceeding. It is averred in the petition that when the application for review is still pending the Rent Controlling Authority ought not to have passed the order being enthusiastic and would have been well advised to wait for the order passed in the application for review. It is highlighted that after abolition of the Tribunal the property has been brought under the control of the High Court in entirety and the Registrar General of the High Court should have been heard in the matter. It is contended that the allotment was made in favour of the Tribunal as a juristic entity and not in favour of its Chairman as a person and hence, the release of the premises in favour of the respondent No. 2 is vulnerable.
5. A counter affidavit has been filed by the respondent No. 2 contending, inter alia, that the allotment was made in favour of the Chairman as is perceptible from initial order dated 31-7-1992 which shows that P.C. Pathak, Chairman of the Tribunal was allotted the quarter, namely, Black-Don, Civil Lines, Pachpedhi, Jabalpur. It is contended that Section 39 (2) of the 1961 Act envisages an allotment to a person and not to an office. There has been successive allotment as is evincible from Annexure P-2 to Annexure P-8 in favour of Justice A.G. Qureshi, Justice R.P. Awasthi and Mr. N.S. Sethi in their individual capacity. A reference has been made to Section 40(2) of the 1961 Act which provides that tenancy in favour of a person so allotted by virtue of an office shall terminate on the day he ceases to hold such office on account of transfer, retirement or otherwise. Mr. Sethi retired on 8-11-2002 and the respondent No. 2 filed an application praying for release of the bungalow. A prayer was made by Mr. Sethi for extension of time to vacate the bungalow up to the period ending on 28-2-2003 as he had undergone a bypass surgery in the Escort Hospital on 7-11-2002 and was not in a position to vacate the premises for 3-4 months. Accepting the prayer on 11-12-2002, Annexure R-2/11 Mr. Sethi was granted four months time to vacate the premises. None appeared thereafter till termination of the proceeding by the Rent Controlling Authority. Though the order of release was passed on 17-3-2003 the Tribunal on 14-8-2003 much after the termination of the proceedings made an application to be impleaded itself as a party under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure. By order dated 21-9-1995 the State government granted sanction under Para 36 of RBC Part IV permitting the transfer of plot Nos. 15/2, 16/2 area 2.0117 acre of Block No. 37-38 to the General Administration Department, Bhopal, for construction of quarters for employees of the Tribunal. After abolition of the Tribunal certain lands, buildings and library etc. were transferred to the High Court. Emphasis has been laid on the fact that the property had not vested in the State Government and how the review application filed by the petitioner has been dismissed.
6. A reply to the return of the respondent No. 2 has been filed stating, inter alia, that the bungalow along with the land in question was allotted to the Tribunal by the respondent's authorised officer for the residence of Chairman of Tribunal in the year 1991. A requisition was made by the Tribunal in the year 1991 for allotment of bungalow for the Chairman, Justice P.C. Pathak, who was the Chairman at that time. The bungalow was allotted in favour of the Chairman. After his retirement it was allotted to the succeeding Chairman. Thereafter it was allotted to the successive Chairman but on 30-9-1999 an application was filed by the Tribunal to take the bungalow for the Chairman and the Rent Controlling Authority was informed of the same. Thus, the stand in the reply is that the allotment was made in favour of the Tribunal and not in favour of the Chairman as person. It is urged that when all the assets have been transferred to the Tribunal and thereafter to the High Court, it can not be said that it was allotted in favour of the Chairman in person.
7. I have heard Mr. V.S. Shroti, learned Senior Counsel along with Mr. A.P. Shroti for the petitioner and Mr. Ravish Agrawal and Mr. Rohit Arya, learned Senior Counsels along with Mr. Pranay Verma for the respondents.
8. It is submitted by Mr. Shroti that a great fraud was played by the office of the Advocate General and other administrative departments to get the lis of the Tribunal frustrated and thereby the right of the High Court and, therefore, this Court should interfere under Article 226 of the Constitution of India. It is contended by him that the High Court has a special entity after abolition of the Tribunal and, therefore, has earned the status of a tenant and without it being heard the Rent Controlling Authority could not have passed an order of release and thereafter for handing over possession. The learned Counsel has canvassed that following of principles of natural justice and conception of hearing to the either side are the basic requirements of law being sacrosanct in a body polity which is governed by rule of law, and the same having not been done the orders are sensitively susceptible.
9. Mr. Ravish Agrawal, learned Senior Counsel for the respondents contended that the order passed in the ceiling proceedings has attained the finality after the special leave petition has been rejected by the Apex Court. It is also urged by him that the application for review filed by the High Court has faced with dismissal and there is no information with regard to the same having been assailed in any higher forum. It is canvassed by him that the documents would go a long way to show that the premises was allotted in favour of the Chairman in his personal capacity and, therefore, no statutory authority has any right to assail the order of the Rent Controlling Authority. The learned Senior Counsel further submitted that under the M.P. Accommodation Control Act an allotment is made in favour of a person, if the scanning of the provisions are done in proper perspective. To butress the aforesaid submission he has placed reliance on a Division Bench decision rendered in the case of Kishanlal s/o Manikchand v. The Rent Controlling Authority, Bhind, 1979 MPRCJ-N (120) at Page 327. The learned Senior Counsel has also submitted that it is an act of inequality on the part of the petitioner not to drag an octogenarian to a Court of law to take possession, knowing well it has no right to occupy the same.
10. Before I address myself to the rivalised submissions raised at the Bar, it is apposite to refer to certain facts, which are in a way necessitous and imperative to appreciate the pronouncements in proper perspective. The respondent No. 2 had knocked at the doors of this Court in W.P. No. 3836/1996, whereby he had prayed for quashment of the order dated 11-7-1995 passed by the Additional Commissioner, Jabalpur, who had affirmed the order dated 7-5-1988 passed by the Competent Authority under the Urban Land (Ceiling & Regulation) Act, 1976. This Court on 7-12- 2000 had passed the following order :--
Mr. Agarwal has drawn the attention of this Court to the; order sheet of the Competent Authority in the ceiling case. He has specifically referred to the order dated 24-3-88. On a perusal of the order-sheet it becomes plain as noon day that the notices where not served on the petitioner. Thus, it is crystal clear the order passed by the Appellate Authority on earlier occasion has not been properly appreciated by the Competent Authority and he has determined the lis on merits on his own without affording an opportunity to the petitioner. As there has been violation of the command of the Appellate Authority the order passed vide Document 4 by the Competent Authority is vulnerable and deserves to be quashed and accordingly, I so direct. As far as the order passed by the Appellate Authority is concerned, the said Authority has dialated with regard to the non service of notice the said order suffers from incurable infirmity and accordingly it is lanceted. Needless to emphasis, the petitioner shall reap all the consequential benefits. It is submitted by Mr. Agarwal the possession is still with the petitioner. However, it is controverted by Mr. P.D. Gupta, learned Dy. A.G. stating that the possession has been taken over. If the possession has been taken it shall be restored to the petitioner and if the petitioner is still in possession shall continue to remain in possession.
11. The said order was assailed in a Letters Patent Appeal before the Division Bench which was dismissed on the ground of delay. S.L.P. that was preferred before the Apex Court was also dismissed on the ground of delay. After the SLP was dismissed an application for review was filed by the Registrar of the Tribunal. Various allegations were made. After the abolition of the Tribunal building and staff of the Tribunal were brought under the control of the High Court and the Registrar of the High Court got himself impleaded in the application for review. The review application was heard at length and relying on the decisions rendered in the cases Chander Chinar Bada Akhada Udasin Society and Ors. v. State of J&K and Ors., ; Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors., ; Kunhayammed and Ors. v. State of Kerala and Anr., ; Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Ors., ; Parisian Devi and Ors. v. Sumitri Devi and Ors., and Ramprasad and Ors. v. State of M.P. and Ors., 2002(5) MPLJ 417, this Court came to hold in Paragraphs 25 and 26 as under :--
25. It has been submitted by the Registrar of the High Court that if the additional returns have been filed there would have been change in the factual matrix, I do not so perceive because what is being stated therein that the land was allotted in favour of the Tribunal. This Court has quashed the order and directed reaping of consequential benefit. Submission of Mr. Shroti that writ petition stood abated by virtue of effect of Repeal Act, in my considered view the concept of abatement would not apply as the proceeding was taken up without notice to the petitioner. He can maintain the writ petition on merits. This Court in the case of Ramprasad (supra) in Paragraph 12 took note of the fact that notice has not been served on the holder of the vacant land and hence, there was no service as prescribed in Rule 5. Thereafter, the Court has opined that no draft statement was served on Ramprasad. The Court in Paragraph 14 adverted to Section 4 of the Repeal Act, 1999 and eventually, in Paragraphs 15 and 16 came to hold as under :--
15. Learned Counsel for the State wants to take benefit of provision to Section 4 to contend that the writ abates as possession has been taken over. But the submission is liable to be rejected. The abatement contemplated under Section 4 is for the benefit of the holder owing to repeal of Act. Writ petition/appeal challenging correctness and validity of the orders declaring the land as surpluses even when the possession has been taken by the State or any of the person on its behalf, can not abate. Question is when final order and draft statement has been found to be illegal whether matter can be remanded back to the Competent Authority for determination of excess land. Once the order is set aside proceedings shall be deemed to be pending and such proceedings abate by application of Section 4 of the Repeal Act. What is saved only proceeding for determination of compensation under Sections 11 to 14 not the pending proceedings. If order under which possession was taken has been set aside matter can not be remitted back for determination afresh of the surplus land as continuation of such proceedings is barred as holder becomes entitled to restoration of possession also. If the possession is taken in unlawful manner, the State/Competent Authority can not have the right to continue with the proceedings to declare the land surplus with respect to which possession has been taken under an invalid order. Thus, no useful purpose would be served by remitting the matter back to the Competent Authority, particularly when the Act has been repealed.
16. The Apex Court in Pt. Madanswaroop Shrotiya Public Charitable Trust v. State of U.P., , has held that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of the Act, before any Court, Tribunal or other authority shall abate. The facts of this case are distinguishable. However, in my opinion, as discussed above, the matter can not be remitted back as per Section 4 of the Repeal Act.
26. I am in respectful agreement with the aforesaid view. In the case at hand this Court had quashed the order passed by the Appellate Authority. There was no error. The question of clarification does not arise. The orders speaks for itself. The directions in the order are unequivocal, unambiguous and clear.
12. I have referred to the aforesaid order in extenso as a ground was urged in the writ petition that an application for review was pending. The same having been dismissed the said ground is no more available. The real crux of the matter is whether the order passed by the Rent Controlling Authority vide Annexure P-11 suffers from such infirmity to the lanceted by this Court. By the impugned order the Rent Controlling Authority has taken note of the undertaking given by Mr. N.S. Sethi on 14-12-2002 for grant of some time to vacate the premises. Keeping the aforesaid undertaking in view the said authority adjourned the matter and thereafter recorded the evidence of the respondent No. 2. The landlord had deposed before the authority that he had become quite old and intended to settle at Jabalpur and lead a peaceful life. He had also deposed that his stay at Allahabad was not peaceful and he wanted to live last part of his life at Jabalpur. The Authority also took note of the fact that Mr. Sethi had been retired and the landlord wanted to stay in the premises with his family. He also took note of the stand that no application for acquisition of the premises in question was pending before the Authority. The Authority placed reliance on the decision rendered in the case of H.D. Vora v. State of Maharashtra, , and eventually came to hold that the landlord needed the premises in a bonafide manner and accordingly released the same in his favour. After passing of the said order an application was filed by the Ex-Registrar of the Tribunal to be impleaded as a party. By order dated 8-10-2003 the said application was rejected on the ground that the allotment was not made in favour of the Tribunal. The Authority referred to Sections 39 to 42 of the 1961 Act to fortify his findings. It is worth noting after the said application was rejected the landlord filed an application which came to be dealt with as per order dated 7-2-2004 whereby the Authority came to hold that earlier on he had directed release of the premises in favour of the landlord and there had been no stay and hence, possession should be handed over to him.
13. In this factual backdrop it is seemly to refer to Sections 39, 40 and 42 of the 1961 Act. Section 39 of the Act deals with control of letting. Section 40 provides for allotment of the accommodation. Section 40 is relevant for the present purpose. It reads as under :--
40. Allotment of the accommodation.-- The Collector [or the authorised officer] shall, as far as possible, allot accommodation under Sub-section (2) of Section 39 in accordance with the following principles :--
(1) The accommodation shall be allotted in the following order of priority :--
(i) persons holding office of profit under the Union or the State Government;
(ii) 17 persons in the service' of a Local Authority; Madhya Pradesh Electricity Board; Board of Secondary Education; Madhya Pradesh; or such other body corporate as may be specified by the State Government by Notification.
(2) If the accommodation was occupied by a person holding an office of profit for the Union or the State Government, it shall be allotted to his successor :
Provided that for reasons to be recorded in writing it may be allotted to any other person who is not a successor of the previous occupant.
Section 41 of the 1961 Act deals with the liability of persons allotted accommodation to pay rent.
14. The Division Bench in the case of Kishanlal (supra), in Paragraphs 3 and 4 has held as under :--
3. The powers of the Rent Controlling Authority to allot any accommodation are laid down under Sections 39, 40 and 40-A of the Madhya Pradesh Accommodation Control Act. The sole question that arises for consideration in this case is whether or not the accommodation could be allotted for Government office purposes. The Rent Controlling Authority has power to allot the premises under Section 39 to any person holding an office of profit under the Union or State Government or any person in the service of a Local Authority, the Madhya Pradesh Electricity Board, the Board of Secondary Education, Madhya Pradesh, or such other body corporate as may be specified by the State Government by a notification in the Gazette. The allotment is to be made having regard to the priorities mentioned in Section 40. The two sections clearly indicate that the allotment is to be made in favour of such persons as have been mentioned in Section 40. The allotment under Section 39 is not for an incorporate being for office purposes. Though under the definition of "person" in General Clauses Act, the term is to include any company or association or body or office whether incorporate or not, such meaning can not be given here as it would be clearly repugnant to the context in which the term has been used under Sections 39, 40, 40-A and 41. All the above mentioned sections do not contemplate an incorporate being as the person to whom the accommodation could be allotted. The meaning in which the word "person" is used is wholly clear from Section 42 which lays down that the tenure of the allotment made in favour of the person is to subsist till the person remains in office and the allotment terminates on such person retiring or on his being transferred or otherwise. The tenancy ensures as long as the person in question holds the office. There would be no question of a Corporation ceasing to hold an office of profit or its being transferred. The term "person" therefore can not be constructed to include an incorporate person such as office of the Government or a Corporation.
4. In this view of the matter, the Rent Controlling Authority was clearly wrong in allotting the premises to the excise department for office purposes. It is true that the upper storey has been allotted to the excise officer for his residential purposes but the order is a composite one and the tenancy could not be split up in such a manner as to sever the accommodation of the upper storey with the rest of the accommodation.
15. From the aforesaid pronouncement it is clear as crystal that the allotment is to be made in favour of a person under the tenancy as long as he holds the office. In the case at hand the document that has been brought on record clearly establishes the allotment was made in favour of number of incumbents holding the post of Chairman at various times and at last to Mr. N.S. Sethi. Mr. Sethi had taken time and thereafter had vacated the premises. Submission of Mr. Shroti is that after abolition of the Tribunal the property has come under the control of the High Court by virtue of the order passed by this Court in W.P. No. 2897/2003 on 17-7-2003. In the said writ petition the Division Bench of this Court while taking note of various facts in Paragraph 10 (g) and (h) directed as under :--
10 (a) *** *** *** *** ***
(b) *** *** *** *** ***
(g) All the buildings where the Benches of the Tribunal are functioning viz., Jabalpur, Gwalior and Indore excluding Bhopal shall be put at the disposal of the High Court. As accepted by the learned Deputy Advocate General for the State, after obtaining due instructions, the cases would be transferred within a fortnight. Thereafter the Registrar, Madhya Pradesh Administrative Tribunal shall handover the physical possession of the aforesaid buildings to the Registrar General, High Court of Madhya Pradesh.
(h) It is hereby directed that the furnitures including vehicle and all other accessories shall also stand transferred to the Registrar, High Court of Madhya Pradesh, who shall take possession thereof. In the meantime, the Registrar, Madhya Pradesh Administrative Tribunal, shall be deemed to be the custodian of the buildings and furniture.
As clarificatory paragrpah was added as per Paragraph 11 of the said order. Placing reliance on the same it is highlighted by Mr. Shroti that the High Court has become the tenant of the building and, therefore, it should have been heard in the matter. The aforesaid submission is only noted to be rejected. What was directed by the Division Bench was that the building shall be put at the disposal of the High Court and other infrastructure would stand transferred to the High Court. This only relates to control. To elaborate, whatever right of the Tribunal was over the building the same came under the disposal/control of the High Court. As has been, the premises in question, the Chairman of the Tribunal was occupying. It was not allotted in favour of the Tribunal. It was allotted in favour of the Chairman as a person. The Chairman was the tenant and not the Tribunal. This has not been acquired by any other authority. The allotment was personal. Thus, in view of the aforesaid no tenancy was created, as that would have been created in contravention of the statutory provisions and that was never the intendment of the order. The submission has been made only to build a castle in Spain, which the law does not countenance.
16. In view of the aforesaid premises, I proceed to enumerate my conclusions seriatim :--
(i) The respondent No. 2 is the owner in respect of the building and the premises appurtenant thereof, as has been held in W.P. No. 3836/1995 and refusal of interference in M.C.C. No. 317/2003.
(ii) The premises in question was allotted in favour of the Chairman of the Tribunal in his personal capacity and not in favour of the Tribunal.
(iii) No right did accrue in favour of the High Court by virtue of the order dated 17-7-2003 passed in W.P. No. 2897/2003 inasmuch as the Bench had only stated in respect of the building/infrastructure of the Tribunal to be transferred to the High Court and as the Tribunal did not have the right of tenancy in respect of the building the High Court could not have become a tenant in respect of the same.
(iv) The application for impleadment of the Registrar of the Tribunal before the Rent Control Authority has been rightly rejected, as there was no allotment in favour of the Tribunal neither in fact, and could not have been in law.
(v) The High Court being not a tenant, can not resist the order of release of the premises and thereby as a logical and natural corollary, to hand over possession in favour of the landlord by the impugned orders.
(vi) The submission that the Registrar of the High Court should be heard in the matter is sans substance being based on no substratum and, therefore, is repelled.
17. Consequently, the writ petition, being devoid of merit, stands dismissed. However, keeping in view the peculiar facts and circumstances of the case, there shall be no order as to costs.