MADHU GOPALversusVI ADDITIONAL DISTRICT JUDGE & ORS.

                              MAOHU GOPAL
A                                      v.
             VI ADDITIONAL DISTRICT JUDGE & ORS.

                           SEPTEMBER 26, 1988

B    (SABYASACHI MUKHARJI .\ND S. RANGANATHAN, JJ.]

           U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
    Act 1972/U.P. Urban Buildings (Regulation of Letting, Rent and Evic-
    1iot1) Rules, 1972. Section 16(5)(a}/f<ule 10(9)-Review of order of
    release/Allotment-A landlord even though not in actual possession can
C   ask for review of the order.

         The petitioner in the Special Leave Petition is the tenant, Respon-
    dent No. 3 was one of the five co-owners of the petition premises.
          On January 28, 1978, one of the co-owners who had sole posses-
D   sion of the shop vacated the shop and sent intimation of the vacancy to
    the Rent Controller under the U.P. Urban Buildings (Regulation of
    Letting and Eviction) Act, 1972. The petitioner filed allotment applica-
    tion for the said shop and he was the sole applicant.


E         The Rent Control Officer directed the petitioner to appear in the
    allotment proceedings, called for a report from the Inspector, found
    one of the co-owners to be in possession of the shop and that he had
    discontinued the business and was going to let out the shop. The 3 other
    co-owners never objected to the petitioner's tenancy on the allotment
    order. The allotment letter was accordingly passed on 12th February,
F   1978, and possession was taken up by the petitioner thereafter.


          On or about 25th February, 1978 the 3rd respondent who was a
    non-occupant owner filed an application under section 16(5) of the Act
    i.e. after 25 days of the allotment, for review of the order. The Rent
    Controller allowed the review application and cancelled the allotment
G   order.

           The Additional District Judge having dismissed the revision peti-
    tion, the petitioner filed a writ petition in the High Court.

H         The question about the maintainability of the review application
                                      276
                        .. ,·'
                 MAOHU GOPAL v. ADDL. DISTI. JUDGE                       277

under section 16(5) of the Act aHhe instance of a non-occupant owner
                                                                                A
having arisen the matter was referred to a Full Bench and by a majority,
the Bench came to the conclusion that such an application was
maintainable.

      Dismissing the Special Leave Petition,
                                                                                B
      HELD: I. A landlord, even though not in actual possession at the
time of the possession of the property, can ask for review of the order of
release or allotment. [280G j

     2. A landlord has a right to the property. The section should not
be so construed as to defeat the right to possession of property in
appropriate cases unless the intention of the Legislature is manifest. [280F]   c

      3. Section 16(5)(a) speaks of 'where the landlord or any other
person'. Hence, two categories of persons are contemplated i.e. a land-
lord, or any other person. [280C]
                                                                                D
       4. The requirement of the sub-section, to be in lawful occupation
of t!te building or any part thereof, applies only in case of any other
person claiming to be in lawful occupation and not in case of landlord.
The Section has used the expression ''or'' and so the expression ''or'' is
disjunctive of these two categories to be treated separately. Hence, the
requirement to be in lawful occupation, is not there is case of an appli-       E
cation by the landlord. [280C-D I

      5. The proviso puts an embargo of 7 days in making the at>plica-
tion for review. It can only apply to I.hose who were in lawful occupation
at the time of the making of the original Order. It cannot curtail the
rights of the landlord, as such, it only affects any other person who was       F
in lawful occupation. [280E-G J         ·

      Niren Kumar Das v. The District Judge, Pilibhit & Ors., AIR
      1977 Allahabad 47, approved.

      CIVIL APPELLATE JURISDICTION: Special Leave Petition                      G
(Civil} No. 6577of1988.

      From the Judgment and order dated 27.4.1%8 of the High Court
of Allahabad in C.M.W. No. 3777 of 1987.

      G.L. Sanghi and Manoj Prasad for the Petitioner.                          H
    278         SUPREME COURT REPORTS               [1988] Supp. 3 S.C.R.

          The Jugment of the Court was delivered by
A
        SABY ASA CHI MUKHARJI, J. This application for leave to
  appeal under Article 136 of the Constitution arises from the judgment
  and order of the High Court of Allahabad, dated 27th April, 1988 by
  the judgment under challenge the Division Bench by majority directed
B the Addi. City Magistrate or the Officer at present exercising the
  power of Distt. Magistrate under Rule 10(9) of the U.P. Urban Build-
  ings (Regulation of Letting, Rent & Eviction) Rules 1972 to issue
  notice on all the five landlords mentioned in the petition within one
  week of the filing of the certified copy of the Order, and thereafter to
  make an Order in accordance with law and in the light of the observa-
  tions made in the said Judgment. The petitioner before the High
C Court, who is the petitioner herein also, was directed not to be dispos-
  sessed until disposal of the matter by the High Court.

          This application is by the tenant-petitioner. The premises in
    question had five co-owners, namely, Veeresh Saxena, R.C. Saxena,
D   D.C. Saxena, Smt. Shanti Saxena and B.S. Saxena, respondent No. 3.
    Until January, 1978, Veeresh Saxena was in sole and exclusive actual
    physical possession of the shop and carried on business in it. In
    January, 1978 the present petitioner filed allotment application for the
    shop and he was the sole applicant. On 28.1.1978, Veeresh Saxena
    vacated the shop and sent intimation of vacancy to the Rent Control
E   Officer under the U.P. Urban Buildings (Regulation of Letting &
    Eviction) Act, 1972 (hereinafter called the Act). The Rent Control
    Officer, then, directed him to appear in the allotment proceedings.
    The Inspector reported that Veeresh Saxena was found to be in posses-
    sion of the shop, discontinuing the business and was going to let out
    the shop. On the Inspector's report being pasted on the Notice Board
F   of the Rent Controler Office, neither B.S. Saxena nor the other 3
    co-owners filed any objection. Veeresh Saxena filed an affidavit
    before the Rent Control Officer that he wanted to let out the shop to
    the petitioner. The 3 other co-owners never objected to the peti-
    tioner's tenancy on the allotment order throughout the last 10 years.
    The allotment letter was accordingly passed on 12th February, 1978.
G   The possession was, thereafter, taken up, it was alleged by the
    petitioner in the special leave petition. The petitioner had alleged that
    he had invested more than Rs.2 lakhs in the shop, but B.S. Saxena,
    who was a non-occupant owner, on or about 25th February, 1978 filed
    an application under section 16(5) of the Act, after 25 days of allot-
    ment, for review of the Order. It was alleged by the petitioner that the
H   evidence was overwhelmingly in support of the fact that he had taken
       MADHU GOPAL v. ADDL. DISTI. JUDGE IMUKHARJI, J.]                279

possession of the premises on or about 4/5th February, 1978. The Rent
                                                                                 A
Controller, however, on the said application of B.S. Saxena allowed
the review application and cancelled the allotment order. A revision
against the said order was filed before the learned Judge under section
18 of the Act. The learned Addi. Distt. Judge dismissed the revision.
The petitioner, thereafter, filed a writ petition in the High Court of
Allahabad.                                                                       B

      The question arose about the maintainability of the review appli-
cation under section 16(5) of the Act. It is upon this point that the
matter has been agitated before us. There was a difference of opinion
about the maintainability of the review application at the instance of a
non-occupant owner and the matter was referred to a Bench of 3
learned Judges and by majority the Division Bench came to the                    c
conclusion that such an application was maintainable. The petitioner
herein contends that the High Court was wrong in the view it took on
the construction of Section 16(5)(b) of the Act.

     The relevant provisions of the said sub-section read as follow:             D

           "(5)(a) Where the landlord or any other person claiming
           to be lawful occupant of the building or any part thereof
           comprised in the allotment or release order satisfies the
           District Magistrate that such order was not made in accor-
           dance with clause (a) or clause (b), as the case may be, of           E
           sub-section ( 1), the District Magistrate may review the
           order:

           Provided that no application under this clause shall be
           entertained later than seven days after the eviction of such
           person.                                                               F

           (b) Where the District Magistrate on review under this
           sub-section sets aside or modifies his order of allotment or
           release, he shall put or cause to be put the applicant, if
           already evicted, back into possession of the building, and
           may for that purpose use or cause to be used such force as            G
           may be necessary.

           (6) xx x

           (7) Every order under this section shall subject to any
           order made under sec. 18 be final."                               1   H
    280         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

          The contention is that a landlord who was not in actual physical
A
    possession until making of.the allotment orde or is evicted in pursuant
    thereof, is not competent to make an application for review of the
    allotment order or release order under section 16(5)(a) & (b) of the
    Act. Admittedly, as mentioned hereinbefore, the respondent appli-
    cant was not,in occupation when the Order was made. He was, how-
B   ever, indisputably a landlord. So, the question is whether on the con-
    struction of the section, a landlord who is not in actual physical posses-
    sion at th.e time of the release order, is entitled under the law to apply
    for review of the order. The High Court held that he is entitled.

        We are of the opinion that the High Court was right. Section
C 16(5)(a) speaks of 'where the landlord or any other person'. Hence,
  there are two categories of persons contemplated i.e. a landlord, or
  any other person. The requirement of sub-section, to be in lawful
  occupation of the building or any part thereof, applies only in case of
  any other person claiming to be in lawful occupation and not in case of
  landlord. The Section has used the expression "or" and so the expres-
D Sion "or" is disjunctive of these two categories to be treated sepa-
  rately. Hence, the requirement to be in lawful occupation, is not there
  in case of an application by the landlord.

        Mr. G .L. Sanghi, learned counsel appearing for the tenant, has
  sought to argue that by virtue of the proviso a landlord who was not in
E occuaption, was not entitled to apply. We are unable to accept this.
  The proviso puts an embargo of 7 days. in making the appliction for
  review. It can only apply to those who were in lawful occuaption at the
  time of the making of the original Order. [t cannot curtail the rights of
  the landlord, as such, it only affects any other person who was in
  lawful Occupation. In any event, it is a well-settled principle of con-
F strnction that unless clearly indicated, a proviso would not take away
  substantive rights given by the Section or the sub-section. A landlord
  has a right to the property. The Section should not be so construed as
  to defeat the right to possession of property in appropriate cases unless
  the intention of the Legislature is manifest. We find no such clear
  intention in the facts of this case.            ·
G
         We are, therefore, of the opinion that the High Court came to
   the correct conclusion that a landlord, even though not in actual physi-
   cal possession at the time of the possession of the property, can ask for
   review of the order of release or allotment; It must be borne in mind
 · that this view was also expressed by Mr. Justice N.D. Ojha, as our
H learned brother then was, in his judgment in Niren Kumar Das v. The
       MAOHU GOPAL v. ADDL. DISTI. JUDGE IMUKHAR.Jl, ·J I           281

District Judge, Pilibhit & Ors., AIR 1977 Allahabad 47. We agree with      A
that interpretation.

      In that view of the matter, there is no substance in the conten-
tions urged in the specil leave petition. The application is, therefore,
rejected.
                                                                           B
N.V.K.                                              Petition dismissed.