# Arun Kumar Joseph v. Victor Samuel Mathews and Anr

- **Citation:** (2013) 2 ILRA 1076
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-30
- **Case number:** W.P. No. 59229 of 2010 and W.P. No. 28895 of 2003
- **Bench:** Shiva Kirti Singh, Chief . Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-joseph-v-victor-samuel-mathews-and-anr-42553
- **Pages:** 12

## Headnote

Letting Act 1972-Section 16(1)(b)- Release
Application-by land lord-whether limitation
of 12 years can be applicable-held-'no'-right
of release application-a creation of statutecan not be taken away by putting embargo
of limitation?

Held:Para-21
2 All] Arun Kumar Joseph Vs. Victor Samuel Mathews and Anr.

1077
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.

Case Law discussed:
2009(1)ARC 266; 2009(2) ARC 117; 2008(3)
ARC 359; 2007(3) ARC 633; 2006(2) ARC 287;
AIR 1983 SC 1239; 2006(1)ARC 377; 1996(2)
ARC 474; (2010)3 ADJ 328; 2008(5) ADJ
538(DB); AIR 1974 SC 1924; AIR 1969 SC
1297; Writ-A No. 33751 of 1999

## Text

_Characters 0–39,886 of 40,617. This is a partial read: ask again with offset=39886 for what follows._

1076 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

a certificate from the institution. Payment
of a fixed honoraria is not necessarily an
indicator of full time or part-time
experience. Receipt of emoluments are
not a substitute for experience.

7. A teacher getting a fixed salary at
times is more devoted towards performance
than those who have secured permanent
berths. The experience of a teacher in a
particular subject can be gauged by
performance and the status of involvement in
the institution, and not on some subjective
assumption. However the genuineness of
such experience, like in the present case,
would also have to be assessed by the nature
of engagement. In the present case the
petitioner claims her status of a teacher in a
degree college upon approval by the Vice
Chancellor of a recognized University.

8. So far as her experience as a teacher
in an Intermediate College is concerned, that
experience has also to be examined in
accordance with the modes of appointment
in an unaided Inter College.

9. In both cases payment of honoraria
cannot be the criteria of rejection of
experience. Merely because a teacher has
received lower emoluments, though working
on an equivalent post, cannot be the ground
to reject a candidature. The judgments
referred to hereinabove have to be taken into
account that relies on the Apex Court
decision in the case of Mohd. Altaf and
others Vs. U.P. Public Service Commission
and another reported in 2008(14) SCC 139;
2008 (14) SCC 144; 2008 (14) SCC 146 and
2002 (93) FLR 1208.

10. It is expected that the Board
shall now consider the matter more
objectively.

11. Thus the reasons given in the
impugned order dated 13.3.2013 cannot
be sustained. The impugned order is
quashed.

12. The writ petition is allowed with
a direction to the respondent Board to
consider the experience of the petitioner
in the light of observations made
hereinabove and pass an appropriate order
within six weeks.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2013

BEFORE
THE HON'BLE SHIVA KIRTI SINGH, CHIEF
JUSTICE.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.29272 of 2011,
W.P. No. 59228 of 2010,
W.P. No. 59229 of 2010 and W.P. No.
28895 of 2003

Arun Kumar Joseph ...Petitioner
Versus
Victor Samuel Mathews and Anr.

 ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Jain, Sri Saurabh Jain

Counsel for the Respondents:
Sri Arun Kumar Singh, Sri Rohit Agarwal
Sri Arvind Srivastava, Sri Manoj Misra

U.P. Urban Building(Regulation of Rent and
Letting Act 1972-Section 16(1)(b)- Release
Application-by land lord-whether limitation
of 12 years can be applicable-held-'no'-right
of release application-a creation of statutecan not be taken away by putting embargo
of limitation?

Held:Para-21
2 All] Arun Kumar Joseph Vs. Victor Samuel Mathews and Anr.

1077
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.

Case Law discussed:
2009(1)ARC 266; 2009(2) ARC 117; 2008(3)
ARC 359; 2007(3) ARC 633; 2006(2) ARC 287;
AIR 1983 SC 1239; 2006(1)ARC 377; 1996(2)
ARC 474; (2010)3 ADJ 328; 2008(5) ADJ
538(DB); AIR 1974 SC 1924; AIR 1969 SC
1297; Writ-A No. 33751 of 1999

(Delivered by Hon'ble Shiva Kirti Singh,
Chief Justice)

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 by U.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. PetitionerArun 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
1078 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

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 Act
without 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 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 633 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 and
his own judgment in the case of Anil
Kumar Dixit Vs. Smt. Maya Tripathi
and Another, 2006 (1) ARC 377, 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 (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 (supra). The third
judgment of 1st set was rendered in the
case of Hazi Naseem Ahmad 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 (supra).

7. On the other hand, a perusal of
two judgments in 2nd set discloses that in
the case of Babloo (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
2 All] Arun Kumar Joseph Vs. Victor Samuel Mathews and Anr.

1079
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 (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
Babloo (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 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 (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
1080 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

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 of the
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
2 All] Arun Kumar Joseph Vs. Victor Samuel Mathews and Anr.

1081
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 2A) 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 subsection (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
1082 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

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 (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 appellantMansaram
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
2 All] Arun Kumar Joseph Vs. Victor Samuel Mathews and Anr.

1083
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 (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, 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. 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 (supra) was
decided mainly on the basis of facts and the
1084 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

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
(supra)
dealt
with
entirely
different
provisions of law and the fact that reliance
was placed upon the case of State of Gujarat
(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 (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 (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
2 All] Arun Kumar Joseph Vs. Victor Samuel Mathews and Anr.

1085
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
(supra) noticed the judgment in the case of
Murlidhar Agarwal (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 Act
confers 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."
1086 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

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 (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
2 All] Jahid Khan and Anr. Vs. Suresh Chand Jain & Ors.

1087
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 (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 Act itself. 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.