S.N. Dwivedi, J.@mdashA Division Bench has referred a question for opinion to the Full Bench. After hearing counsel for the parties we have made some amendment in the form of the question. The question, as modified by us, is:
While granting permission u/s 3 of the UP (Temp.) Control of Rent and Eviction Act is the DM bound to consider the need of the tenant for the accommodation?
2. The decision in Parmeshwar Dayal v. Additional Commissioner 1963 AWR 220 is by a Full Bench. The above question was also considered by the Full Bench. Sri Chief Justice Desai and Sri Justice S.D. Singh took the view that the DM is not bound to consider the need of the tenant. Sri Justice Oak did not agree with their view. The majority of the Full Bench answered the above question in the negative.
3. The Division Bench, while hearing the special appeal, felt that the question required reconsideration in the light of the decision of the Supreme Court in
4. Four reasons are mentioned in the opinions of Sri Chief Justice Desai and Sri Justice S.D. Singh in support of their view. Those reasons are:
(1) There is no express or implied provision in the UP (Temp.) Control of Rent and Eviction Act (hereinafter called the Act) requiring the DM to consider the need of the tenant;
(2) The DM, while considering the landlord''s application, acts in an administrative capacity and not as a quasi-judicial authority. He is not bound to hear the parties. He is also not bound to give reasons in support of his order;
(3) The landlord is the owner of the accommodation. Section 3 neither confers any right nor any immunity on the tenant; and
(4) The DM has got absolute discretion in the matter. He may or may not grant permission to the landlord.
All these reasons have lost their vitality on account of the Supreme Court judgment. In Sri Bhagwan''s (supra) case the direct question for consideration was whether the State Government acts as a quasi-judicial authority while making an order u/s 7-F of the Act in a proceeding arising u/s 3(1) of the Act. The Supreme Court held in the affirmative. While discussing the question, the Supreme Court also examined the provisions of Section 3. As regards the nature of the DM''s power u/s 3 the Supreme Court said at page 1771:
Therefore, we are satisfied that the jurisdiction conferred on the DM to deal with the rights of the parties is of such character that principles of natural justice cannot be excluded from the proceedings before him.
At page 1772 the Supreme Court said:
In our opinion, it is impossible to escape the conclusion that these provisions unambiguously suggest that the proceedings before the DM....are quasi-judicial in character.
The Supreme Court also held that Section 3 confers a right on (the tenant. At page 1771 the Supreme Court said:
It is plain that the order which the DM passes u/s 3(2) affects the statutory rights of the tenants.
At page 1772 the Supreme Court said:
The right conferred ion the tenants not to be evicted, exception the specified grounds enumerated by Clauses (a) to (g) of Section 3(1), is a statutory right of great significance and it is this statutory right of which the tenants would be deprived when the landlord obtains the sanction of the DM.
At page 1771 the Supreme Court has indicated that the DM should indicate his reasons why he makes a particular order (?) (under) Section 3(2). The Court has also indicated as to how the DM should deal-with the case. The Court said:
Thus, the provision for a revisional application to the Commissioner also indicates that the DM has to weigh the pros and cons of the master and come to a certain conclusion before he makes the order. The rule naturally imports the requirement that the parties should be allowed to put their aversions before him. The DM cannot reasonably weigh the pros and cons unless both the landlord and the tenant are given an opportunity to place their versions before him.
(Emphasis ours).
5. It is clear from this passage that the DM, while considering the landlord''s application, has to weigh the pros and cons of it. He has to hear the landlord as well as the tenant. It necessarily follows that he has to consider the application of the landlord as well as the version of the tenant. Naturally, if the tenant''s easel is that he needs the accommodation, the DM has to consider that case too. So the Act impliedly casts a duty on the DM to give consideration to the case of both the landlord and the tenant.
6. It will also follow from the decision of the Supreme Court that the DM does not exercise an arbitrary power in granting or refusing permission to the landlord for instituting a suit for the tenant''s ejectment. If he does not hear the landlord or the tenant or does not apply his mind to the case of both of them, his order will not be valid.
7. In view of the decision of the Supreme Court in Sri Bhagwan''s (supra) case our reply to the question formulated at the beginning of our judgment is:
The DM is bound to consider also the need of the tenant for the accommodation, if such a case is set up by him.
8. The record of the appeal will now go back to the Special Appeal Bench for decision of the appeal on merits.
Gangeshwar Pd., J.
9. I agree with the opinion of Dwivedi, J.
M.H. Beg, J.
10. I respectfully concur with the opinion of my learned brother Dwivedi, J. I may point out that our answer is given on the assumption that the case in which the tenant''s need has to be considered is one in which it has been actually advanced as a reason for refusing the landlord permission to sue. It is difficult for us to lay down a general rule applicable to all cases without incurring the risk of performing a legislative function which is not strictly within our domain. A rule which must apply in every case should, properly speaking, be laid down by the legislative organs, when we import into statutory provisions rules of natural justice as conditions for the performance of quasi judicial functions of authorities created by statutes, we purport to do no more than interpret and explain the legislative intent and purpose. This is exactly what their Lordships of the Supreme Court did in L. Shree Bhagwan v. Ram Chand (supra) and I would like to clarify that we are doing nothing more here.
11. The Supreme Court had, in L. Shree Bhagwan''s case(supra) overruled the view, expressed by Desai, C.J. in Parmeshwar Dayal v. Addl. Commissioner, Lucknow (supra), that the DM, in granting the landlord permission to sue his tenant for ejectment, did not deal with any right of the tenant. The Supreme Court made it clear that the lifting of the bar against eviction of tenants imposed by the statute in all cases covered by the Act, except those found in Clauses(a) to (g) of Section 3(1) of the Act, meant that the tenant was being deprived of "a statutory right of great significance". Hence, this could only be done quasi-judicially and on relevant and justifiable grounds. Their lordships of the Supreme Court referred to the provisions and purposes of the UP Control of Rent and Eviction Act to support this view. They held that where a valuable statutory protection was being removed it could not be said that the DM or the Commissioner or the State Government, in dealing with the statutory right or protection of the tenant, was meant to operate purely on the administrative plane without weighing and judicially considering the pros and cons of the questions involving conflicting individual interests raised by the two sides. The needs of the tenant were not specifically mentioned by the Supreme Court. Nevertheless, as the tenant was entitled to be heard and to place his case against deprivation of the protection by the authority concerned, it could be assumed that the tenant would naturally and ordinarily put forward his needs before the authorities. It would be incumbent upon the authorities to consider the needs of the tenant whenever these are put forward as a defence against the case of the landlord seeking permission to sue for eviction on grounds outside Clauses (a) to (g) of Section 3(1) of the Act because they are relevant.
12. There may be cases in which the tenant''s need may be quite an unimportant consideration for deciding the question whether the landlord should be permitted to evict him. For example, the landlord may seek permission on the ground that the accommodation in the occupation of a tenant is of such a character that it could be utilised much better by demolishing the construction on it and putting up another building which will meet the needs of a number of tenants. In such a case, the landlord would be asking for permission to render a social service which will obviously outweigh the needs of an individual tenant. Or, the accommodation in the possession of a tenant may be unsafe for residence and permission may be required so that it is reconstructed. In such a case, the need for safety, including that of the tenant himself, may outweigh the tenant''s need for the accommodation. Again, in one locality there may be sufficient accommodation available for letting to enable an authority to give the landlord permission to sue much more readily than in another area where alternative accommodation is very scarce. As between two equally pressing claims equity may lean in favour of the landlord.
13. The view expressed in Parmeshwar Dayal''s case (supra) and in Ram Gopal v. Ram Kumar 1962 AWR 442 that all the circumstances under which the DM could be expected to act u/s 3(1) of the Act cannot be exhaustively enumerated, is not affected by any decision of Supreme Court and it must be clearly understood that we are not only not departing from this view but respectfully accept it as correct.
14. The result, therefore, is that no hard and fast rule can be laid down about the weight to be given to the need of the tenant. Indeed, there may be cases in which the tenant himself may not consider it worthwhile to set up his own need as a defence but may only challenge the genuineness of the ground put forward by the landlord for seeking permission to sue. The fact that permission is sought by the landlord to sue shows that the tenant is unwilling to vacate and that the landlord is setting up a ground which will be resisted by the tenant. Prima facie, there is a lis. But, the tenant may realise that his case on the basis of his need is not so good as to be set up and that it is a better defence to try to expose the hollowness of the ground advanced by the landlord. The necessity to consider the need of the tenant cannot, in my opinion, be placed on a higher footing than the need to consider the case actually set up by a party in ordinary litigation governed by the law of pleadings. In other words, the duty to consider the needs of the tenant depends for its performance on the fact that the need should have been urged by the tenant himself as a defence and our answer that the tenant''s need must be considered whenever set up does not lay down what weight it should be given in a particular case. The weight to be attached to the need of the tenant in a particular case must naturally depend upon the particular facts and circumstances of that case. We only hold that the need of the tenant is a very relevant circumstance and the duty to take it into account is only a part of the duty to consider all relevant facts and circumstances.
15. Another respect in which the Supreme Court, in L. Shree Bhagwan''s case (supra), overrides the view taken by Desai, C.J. in Parmeshwar Dayal''s case (supra) is that the power to grant permission to sue was held by the Supreme Court to be not untrammelled. It was exercisable only in a manner which indicated that it had been exercised on justifiable grounds. It followed from the Supreme Court''s view that reasons should be indicated by the authority acting under either Section 3(1) or Section 3(3) or 7-F of the Act. and this is precisely the view taken by another recent pull Bench of this Court in Smt. Saraswati Devi v. State of UP--Civil Misc. Writ No. 179 of 1966 connected with Civil Misc. Writ No. 4644 of 1966, decided on 14-5-1968(?) (24-5-1968) (since reported in 1968 AWR 524). On the other hand, the view taken by Desai, C.J. in Parmeshwar Dayal''s case (supra), was that Section 3(1) of the Act gave "unfettered and unguided powers", because it did not contain any indication of the grounds upon which the power was to be exercised. It naturally followed from the view taken by Desai, C.J. that no reasons need be given by the authority which exercises the power to grant or to refuse the landlord''s application for permission to sue.
16. With very great respect, I may observe that the view; taken by Desai, C.J. widened the scope of the power conferred by Section 3(1) of the Act so much that its constitutionality could be questioned. If a power is so wide that it can be used to discriminate between citizen and citizen, placed in identical positions, without any effective means of checking possible abuse of that power, the provision conferring the power may be unconstitutional. There is, however, a presumption that the legislature does not intend to violate the constitution. The presumption of constitutionality is strong enough to enable courts to look outside the provision conferring the power for possible checks on the exercise of power which may have been intended by the legislature. The Supreme Court found these checks in the very nature of the function to be performed u/s 3(1) and in the purpose and policy of the Act and referred to the Preamble for this reason. It subjected the power conferred upon the authority which could grant permission to sue to the rules of natural justice and reason in the light of the put-poses of the enactment. The Supreme Court view thus saves the provisions of Section 3(1) of the Act from the vice of unconstitutionality.
17. The view taken by Desai, C.J. and S.D. Singh, J. was based upon the assumption that the authorities entrusted with the power of granting permission to sue would act reasonably even though the power was "unfettered and unguided." It was based on the presumption that the authorities invested with wide discretion will not-abuse it. However, the Supreme Court having interpreted the scope and nature of powers u/s 3(1) of the Act has made it clear now that the power contained therein was not unbridled in law. It was a power to be exercised quasi judicially and on relevant facts and circumstances disclosed by reasoned orders. It follows that every relevant circumstance placed before the authorities must fie considered by them and in order to be able to do so, they must afford a reasonable opportunity to each side to place its case. Our answer that the authorities are bound to consider the need of the tenant rests on the assumption that the tenant will put forward his need for consideration before these authorities when he is given an opportunity to be heard.
18. I find myself in complete agreement with my learned brother.
By The Court
19. Our answer to the question is:
The District Magistrate is bound to consider also the need of the tenant for the accommodation, if such a case is set up by him.
The record of the case will now go back to the Special Appeal Bench for decision of the appeal on merits.
