Arun Kumar Joseph and others v Victor Samuel Mathews and others
Allahabad High Court
30 July 2013
Writ A No. 29272 of 2011, Writ A No. 59228 of 2010, Writ A No. 59229 of 2010 with Writ A No. 28895 of 2003
The Judgment was delivered by : Shiva Kirti Singh, J.
1. Parties have been heard in detail.
2. By a specific order passed on 19.05.2011 in the first case of Arun Kumar Joseph, a learned Single Judge has referred two questions of law for determination by a Larger Bench in the light of apparent conflict between two sets of judgments passed by different Benches of learned Single Judges. The connected matters are to be governed by the answers to the issues under reference. The questions of law referred are as follows:-
“(a). Whether release application by landlord can be said to be barred by limitation if the same is presented after more than 12 years from the date person is said to have entered into an unauthorized occupation of the premises covered byU.P. Act No.13 of 1972;
(b) Whether in absence of any limitation being provided under U.P. Act No.13 of 1972 for initiation of release proceedings, qua deemed vacancy can any period of limitation, be read in the statutory provisions, on the principle that the power/right vested must be exercised within reasonable time.”
3. Before scrutinizing the two sets of judgments and other relevant judgments on the aforesaid issues and the relevant provisions of U.P. Act No.13 of 1972, the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘the Act’), the relevant facts of the first matter at hand may be noted in brief. Petitioner- Arun Kumar Joseph is undisputedly in occupation of the premises in question, since 1994. There is no allotment order in his favour and it is also not in dispute that the provisions of the Act are applicable to the premises in question. After purchasing the property from the earlier owner, the respondents filed a release application before the Rent Control and Eviction Officer sometimes in 2007 on the ground that the writ petitioner is an unauthorized occupant because there is no allotment order in his favour and as such there is a deemed vacancy under the Act and hence, the property be released in their favour on account of bona fide personal requirement. The writ petitioner contested the application under Section 16 (1) (b) of the Act and took a specific plea that since possession of the petitioner is for more than 12 years, therefore, he cannot be evicted nor vacancy can be declared. The Rent Control and Eviction Officer declared vacancy by order dated 28.8.2009 and release was ordered on 18.8.2010. Writ petitioner’s revision application before the District Judge was also dismissed by the impugned order dated 26.04.2011.
4. Before the Writ Court, the main contention was that even if a person is in possession of premises covered by the Actwithout any allotment order in his favour, release application filed after 12 years would be barred by time. Admittedly,the Act does not prescribe any such limitation, but reliance was placed upon three judgments rendered in different matters by the learned Single Judges of this Court. Those judgments are mentioned in the order of reference as ‘judgments 1st set’. The judgments are in the case of (1) Smt. Jamuna Devi Vs. District Judge, Kanpur Nagar & Others, 2009 (1) ARC 266, (2) Hazi Naseem Ahmad Vs. Rent Control and Eviction Officer, 2009 (2) ARC 117 2009 Indlaw ALL 2289 and (3) Rajeev Maurya Vs. Rent Control and Eviction Officer/ADM (City), 2008 (3) ARC 359.
5. On the other hand, the contrary contention advanced on behalf of the respondents was based upon the contrary views taken by two learned Single Judges in two different cases, (1) Babloo Vs. Munna Lal Verma & Another, 2007 (3) ARC 6332007 Indlaw ALL 2255 and (2) Rajendra Singh Vs. The Rent Control and Eviction Officer, 2006 (2) ARC 287.
6. A perusal of judgments of 1st set discloses that in the earliest of these judgments in the case of Rajeev Maurya (supra) dated July 16, 2008, the learned Single Judge in paragraph 3 placed reliance upon the authority of the Supreme Court reported in Mansaram Vs. S.P. Pathak, AIR 1983 SC 1239 1983 Indlaw SC 148 and his own judgment in the case of Anil Kumar Dixit Vs. Smt. Maya Tripathi and Another, 2006 (1) ARC 377 2005 Indlaw ALL 884, to hold that proceedings for allotment of release on the ground of deemed vacancy may be initiated within 12 years from the date of occurrence of vacancy. Thereafter came the judgment in the case of Smt. Jamuna Devi (supra) dated 19th September, 2008. In that case also, release order was interfered with mainly by placing reliance upon the judgment of the Supreme Court in the case of Mansaram 1983 Indlaw SC 148 (supra) by highlighting the view that when power is conferred to effectuate any purpose, it has to be exercised in a reasonable manner. Reasonable exercise would also mean exercise within a reasonable time. Learned Single Judge pointed out that this view was followed by this Court in the case of Brij Bala Jain Vs. Amar Jeet Kaur, 1996 (2) ARC 474. Judgement in the case of Brij Bala Jain (supra), which appears to be one of the earliest judgments on the issue, is totally based upon the judgment of the Apex Court in the case of Mansaram 1983 Indlaw SC 148 (supra). The third judgment of 1st set was rendered in the case of Hazi Naseem Ahmad 2009 Indlaw ALL 2289 on 24th April, 2009. It simply follows the views taken in the other judgments of the 1st set of cases referred therein including the judgment of the Apex Court in the case of Mansaram 1983 Indlaw SC 148 (supra).
7. On the other hand, a perusal of two judgments in 2nd set discloses that in the case of Babloo 2007 Indlaw ALL 2255(supra) decided on August 22, 2007, the learned Single Judge affirmed the views of Court below and held that there is no limitation under the Act which will extinguish the right of landlord to take action on the basis of his need. The learned Single Judge referred to the whole Scheme of the Act to point out that in certain circumstances, the landlord has the right to initiate action for bringing the relationship of tenant and landlord to an end and when the Act does not prescribe any period of limitation, holding otherwise would in such cases, debar the landlord for all times to initiate a proceeding or Suit against the tenant if a period of limitation is read into the Act by judicial pronouncements, even if it is established that need of the landlord is bona fide. The judgment of the Apex Court in the case of Mansaram 1983 Indlaw SC 148 (supra) was also noticed for pointing out that the Apex Court did not prescribe any period of limitation and, therefore, action can be initiated within a reasonable time. In the case of Rajendra Singh (supra) decided on March 31, 2006, the issue of limitation was neither raised nor decided.
However, the relevant facts mentioned in the judgment disclose that although the tenant was in occupation without any allotment order since 1976, the declaration of vacancy on 11.1.1994 and order of allotment dated 20.1.1994 were held to be valid on the ground that the writ petitioner was in occupation of the premises without allotment order after July 1976 and, therefore, he had become an unauthorized occupant.
8. It may be relevant to mention here that the learned Single Judge, who rendered the judgment in the case of Babloo2007 Indlaw ALL 2255 (supra) followed his views in the case of Chandra Mohan Sama Vs. Banwari Lal Ghai, (2010) 9 ADJ 303. In this case, after noticing that the Act does not prescribe any period of limitation for the landlord for seeking release of the premises, it was held that reading of period of limitation would amount to permitting illegal occupants to enjoy legal sanction for acts done in violation of the provisions of the Act and occupation of building without allotment would frustrate the regulatory provisions of the Act against the object for which the Act was enacted. An example was cited that due to forcible occupation of a premises by an influential person or Mafia, the landlord may be forced to maintain silence for a long period, but this as per provisions of the Act would not destroy his right to seek vacancy at a later period by pointing out that the occupation was without allotment and he was in bona fide need of the premises. Another learned Single Judge in the case of Shital Prasad Vs. R.C. and E.O./Additional City Magistrate (First) Kanpur Nagar and Others, (2010) 3 ADJ 328 2010 Indlaw ALL 2172 also held that if a wrong committed by landlord inducing a tenant without allotment order is granted legal sanction on account of passage of reasonable time, it would amount to allowing an illegality to continue indefinitely and that “two wrongs will not make one right”.
9. In view of sharp conflict of opinion between two sets of judgments of this Court rendered by different Benches of learned Single Judges, as noticed above, it is imperative to notice, in some detail, the judgment of the Apex Court in the case of Mansaram 1983 Indlaw SC 148 (supra) and one of the earliest judgments of this Court in the case of Brij Bala Jain (supra), wherein the learned Single Judge chose to rely upon that judgment and held that in any case 12 years period should be taken as reasonable time for initiating a proceeding under the Act from the date cause of action arises for taking action. Only in exceptional circumstances, a person may claim extension of time beyond 12 years. Thereafter it would be relevant to notice another Division Bench judgment of this Court rendered in the case of Ajay Pal Singh Vs. District Judge, Meerut & Ors., 2008 (5) ADJ 538 (DB), answering a reference on three questions relating to same very Section 16 (1) (b) of the Act.
10. Before proceeding to discuss the aforesaid judgments for culling out their ratio and correct proposition of law on the subject, it is necessary to notice some relevant provisions of the Act. The object of the Act is to provide, ‘in the interest of the general public, for the regulation of letting and rent of and the eviction of tenants from, certain classes of buildings situated in urban areas and for matters connected therewith.’ While the general prevailing view in respect of the Rent Control Act is that they are basically meant for protection of the tenant and if he goes on paying the agreed rent regularly, he cannot be evicted except on the ground of bona fide need of the landlord, the declared purpose of the Act is interest of the general public, which is apparent also from Section 2 of the Act, which exempts several kinds of buildings from operation of the Act. Such exempted buildings include not only the buildings of Government or Local Authority etc., but also buildings of Educational Institutions, Public Charitable or Public Religious Institutions or of Waqf, Factories, buildings for industrial purposes, for public entertainments, buildings built and held by the Registered Societies or Cooperative Societies, Companies or Firms constructed for its own occupation or for its officers or servants or even the buildings whose monthly rent exceeds Rs.2000/-. Newly constructed buildings are also exempted for a period of 40 years. While Chapter II of the Act deals with regulation of rent and prohibits premium or additional payment over and above the rent payable, Chapter III of the Act deals with regulation of letting. Section 11 of the Act contains a prohibition on letting without allotment order issued under Section 16 of the Act. Section 12 of the Act provides for deemed vacancy of building in certain cases. Section 12 (1) of the Act applies both to a landlord as well as a tenant. As a result of this provision, if a landlord or tenant has allowed a building covered by the Act to be occupied by any person, who is not a member of his family or in some other circumstances also, they shall be deemed to have ceased to occupy the building or a part thereof and a deemed vacancy shall arise. Section 13 of the Act puts restrictions on occupation of building without allotment or release. Section 14 of the Act permits regularization of authorised licensee or tenant in certain circumstances, if they were lawfully continuing as such when the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 came into force. Section 15 of the Act places obligation upon landlord as well as tenant to intimate vacancy to the District Magistrate within a limited period as specified in the Section. Section 16 ofthe Act contains provisions for allotment and release of vacant building.
11. For the purpose of better appreciation of issues at hand, Sections 11, 12 (1), 13, 14, 15 and 16 (1) & (2) are quoted below:-
“11. Prohibition of letting without allotment order. – Save as hereinafter provided, no person shall let any buildings except in pursuance of an allotment order issued under Section 16.
12. Deemed vacancy of building in certain cases. – (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if –
(a) He has substantially removed his effects therefrom; or
(b) He has allowed it to be occupied by any person who is not a member of his family; or
(c) In the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
13. Restrictions on occupation of building without allotment or release. – Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf or otherwise than under an order of allotment or release under Section 16 and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part.
14. Regularization or occupation of existing tenants. Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building.
15. Obligation to intimate vacancy to District Magistrate. –
(1) Every landlord, shall on a building falling vacant by his ceasing to occupy it or by the tenant vacating it or by release from requisition or in any other manner whatsoever give notice of the vacancy in writing to the District Magistrate not later than seven days after the occurrence of such vacancy, and such notice may at the option of the landlord be given before the occurrence of the vacancy.
(2) Every tenant so vacating a building shall give notice thereof in writing to the District Magistrate and also to the landlord not less than fifteen days before the vacancy.
(3) The notice under sub-section (1) or sub-section (2) shall contain such particulars as may be prescribed.
(4) The District Magistrate, on being satisfied on an application made to him in that behalf that there was sufficient cause for the landlord or the tenant not to give notice under sub-section (1) or sub-section (2) within time, may condone such delay.
16. Allotment and release of vacant building. – (1) Subject to the provisions of the Act, the District Magistrate may by order –
(a) require the landlord to let any building which is or has fallen vacant or is about to fall vacant or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order); or
(b) Release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order):
[Provided that in the case of a vacancy referred to in sub-section (4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a).]
(2) No release order under clause (b) of sub-section (1) shall be made unless the District Magistrate is satisfied that the building or any part thereof or any land appurtenant thereto is bona fide required, either in its existing form or after demolition and new construction, by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, calling or where the landlord is the trustee of a public charitable trust, for the objects of the trust, or that the building or any part thereof is in a dilapidated condition and is required for purposes of demolition and new construction, or that any land appurtenant to it is required by him for constructing one or more new buildings or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings :
Provided that no application under this sub-section shall be entertained for the purposes of a charitable trust the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste or place of birth.”
12. As indicated above, answer to the questions under reference depends heavily upon correct appreciation of judgment of the Supreme Court in the case of Mansaram 1983 Indlaw SC 148 (supra). That case involved Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as ‘Rent Control Order, 1949’), particularly Clauses 22, 23 and 25. The appellant of that case had obtained lease of the concerned premises while he was in service under the Telephone Department. After retirement in 1967 he continued in possession of the premises. Respondent no.1-Sri S.P. Pathak preferred an application before the House Allotment Officer in 1976-77 against the appellant- Mansaram 1983 Indlaw SC 148 alleging that appellant’s occupation was in contravention of different clauses of the Rent Control Order, 1949 which required that premises occupied by a holder of office of profit under the Union or the State had to vacate the premises on ceasing to hold the office or the post which enabled him to obtain an order of allotment. The Apex Court held that there was no material to show that the appellant had obtained allotment of the premises on the ground of being in service under the Union or the State. The legal provisions in that case cast a duty only upon landlord of giving intimation of vacancy and if no allotment was issued within 15 days of the intimation, the landlord could proceed to let out the premises of any one. The only duty upon the tenant was to seek an assurance from the landlord that the premises were legally permitted to be occupied. The applicant in that case was not a landlord, but a person desirous of allotment of the premises in his favour. The landlord did not contest the defence of the appellant, who was the tenant. On various counts, in the facts of that case, the Apex Court came to the conclusion that the facts did not support the allegation that the appellant continued to be a tenant of the premises in violation of provisions of the Rent Control Order, 1949.
13. The Apex Court after deciding the case of Mansaram 1983 Indlaw SC 148 (supra) in his favour on the basis of facts and materials available on record, also noticed that power was conferred on the Collector by Clause 28 to see that the provisions of the Rent Control Order, 1949 are effectively implemented and if he finds on information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who occupies the premises in contravention of the provisions. Such suo motu power was not subject to any limitation, but considering the nature of the power, the Apex Court observed that where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner, which implies its exercise within a reasonable time. In that case, the legality of the appellant’s continuance as a tenant was decided after he was in possession for 22 years as a tenant. Even after retirement, the appellant had continued as a tenant till 9 years. The landlord in that case had not sought his eviction under any statutory provision or otherwise. In such facts, the Apex Court held that although no period of limitation was prescribed for exercise of power by the Collector under Clause 28, it was not obligatory for the Collector to pass a peremptory order of eviction rather in such situation, it would be open to him not to evict the appellant.
14. To buttress the proposition that power conferred to effectuate a purpose should be exercised in a reasonable manner and within a reasonable time, the Apex Court noticed a judgment in the case of Murlidhar Agarwal and Another Vs. State of U.P. & Others, AIR 1974 SC 1924 1974 Indlaw SC 264, which related to the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as ‘the Act, 1947′). In that case, the District Magistrate had power to take action against unauthorised occupation under Section 7-A, but as noticed by the Apex Court itself, there was a proviso to that Section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there had been undue delay or otherwise it was inexpedient to do so. The other judgment noticed was in the case of State of Gujarat Vs. Patel Raghav Natha & Others, AIR 1969 SC 1297 1969 Indlaw SC 176. That case involved exercise of suo motu power of revision by the Commissioner under Section 211 of the Bombay Land Revenue Code, which did not prescribe any period of limitation for exercise of revisional powers. The Commissioner exercised such suo motu revisional power after one year from making of order by the Collector. The High Court set aside the order of the Commissioner on the ground that such power must be exercised within a reasonable time and period of one year was held to be too late. The Apex Court also declined to interfere in the matter.
15. The aforesaid discussion clearly reveals that case of Mansaram 1983 Indlaw SC 148 (supra) was decided mainly on the basis of facts and the law which was discussed for holding that power available for a purpose should be exercised for that purpose within a reasonable time was not in the context of any proceeding for initiation whereof a right has been vested in a party such as a landlord under Section 16 (1) (b) of the Act. The context was a situation where an authority had been vested with general power of supervision to be exercised at its discretion or suo motu power of revising orders of subordinates. In that context the law is trite that such power must be exercised in a manner and within a time which should satisfy the test of reasonableness. The situation would be entirely different as in the present case if the statutory provisions create a right in one or the other party to move an authority for relief under express provisions of the Statute. In such a situation no limitation can be read so as to prevent the concerned party from obtaining a decision in the lis on merits from the competent authority. In cases where right is vested by the Statute, the right can be circumscribed only by Statute and not by discretion of the authority. Holding otherwise would amount granting supremacy to an Executive or Administrative Officer over the express intention of the Legislature. The judgment of the Apex Court in the case of Mansaram 1983 Indlaw SC 148 (supra) dealt with entirely different provisions of law and the fact that reliance was placed upon the case of State of Gujarat 1969 Indlaw SC 176 (supra) makes it abundantly clear that the Court was laying down the law in the context of discretionary, supervisory or suo motu power of revision. The ratio of that judgment cannot be applied to the issues under reference, which have to be answered in the context of provisions of the Act alone.
16. The judgment of the learned Single Judge in the case of Brij Bala Jain (supra) to the extent it relied upon the judgment of the Apex Court in the case of Mansaram 1983 Indlaw SC 148 (supra) for holding that even in absence of any period of limitation only 12 years’ time can be granted as a reasonable time for initiating the proceedings under a Statute, in our considered view, does not lay down the law correctly and is based upon incorrect appreciation of law laid down in the case of Mansaram 1983 Indlaw SC 148 (supra). The other judgments of the 1st set and the judgments following those cases for holding that an application by a landlord under Section 16 (1) (b) of the Act must be rejected if it is filed beyond 12 years from the date of unauthorised occupation of premises by a tenant also did not lay down the correct law. To that extent they stand over ruled. The judgments of the learned Single Judges noticed in the order of reference as ‘judgment 2nd set’ have rightly answered the questions on the basis of provisions of the Act under which there is no scope to dilute the prohibition in Section 11 that no person shall let any building without allotment order and there shall be deemed vacancy of building as provided by Section 12 of the Act. Occupation without an order of allotment or release under Section 16 of the Act cannot be treated to be lawful because Section 13 of the Act mandates such occupation to be treated as an unauthorised occupation. The obligation to intimate vacancy to the District Magistrate under Section 15 of the Act is upon both, the landlord as well as a tenant vacating the building. The power vested under Section 16 upon the District Magistrate to issue an allotment order in favour of any person and require the landlord to let the vacant building to such person is in larger public interest and to sub-serve the purpose of the Act. The power to release the whole or any part of such building in favour of the landlord upon being satisfied that the building is required by the landlord for occupation by himself or any member of his family is to protect the bona fide interest of a landlord when the building has fallen vacant or is about to fall vacant in terms of provisions of the Act. Such protection to the landlord in case of bona fide requirement cannot be made dependent upon a particular period of time which expired between the building falling vacant, either actual or deemed and the date of application by the landlord. There may be cases where the landlord may not have bona fide requirement of the building for a decade or more and hence, he cannot seek a release order till he faces bona fide requirement and is in a position to prove the same to the satisfaction of the District Magistrate through an application under Section 16 (1) (b) of the Act. The Legislature has nowhere given any discretion to the District Magistrate to treat unauthorised occupation of a building as authorised occupation on account of lapse of any time period. The Supreme Court in the case of Mansaram 1983 Indlaw SC 148 (supra) noticed the judgment in the case of Murlidhar Agarwal 1974 Indlaw SC 264 (supra) and also the provision in Section 7-A of the Act, 1947, which enabled the District Magistrate not to evict a person found to be in unauthorised occupation in case he was satisfied that there was undue delay or otherwise it was inexpedient to do so. There is no such provision in the Act, which has been enacted by the same Legislature at a later stage. This also reflects the intention of the Legislature not to vest any discretion in the District Magistrate in the context of Section 16 (1) (b) of the Act.
17. The view which we have taken above is supported by the views taken by a Division Bench of this Court in the case of Ajai Pal Singh (supra). In that case the questions referred to the Division Bench for answers required the Court to decide whether in case a landlord lets a building covered under the Act to a person without allotment order and the building is declared vacant on account of such letting, the landlord is deprived of seeking release of such building under Section 16 (1) (b) of the Act or not. In order to answer the issue raised through three different questions, the Division Bench considered the relevant judgments of this Court as well as the Supreme Court, the provisions in the Act as also the relevant provisions in the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as ‘the Rules’). Rule 13 of the Rules, which relates to the release of premises on an application by the landlord was extracted and after noticing all the materials, the Division Bench has held as follows:-
“This statutory right of the landlord under Section 16 (1) (b) has not been infringed or diluted in any manner because of the vacancy having been deemed because of an unauthorised occupant having been put in possession of the premises by the landlord. the Actconfers a right upon the landlord to make an application for release of the building or part thereof or any land appurtenant thereto even in respect of premises which are deemed to be vacant under Section 12 (4). The authority concerned, however, has been conferred a discretion to allow the application only on certain conditions being proved to exist to his satisfaction. If the landlord in a given case fails to satisfy the authority concerned on any of the aspects, which are necessarily to be examined for allowing the application, the authority may reject the application and thereafter consider the allotment applications made by the prospective allottees.”
18. It is to be noticed that Section 16 (1) (a) of the Act authorising issuance of an allotment order in favour of a prospective tenant in respect of a vacant building as well as Section 16 (1) (b) of the Act authorising issuance of a release order in favour of the landlord are equally applicable to a building which is deemed to be vacant under Section 12 of the Act. Anybody in occupation of such building without allotment order or release order has to be treated as an unauthorised occupant, who cannot stand in the way of issuance of an allotment order on an application by a prospective tenant or in the way of the landlord seeking a release order. Under Rule 13 of the Rules so long as the application for release is pending, an application for allotment has to be kept pending. There is no good reason why a limitation of 12 years should be read in respect of an application by the landlord for release even if he is able to prove his bona fide requirement when there is no reason or scope to create similar bar of limitation upon a prospective tenant who may apply for an allotment order under Section 16 (1) (a) of the Act any time. The views of the Division Bench on consideration of Rule 10 (5) of the Rules that while restrictions have been placed under the Act and the Rules on the rights of the unauthorised occupants qua allotment of the premises, but no similar restrictions have been placed by the Legislature on the rights of the landlord who has inducted unauthorised tenant, so far as his release application under Section 16 (1) (b) of the Act is concerned, clearly support the view which we have adopted.
19. Before concluding the discussions, we feel duty bound to take note of a recent judgment by a learned Single Judge of this Court in Writ-A No.33751 of 1999 (Smt. Uma Yadav Vs. A.D.M. (Supply)/R.C.E.O. Vns. & Ors. rendered on 16.07.2012). Even after noticing that the present reference is pending before a Division Bench of this Court, the learned Single Judge has, in that judgment, ventured to discuss all the relevant aspects for coming to a conclusion that the judgment in the case of Mansaram 1983 Indlaw SC 148 (supra) did not lay down any period of limitation such as 12 years. It also considered that even if a period of 12 years, as held in some judgments, is presumed to be correct, it would depend upon the facts and circumstances because period of 12 years would necessarily have to be calculated from the time when cause of action would arise. It was pointed out that cause of action can arise on different dates depending upon whether the application has been filed by the landlord whose accommodation is under unauthorised occupation or by an applicant, a prospective allottee, who is in need of accommodation which he finds out to be in unauthorised occupation or for the Rent Control and Eviction Officer/District Magistrate who have to accept the verdict of the Statute and declare vacancy and make allotment when the facts of vacancy or deemed vacancy are brought to their notice. It was also rightly pointed out by the learned Single Judge that a landlord also may come to know about unauthorised occupation at a subsequent date, if he is residing elsewhere and can satisfy the Authority about his ignorance. Clearly 12 years’ period cannot apply uniformly in a case of unauthorised occupation. In the present case, the landlord has purchased the premises from the previous landlord and on that count itself, he may claim and prove that he came to know about the tenant being unauthorised occupation without an allotment order at later stage in 2007-08 and that gave him cause of action for treating the premises to be under deemed vacancy and available for seeking an order of release.
20. The principle in the case of Mansaram 1983 Indlaw SC 148 (supra) that power vested in an authority must be exercised in a reasonable manner and within a reasonable time flows from Article 14 of the Constitution of India and may apply at best only where the information about the unauthorised occupation was available to the District Magistrate/R.C.E.O., but they failed to exercise their power in a reasonable manner or within a reasonable time. The responsibility or duty of reasonableness cannot be fastened upon private person, a future allottee, i.e. prospective tenant or a landlord seeking release. Their rights flowing from the Statute have to be governed by provisions of the Actitself. As discussed earlier, the right flowing from the Statute cannot be curtailed or abridged by reading power into the authority such as District Magistrate to reject the application for release on the ground of limitation. Being a creature of the Statute, the District Magistrate must act within four corners of the Statute and cannot assume a power not vested in him, such as a power to reject the application for release on the ground of limitation not prescribed by the Statute.
21. For all the aforesaid reasons, we have no hesitation in answering the questions under reference in the following terms:-
(i) Answer to Question No.(a):- Release application by landlord cannot be treated to be barred by limitation even if the same is presented after more than 12 years from the date person has entered into an unauthorised occupation of the premises covered by the Act.
(ii) Answer to Question No.(b):- In absence of any limitation being provided under the Act for initiation of release proceedings in respect of deemed vacancy, no period of limitation can be read in the statutory provisions only on the principle that a power vested in an authority must be exercised within a reasonable time.
22. The reference having been answered, we remit all the matters back to the concerned Bench for disposal of the writ petitions as per law in the light of discussions made in this judgment and the answer to the questions of law referred to us.
Order accordingly
