ALLAHABAD HIGH COURT

             R.K. Khandelwal

             Vs.

             Moti Lal Chawla

Special Appeal No. 13 of 1963, (arising out of writ Petn. No. 190 of 1961), against
                                   judgment of Dwivedi, J

                          (M.C. Desai, C.J. and R.N. Sharma, J.)

             04.12.1962. 07.10.1963

             JUDGMENT

Desai, C.J.

1. This is an appeal from a judgment of our brother Dwivedi quashing by certiorari an
order passed by a commissioner under Section 7-A(4) of the U.P. (Temporary) Control
of Rent aid Eviction Act on 6-1-1961 and an order passed by a District Magistrate on
25-1-1961 in compliance with it. The facts are as follows. The accommodation in
dispute was allotted by the District Magistrate on 10-12-1955 to one B.K. Singh, who
was an inspector in his own office. The Inspector was subsequently transferred to
Sitapur and he managed to get the accommodation allotted on 21-5-1956 jointly in his
and respondent No. 1 Moti Lal Chawla's names. There was nothing in common.
Between the Inspector and Moti Lal Chawla and they did not form any partnership or
any other association of persons which could be recognised as one juristic entity. It is
clear that Sub Inspector misusing his position as such got the accommodation allotted
jointly in his and Moti Lal Chawla's names. He did not need the accommodation after
his transfer to Sitapur but wanted to retain some control, the respondent Moti Lal
Chawla also did not need any accommodation because admittedly he lives in another
mohalla Khyan Ganj. It is regrettable that the District Magistrate passed such a
improper allotment order and it shows how provisions of the Rent Control Act are
misused by District Magistrates. On 18-7-1953 the appellant applied to the District
Magistrate for allotment of the accommodation in His time alleging that it was vacant
and that neither the inspector nor Moti Lal Chawla was living in it. While this
application was pending Moti Lal Chawla and respondent No. 2 Vishnu Naram
Rastogi entered into some sort of a partnership on 5-3-1958 for running a chemist's
Business. On 11-7-1958 the District Magistrate allotted the accommodation to the
appellant and on 24-10-1958 the two respondents objected to the allotment order on
the ground that they had entered into a partnership to run a chemist's business in the
accommodation. The Act has no provision for such an objection and the District
Magistrate dismisses it. Then the District Magistrate issued a notice once. Section 7-
A(1) of the Act to the respondents on 26-11-1958 calling upon them to vacate the
accommodation. Moti Lal Chawla filed an objection against the notice repeating what
he had said in his objection dated 24-10-1958. The District Magistrate on 7-4-1960
after hearing the objection not only withdrew the notice issued by him under Section
7A(1) but also cancelled the allotment order dated 11-10-1958. He presumably acted
under the provide to Section 7A(1). The appellant applied to the Commissioner to
revise the order under Section 7A(4) and the Commissioner on 6-1-1961 set it aside on
the view that the partnership alleged by the respondents was a bogus partnership set
up as a cloak for getting possession over the accommodation and directed the District
Magistrate to proceed under Section 7A to get the accommodation vacated by the
respondents. This is one of the orders that has been quashed by our learned brother.
The respondents applied to the State Government to revise it out in vain. In
compliance with it the District Magistrate on 25-1-1961 passed the other order that has
been quasnea, vacating his earlier order and on 17-8-1961 issued a notice under
Section 7A(2) calling upon the respondents to vacate the accommodation by the next
day. Thereupon the respondents applied for certiorari and this Court stayed forcible
eviction of the respondents during the hearing of the petition. After hearing it our
learned brother allowed it on the ground that the Commissioner had no jurisdiction to
pass the impugned order of 6-1-1961 because n was held in Ram Sarup v. Shikhar
Chand, 1 that the words "has wrongly refused to act" in Section 7A(4) are redundant
and meaningless and that a Commissioner has jurisdiction to revise an order passed by
a District Magistrate only if the District Magistrate had acted illegally or with material
irregularity and the District Magistrate here had not acted illegally or with material
irregularity when passing the order of 7-4-1960. He also felt doubtful about the
correctness of the Commissioner's decision that the partnership set up by the
respondents was a sham (one).

2. Under Section 7(2) a District Magistrate may by general or special order require a
landlord to let or not to let any person any accommodation which, is or has fallen
vacant or is about to tan vacant and no tenant can sublet any portion of, an
accommodation in his tenancy except with the permission in writing of the landlord
and of the District Magistrate previously obtained. Sub-Section (1) of Section 7A is to
the effect that where an order to let out an accommodation has been duty passed under
Section 7(2) and the District Magistrate has reason to believe that any person has in
contravention or it occupied the accommodation he may call upon him a show cause
within a certain time why he should not be evicted from it provided that he should not
pass such an order if fie is satisfied that there has Seen undue delay or that it is
otherwise inexpedient to do so. sub-Section (1) is to the effect that if the person fails to
appear in reply to the notice issued under Sub-Section (1) or appears but tails to satisfy
the District Magistrate that the order under Section 7(2) was not duly passed and that
he is, entitled to remain in occupation, the District Magistrate may direct him to
vacate within a certain time, if the person does not comply with the order the District
Magistrate may evict him forcibly. Sub-Section (4) provides, that no appeal shad lie
from an order passed by a District Magistrate under this section but "the
Commissioner may revise the said order if he is satisfied that the District Magistrate
has acted illegally or with material irregularly or has wrongly refused to act and may
make such order as he thinks fit". Under this provision only an order passed by a
District Magistrate can be revised by the Commissioner that he acted illegally or that
he acted with; material irregularity or that he wrongly refused to act are only the
grounds justifying the revision. The orders, contemplated by Section 7A, and which
can. be revised under this provision, are, (1) calling upon a person in occupation, to
show cause why he should not be evicted (an order referred, to in Sub-Section (1)), (2)
an order directing him to vacate the premises after hearing him or on his failure to
appear (an order referred to in Sub-Section (2)) and (3) an order discharging the notice
or refusing to can upon me person to vacate the premises under Sub-Section (2) (an
implied, order under Sub-Section (2)). The last is an order refusing to act. He may
wrongly refuse to pass an order contemplated by Sub-Section (2) and if he writes out
an order refusing to pass it, it can be said to be an order refusing to act. One can also
say that if on being approached a District Magistrate refuses to pass an order
contemplated by Sub-Section (1), it is an order refusing to act. If an application is
made to him he has to pass an order and if he refuses to issue a notice or to direct the
person to vacate the premises in writing, it is an order refusing to set with in the
meaning of Sub-Section (4).

3. 1960 All LJ 810 : ( AIR 1361 Allahabad 221) (FB) (Supra) was a case dealing with
a District Magistrate a refusal to grant permission to a landlord to file a suit for
ejectment of his tenant. The order was set aside by the Commissioner on revision and
the validity of his order was questioned before Mootham, C.J. and Beg and Dhavan,
JJ. Section 3(1) forbids a suit being filed with out the permission of the District
Magistrate and foes not deal with any application or order to be passed thereon by the
District Magistrate. Sub-Section (2) is to the effect that a party aggrieved "by the order
of the District Magistrate granting or refusing to grant the permission may apply to the
Commissioner to revise the order. Sub-Section (3) dealing with the Commissioner's
powers as it then stood, laid down that if he was satisfied that the District Magistrate
"had acted illegally or with material irregularity or has wrongfully refused to act" he
could confirm or set aside the District Magistrate's order, Mootham, C.J. Hold that the
District Magistrate in the case had acted by making a specific order refusing
permission to the landlord and had difficulty in construing me words "wrongfully
refused to act" as meaning or including the making of an order refusing to grant
permission. According to him "refused to act" means that the District Magistrate
refused to take any action on an application for permission. His conclusion that the
words nave no meaning in law was restricted to the words as used in Section 3(3), and
the same cannot be said about the words used in a different context in Section 7-A(4).
One of the reasons given by the learned Chief Justice for the interpretation was that
Section 3(2) itself provided for an application for revision from an order granting or
refusing to grant permission; therefore, refusing to act meant something different from
refusing to grant permission. That argument is not available in respect of Section 7-A
a because there is no right of applying for revision expressly granted against an order
refusing to can upon the person in occupation to show cause or to vacate, and Sub-
Section (4) could contemplate unjustified inaction on the part of a District Magistrate.
Moreover in Section 3(2) the words "has wrongfully refused to act" had to be read
with reference to an order granting or 'refusing to giant the permission whereas in
Section 7-A(4) they are to be read with "any order passed by the District Magistrate"
and while the former set of words may not be said to include refusal to act, the latter
may. Sub-Section (3) of Section 7-A provides for acting by a District Magistrate in the
event of the accommodation not being vacated within the time allowed; it provides for
his using force to evict, or caused to be evicted, the person in occupation and for
putting the person, entitled under Section 7(2), in occupation. It seems to us that not
only refusal to act in this manner but also refusal to pass either of the orders
mentioned in Sub-Sections (1) and (2) is refusal to act within the meaning of Sub-
Section (4) and the Decision in Ram Sarup's case does not govern the instant case.
Chaube Jagadish Prasad v. Ganga Prasad, 2 was unnecessarily referred to at the bar.
It does not at all deal with the question under consideration. Revisional power under
Section 115, C.P.C., is quite different from the revisional power of a Commissioner
under Section 7-A(4); the words "has wrongly refused to act" do not occur in Section
115, C.P.C.

4. It was argued on behalf of the respondents that there was no vacancy when the
District Magistrate allotted the accommodation to the appellant on 11-10-1958. They
also contended, on the authority of Ram Lal v. Shiv Mani Singh, 3 to which one of us
was a party that if a person had already entered into occupation of an accommodation
under a contract of lease with the land-lord before an order under Section 7 (2) is
passed he cannot be said to be in occupation in contravention of me order passed
under Section 7(2) and cannot be called upon to show cause under Section 7-A(1) why
he should not be evicted from the accommodation. We do not agree that the
accommodation was not vacant on 11-10-1958; merely because an allotment order had
been passed on 21-5-1956. It could not be said to be not vacant. Even if in order under
Section 7(2) is passed an accommodation can remain vacant if the person in whose
favor it is passed does not accept lease from the landlord. An older under Section 7(2)
simply requires a landlord to let out the accommodation to the person named in the
order; it does not by its own force constitute him a tenant. So in spite of such an order
no lease may come into existence if the person named in the order doss not accept a
lease. Here the persons named in the order were B.K. Singh and Moti Lal Chawla and
they did not jointly take lease of the accommodation from the landlord. Moreover it
was alleged by the appellant in his application that they did not live in the
accommodation and so it was vacant as against them. The very fact that Moti Lal
Chawla and respondent No. 2 entered into partnership of 5-8-1958 for occupying the
accommodation shows that it was not occupied by B.K. Singh and Moti Lal Chawla
and that it was vacant to be occupied by the partnership. The partnership could not
occupy the accommodation unless it was vacant. It could not occupy it under the order
passed on 21-3-1955 in the names of B.K. Singh and Moti Lal Chawla because it was
a legal entity Distinct from that of H.J. Singh Moti Lal Chawla. 1962 All LJ 260 was
irrelevant in this case because it has not been asserted that the alleged partnership
entered into the occupation of the accommodation under a contract of lease with the
landlord prior to 11-10-1958. The mere formation of a partnership did not mean
occupation under a contract of lease with the landlord.

5. The District Magistrate had no jurisdiction whatsoever to allot the accommodation
jointly to two persons who did not constitute a single legal personality. He could allot
the accommodation to a partnership or to a company or to any other association of
persons, but had no jurisdiction to compel two persons to share an accommodation.
B.K. Singh and Moti Lal Chawla did not constitute one person under the law and,
therefore, the accommodation could not have been allotted to them. The allotment
order in their favor was null and void.

6. Sri Dhaon contended that an application under Section 7-A(1) can be made by an
allottee (e.g. a person in whose favor an allotment order is passed) only in the person
in occupation occupied the accommodation in contravention of the allotment order, i.e.
occupied it after the allotment order. It is true that an obvious instance of occupation in
contravention of an allotment order is occupation, after an allotment order is passed,
by a person ether than the allottee, but we are not satisfied that it is the only instance
of occupation in contravention of an allotment order. If a person occupies an
accommodation before art allotment order is passed and continues to be in occupation
after it is passed he can be said to occupy it in contravention of it if it is not passed in
his favor. Continuing in occupation is occupying and occupation may become an
occupation in contravention of an allotment order after it has commenced. If
occupation commenced earlier is inconsistent with an allotment order under which
another person has been given a right to occupy it, it is occupation in contravention.
Any other interpretation would render the beneficial provision of Section 7A(1)
unavailable in many cases. A person cannot thwart an allottee by occupying an
accommodation before an allotment order it passed. If Section 7-A does not give him a
remedy, there is no other provision which win, not even Section 8. Remedy by a
regular suit for ejectment of the occupant even if available is in practice no remedy. In
Chhotey Lal v. District Magistrate Moradabad,4 it was held that continuing
occupation is occupying in contravention of an allotment order. This decision was
approved in 1962 All LJ 260 at p. 262.

7. Another contention advanced by Sri Dhaon was shat an application under Sub-
Section (4) of Section 7-A can be made only by the person who has been ordered to be
evicted under Sub-Section (2). There is nothing in the language of Sub-Section 7-A to
support the contention. The right of revision is granted not to a particular party, but
against a particular order, namely an order passed under Section 7-A. No party or
person has been denied the right to apply under Sub-Section (4) and, therefore, it
cannot be said that an allottee has no right to apply under it. The words "any order"
used in Sub-Section (4) are wide enough to include any of the orders that can fie
passed under Sub-Section (1) or Sub-Section (2) of Section 7-A. In the alternative Sri
Dhavan contended that even if an allottee can file an application under Sub-Section
(4), the appellant ceased to be an allottee on account of the allotment order in his
favour being cancelled the District Magistrate and was not an allottee on the date on
which he applied under Sub-Section (4). We cannot accept this contention also,
Section 7-A has been, enacted in the interest of an allottee; the object is to enable to
be put in possession in implementation of we allotment order after evicting a person in
occupation without any allotment order. The proceeding starts with are application
under Sub-Section (1) by an allottee and ones with an order passed by the
Commissioner under Sub-Section (4). It is enough if at the time of making an
application under Sub-Section (1) the applicant is an allottee; the is an allottee he has
a right to go through the proceeding right upto the revision stage mentioned in Sub-
Section (4). In a proceeding under Section 7-A the allotment order passed in his
favour cannot be attacked and cannot be set aside. The District Magistrate has only to
decide whether the person in occupation should be caned upon to vacate and whether
he should be evicted or not; he is not called upon to decide whether the allotment
order was valid or correct or not and he has no jurisdiction to cancel it. Even if he
finds that an allotment order was invalid it is enough for him to refrain from passing
an order under Sub-Section (2) calling upon the person in occupation to vacate within
a certain time and from using force to evict him in the event of his failing to comply
with his order; he has not to go further and cancel the allotment order. Therefore, the
cancellation of the allotment order in the instant case by the District Magistrate was
without jurisdiction and could be attacked collaterally before the Commissioner in the
application under Sub-Section (4). The appellant could claim in his application that
notwithstanding the null and void order cancelling the allotment order he remained an
allottee entitled to the benefit of the provisions of Section 7-A. If the District
Magistrate had simply refrained front calling upon respondents 1 and 2 from vacating
the accommodation under Sub-Section (2), the appellant would undoubtedly have
been entitled to apply to the commissioner under Sub-Section (4) and the mere fact
that the District Magistrate added an order cancelling the allotment order in his favor
cannot deprive him of the right. It is not given to the District Magistrate to deprive a
person in this manner of the statutory right to apply in revision. It is true that no
revision lies to the commissioner against an allotment order, but it cannot be said that
no revision lies when an allotment order is cancelled without any Jurisdiction in a
proceeding under Section 7-A. A Commissioner may have no jurisdiction to set aside
an allotment order but he has jurisdiction, when acting under Sub-Section (4), to
recognize an allotment order and to implement it by ordering the allottee to be put into
possession after eviction of the person in occupation, it is open to him to ignore
cancellation of the allotment order passed by the District Magistrate without
jurisdiction; his ignoring it does not amount to exercising jurisdiction not conferred
upon him against an order under Section 7(2). Actually the Act does not contain any
provision for cancellation of an allotment order and, therefore, no provision for
revision of such an order.

8. Whether the alleged partnership was a real partnership or a fictitious partnership
was essentially a question of fact. The Commissioner found that it was a fictitious
partnership and his finding being of fact could not be set aside by our learned brother
in a proceeding for certiorari. The finding was within the jurisdiction of the
Commissioner and being one of fact could not be said to be manifestly illegal. The
manner in which the partnership was set up and the circumstances in which me
accommodation was sought to be usurped by B.K. Singh and Moti Lal Chawla hardly
left any room for doubt that it was a fictitious partnership. Further even if the
partnership had been formed it acquired no right whatsoever to occupy the
accommodation which was not allotted to it. Only B.K. Singh and Moti Lal Chawla
jointly had a right to occupy it and neither Moti Lal Chawla exclusively nor he in
partnership with respondent No. 2.

9. The order passed by the Commissioner, was not without jurisdiction and did not
suffer from any manifest error of law and could not be quashed by certiorari. The other
order passed by the District Magistrate did not suffer from any infirmity and was a
consequential order to that passed by the Commissioner; therefore it also could not be
quashed by certiorari. Both were just orders, which should not have been set aside by
certiorari.

10. We allow this appeal, set aside the order passed by Dwivedi, J. and dismiss the
respondent's petition for certiorari with costs throughout.

Appeal allowed.

Cases Referred.

1. 1960 All LJ 810: (AIR 1961 All 221) (FB)
2. AIR 1959 SC 492
3. 1962 All LJ 260
4. AIR 1952 All 913