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TMI Blog1975 (2) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the said Company had taken another shop on rent sometime in the year 1961 it was about to vacate the shop in the building of the appellant. He, therefore, filed an application on 7-11-1961 before the Rent Control and Eviction Officer (for brevity, Rent Controller) with a copy to the District Magistrate, Kanpur under Rule 6 of the Control of Rent and Eviction Rules, 1949 framed under section 17 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947-hereinafter called respectively the Rules and the Act praying for the release of the shop in his favour on the ground that he required the accommodation for his own use for establishing a business for his son. On 2-5-1962, respondent no. 3 made an application under section 7(2) of the Act for allotment, of the accommodation to him. There were four more applicants under section 7(2). The shop was actually vacated by Bata Shoe Company on 15-8-1962. On 16-8-1962 intimation was given by the appellant to the Rent Controller about the vacancy of the shop in accordance with section 7(1). It may be stated here that the Additional District Magistrate, respondent no. I as also the Rent Controller, respondent no. 2 had been authorised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Court is pending. The appellant filed an application for review on 17-11-1962 before the Rent Controller asking him to review his ex-parte order dated 15-11-1962 made under section 7A of the Act chiefly on two grounds viz. (1) that no notice was served upon the appellant; (2) that the third respondent had obtained the order fraudulently by suppressing the fact of compromise entered in Suit No.132/1962. The Rent Controller refused to review his order and dismissed the application on 8-1-1963. The appellant on the same date i.e. on 8-1-1963 filed a petition in the Allahabad High Court under Article 226 of the Constitution to challenge the various orders of allotment and delivery of possession made by respondents I and 2 from time to time. The Writ Petition was dismissed by a learned single Judge on 7-5-1963. Special. Appeal No.254/1963 was dismissed by a Bench of the Allahabad High Court on 3-2-1964. The present appeal was preferred in this Court on grant of certificate by the High Court. The appellant had urged five points before the High Court in the special appeal. Mr. S. T. Desai appearing for him in this Court pressed only 3 points for our consideration in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment on behalf of this Court in the case of Murlidhar Aggarwal Another v. State of Uttar Pradesh and others(A.I.R. 1974 S.C. 1924) is based on Public Policy. it is intended. to protect the weaker section of the community in general by granting equality of bargaining power. The protection is based on public policy. Similarly, the Scheme of the Act as per the provisions contained in Section 7 and 7A and Rules 3 to 6 is to curtail the right and freedom of the landlord to a large extent in the matter of letting out of accommodation. Section 7 provides for control on letting; sub-section (1) of which casts a duty on the landlord to give notice in writing of the vacancy of the accommodation to the District Magistrate. Under subsection (2) the District Magistrate may by general or special order require a landlord to let or not to let to any person any accomodation which has fallen vacant or is about to fall vacant. The provision of sub-section (2) has to be read in conjunction with the relevant rules. Section 7A empowers the District Magistrate to take action against the unauthorised occupants by directing their eviction and in case of necessity even with force. Proviso to sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of 30 days by ignoring the nomination made by the landlord. In such a situation and in the context of the Rules it is difficult to hold that the period fixed for the making of an allotment order in Rule 3 is mandatory in the sense of resulting in the nullification of the order of the District Magistrate if made after the expiry of the period. Without resorting to the well-known expressions of the requirement of the law being mandatory or directory we would rest our view oil the plain reading of the language of the Rules. The District Magistrate. as we have said above, has got to make the order of allotment within 30 days of the receipt of the intimation sent by the landlord under section 7(1)(a) of the Act. He has, at the same time, to give notice of his order of allotment to the, landlord. If the landlord receives no notice from the District Magistrate within 30 days, which as a matter of construction under Rule 4 must mean shortly after the expiry of 30 days of the receipt by the District Magistrate of the intimation given by the landlord under section 7(1)(a), of an order of allotment having been made within that period, he gets a right to nominate a tenant. Ordinarily and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful and against the Public Policy of the Act under the Rules. The four terms of the compromise are, as under : (a) That it is admitted by the defendant that at the expiry of 30 days from the date of intimation, the shop in dispute automatically stood released to the plaintiff and the allotment order dated 18th September, 1962 was not at all effective vis-a-vis the rights of the plaintiff as a landlord to use the said premises. (b) That the defandant has no objection if the plaintiff continues to utilize the accommodations for his own business or a business of his son whether himself or in partnership with any person and till such time as the plaintiff and his son utilize the accommodation in this manner, the defendant will not be entitled to enforce, his allotment order against him. (c) That the plaintiff has agreed that if at any time he wants to discontinue, the business established by him in the said shop and wants to let out the shop to any person, he will do so in favour of the defendant and unless he refuses to take the lease on reasonable terms, the plaintiff will not let out the shop to any third party. (d) That the shop is already in possession of the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been the view of the High Court in the Special Appeal. But the order was made by him in a quasi-judicial manner after hearing the parties concerned and after fully applying his mind. He, being a delegate of the District Magistrate, was competent to make the order of allotment. So was the Rent Controller. But the latter merely issued the formal order made by the former. It was not a case where the authority competent to make the order mechanically did it on the direction or in pursuance of an order of a different authority not competent to pass the order. In our judgment, therefore, the order of allotment allotting the accommodation to respondent no. 3 was not bad. Nor had the order made by the Rent Controller under section 7A of the Act any infirmity. in the result the appeal fails and is dismissed. No orders as to cost. BHAGWATI, J. I have had the, advantage of reading the judgment of brother Untwalia, J. He has discussed the three contentions urged by Mr. S. T. Desai on behalf of the appellant and rejected them. Whilst agreeing with the view taken by him, in regard to the first and the third contentions, I find myself unable to subscribe to the view taken by him in reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the landlord. This Rule obviously contemplates that the District Magistrate must make an order requiring the landlord to let the accommodation to a specified person within thirty days of the receipt of the intimation of vacancy from the landlord. But does it also carry with it by necessary implication a negative prohibition that if the District Magistrate does not make such an order within the stipulated time, he shall be precluded from making such order thereafter. We do not think so. The only consequence ,of the District Magistrate not making an order of allotment within the period of thirty days is that set out in Rule 4. It confers. a right on the landlord to nominate a tenant and where the landlord makes such a nomination, the District Magistrate is bound to allot the accommodation to such nominee unless for reasons to be recorded in writing he forthwith allots the accommodation to other persons . It is significant to note that Rule 4 does not provide that if the District Magistrate, fails. to make an order of allotment within the period of thirty days, the landlord may occupy the accommodation himself The only right which enures to the landlord in such a case is to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent could not, therefore, be assailed on the ground that it was made after the expiration of thirty days from the receipt of intimation of vacancy from the appellant. I would now turn to examine the, third contention on which I find myself in disagreement with my learned brother Untwalia, J. The facts which bear on this contention are fully set out in the judgment of my learned brother Untwalia, J. and I need not reiterate them. It would be enough for my purpose to, state that Civil Suit No. 132 of 1962 was filed by the appellant against the 3rd respondent in the Court of the First Civil Judge, Kanpur challenging the validity of the order of allotment made by the District Magistrate in favour of the 3rd respondent. Immediately on filing the suit, the appellant obtained an injunction restraining the 3rd respondent from taking any steps to enforce the order of allotment or to interfere with the possession of the appellant in respect of the shop. The result was that the 3rd respondent was prevented from obtaining possession of the shop from the appellant and he could not even move the District Magistrate for evicting the appellant and handing over possession of the shop to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shop for his personal occupation was recognized vis-a-vis the 3rd respondent, but the 3rd respondent did not disclose this fact in the application, nor did he make any reference in it to the consent decree. There was a dispute between the parties in regard to the service of the notice of the application on the appellant, but it was found by the Rent Control and Eviction Officer, as also by the High Court in the writ petition, out of ,which the present appeal has arisen, that the appellant refused to accept the notice of the application and hence we must proceed on the, basis that the notice of the application was duly served on the appellant. The appellant did not appear at the hearing of the application and proceeding ex parte, the Rent Control and Eviction Officer passed an order dated 15th November, 1962 directing that the appellant be evicted from the shop and the 3rd respondent be put in possession of the same. Though this order was not contemplated to be executed before 18th November, 1962, the appellant was. forcibly evicted from, the shop in pursuance of the order on 16th November, 1962 and possession of the shop was immediately on the same day handed over to the 3rd re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been obtained by the parties in the suit was a very material fact which could have considerable bearing on the question whether it was inexpedient to make an order under s. 7A. The 3rd respondent having himself agreed with the appellant and obtained consent decree in the suit, that the order of allotment in his favour was void and ineffective and the appellant could occupy the shop for himself, there can be no doubt that this piece of conduct, unless satisfactorily explained, was bound to have its impact on the exercise of discretion by the District Magistrate. The District Magistrate would certainly ask himself : why should I exercise my discretion in favour of a person who has himself conceded in the consent decree obtained from the Civil Court that the order of allotment in his favour is invalid and he has no objection to landlord occupying the accommodation ? Such conduct on the part of the 3rd respondent could be inspired only by one of two reasons. It may be that the 3rd respondent submitted to the consent decree because the wanted to get rid of the injunction issued against him by the Civil Court. So long as the injunction stood, he could not obtain possession even by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, a contract. if the compromise on which the consent decree is based is induced by fraud, mistake, undue influence or any other ground which would avoid a contract, the consent decree would be liable to be set aside but that would have to be done by the aggrieved party by filing a suit. So long as the consent decree is not set aside in such suit, it would be binding on the parties as such as a decree in invitum and it would not be open to either party to disregard or disobey it. Similarly, if the compromise is unlawful, Order XXIII, rule 3 prohibits the court from passing a decree in accordance with it and even if such decree is passed because neither party raises an objection, it would be void. But the question is : can a party to a litigation be permitted to decide for himself that the consent decree is void and on that view ignore it altogether as if it did not exist? I do not think so. Whether the compromise is unlawful so as to render the consent decree void must be left to the determination of the appropriate authority before whom the question may arise and it cannot be allowed to be determined by a party himself according to his personal judgment. Such a question may rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on this ground alone I would not be inclined to quash and set aside the order made by the Rent Control and Eviction Officer as delegate of the District Magistrate under S. 7A because, as pointed out by my learned brother Untwalia, J., in his judgment, and there I agree with him, that the consent decree was void by reason of the compromise being against the public policy of the law and hence there would be no point in interfering with the order of the Rent Control and Eviction Officer on this ground. There is, however, one other aspect of this question which requires consideration. It cannot be seriously disputed, and I have already referred to the aspect a little earlier, that the District Magistrate had a discretion under s. 7A not to enforce an order of allotment, if he thought that, on the facts and circumstances of the case, it was inexpedient to do so. Even if the compromise was unlawful and the consent decree was on that account void, the very fact of the 3rd respondent having submitted to the consent decree, declaring the order of allotment to be, invalid and recognising the right of the appellant to occupy the shop for himself vis-a-vis the 3rd respondent, was a highl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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