Muthugopal v. Assistant Collector Kozhikode — 1962 DIGILAW 36 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. In this writ petition, Mr. V. R. Krishna Iyer, learned counsel for the petitioner, seeks to have two communications issued by the first respondent, namely, the Assistant Collector, Kozhikode, Exts. P. 1 and P.1(a), quashed. Ext. P. 1 is an order under which the first respondent allots the building in question under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1959, to the second respondent and Ext. P.1(a) again is a further communication of the same date as Ext. P. 1 under which it is stated by the first respondent that the building in question is required by an officer of the State Government/Central Government and that it is accordingly taken over again under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1959. These are the two orders that are sought to be quashed in these proceedings. 2. Before I advert to the various aspects that have been presented before me by Mr. V. R. Krishna Iyer, learned counsel for the petitioner, Mr. K. V. Surianarayana Iyer, learned counsel for the contesting second respondent, and the learned Government Pleader appearing for the Accommodation Controller, it is desirable to set out the circumstances under which this writ petition has come to be filed. 3. The petitioner as owner of shop No. 10/321 situated in Kozhikode Town appears to have taken steps to get vacant possession of the building under the provisions of the said enactment and there is controversy that actually vacant possession was got on 23-1-1961. 4. The petitioner by his communication dated 3-2-1961 informs the Accommodation Controller, Assistant Collector Kozhikode, the first respondent, that the particular building is vacant as its occupant has been evicted and delivery has been given to his agent on 23-1-1961 as per orders of court. There is a reference to the court proceedings there. Further the petitioner says that the premises consist of two shop rooms and they are known by the name Valiaveedu Paramba, and are situated in Palayam Road, Kozhikode Town. The rent of the building is also stated to be Rs. 30/- per month. There is a further averment to the effect that the building is a non residential electrified building having a plinth area of 10x6 feet. The half-yearly monthly tax is also stated to be Rs. 41.22. The said communication contains no more than this. 5. The rent of the building is also stated to be Rs. 30/- per month. There is a further averment to the effect that the building is a non residential electrified building having a plinth area of 10x6 feet. The half-yearly monthly tax is also stated to be Rs. 41.22. The said communication contains no more than this. 5. It will be seen that some of the residents of that particular area on coming to know that this particular property is being got vacated by the petitioner appear to have filed certain applications before the first respondent for allotment of the property in their favour under the provisions of the Act. From the records that have been filed before me on behalf of the first respondent by the learned Government Pleader it is seen that apart from the application filed by the second respondent himself there were five other similar applications for allotment of the property in question. 6. The second respondent himself has filed an application dated 23-1-61 and that is filed as Ext. R1 in these proceedings. I will have to advert to the contents of Ext. R1 a little later when I consider a very serious attack that has been levelled against the order of allotment in his favour even assuming that the first respondent has got jurisdiction to make an allotment to a non official under the provisions of the Act. Excepting to take note of the fact that the second respondent along with certain others had filed applications for allotment, it is not necessary to advert to more facts at the present stage. 7. It will be seen that under Ext. P. 1 dated 4-2-1961 the first respondent states that the premises occupied by one Seetharama Rao has fallen vacant on 23-1-1961 and is allotted to the second respondent, Stationer, Palayam Road, Kozhikode for his occupation. The rent of the building is fixed at Rs. 30/- and the landlord, namely, the petitioner, is stated to be entitled to the above rent from 24-1-1961 on which date the intimation of vacancy was received by the Accommodation Controller. There is a further direction in Ext. P. 1 to the effect that the owner of the house will deliver the key to the allottee immediately and that the allottee is to surrender it to the office when he vacates the house in future. There is a further direction in Ext. P. 1 to the effect that the owner of the house will deliver the key to the allottee immediately and that the allottee is to surrender it to the office when he vacates the house in future. A copy of this communication is sent by the officer to the petitioner's address at Tanjore by registered post. 8. The order refers to the intimation of vacancy stated to have been given by the petitioner on 23-1-1961 and it also refers to the petition received from the second respondent dated 23-1-1961. The petition stated to have been received from the second respondent must obviously be Ext. R1 and so far as the intimation of vacancy given by the petitioner is concerned, though the date is given as 23-1-1961 probably the correct date must be, as is seen from the records, 3-2-1961. I have already adverted to the actual terms of the intimation contained in the communication dated 3-2-1961 sent by the petitioner. 9. On the same date when Ext. P. 1 was passed allotting the property in question to the second respondent, the Assistant Collector and Accommodation Controller, the first respondent, herein, passed another order under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1959, stating that these identical premises are required by an officer of the State Government/Central Government and that is accordingly taken over under S.4(2) of the Act. 10. These two communications were admittedly sent by the Accommodation Controller to the petitioner herein. 11. Later the petitioner appears to have sent an application on 11-2-1961. That again is seen from the records produced on behalf of the first respondent by the learned Government Pleader. That is a communication sent by the petitioner to the effect that the property in question is in a state of disrepair and that he intends to effect repairs and also effect reconstruction to the said premises and therefore he makes a request to the Accommodation Controller that the allotment of the shops in favour of the second respondent herein as per proceedings of the Assistant Collector dated 4-2-1961 referred to in the said letter may be cancelled as he does not propose to let out the shops for the present. Admittedly, no reply has been given by the Assistant Collector to this request made by the petitioner and no doubt there is an explanation given in the counter - affidavit filed by the then Assistant Collector to the effect that as he was satisfied that no order making the allotment could be withdrawn and in view of the fact that this request by the petitioner for purposes of making repairs was made long afterwards, namely, on 11-2-1961, he did not think it necessary either to send a reply or to take further action on the basis of that communication. 12. The original counter affidavit in this matter on behalf of the first respondent was filed by the successor-in-office of the officer who made the allotment in question. In the said counter affidavit filed on 13-9-1961 it is admitted that a notice taking over the building under S.4(3) for an officer of State Government/Central Government was issued on 4-2-1961. That has a reference to Ext. P. 1 (a) and it is also admitted that on the same date another notice was issued by the first respondent allotting the premises to the second respondent under the provisions of the statute. That again has reference to Ext. P. 1. But it is stated that the notice regarding taking over the building for the purpose of an officer of the State Government/Central Government has been sent by mistake because admittedly there was no request on behalf of any such officer for allotment of the premises in question. The counter affidavit further proceeds to say that in the nature and situation of the property no such request also could have been made by any officer. Therefore, it is mentioned that the only effective notice of allotment is the one evidenced by Ext. P. 1, that is, making an allotment in favour of the second respondent and that alone has to be considered as proper and valid. 13. In the original counter affidavit it is further stated that the intimation of vacancy was given on 24-1-1960. The same date is again repeated in the further affidavit that has been filed by the officer who made the allotment itself. Evidently those dates are given by mistake because the actual date of intimation as disclosed from the records is 3-2-1961. 14. The same date is again repeated in the further affidavit that has been filed by the officer who made the allotment itself. Evidently those dates are given by mistake because the actual date of intimation as disclosed from the records is 3-2-1961. 14. In the counter affidavit it is further mentioned that the petitioner has not at any time made any request that he wanted to effect repairs and that he did not want to allot the property to anybody and there are also certain averments of fact denying the allegations in the affidavit to the effect that the Accommodation Controller promised to enquire into the claim made by the petitioner for purposes of repairs. It is not necessary for me to go into that aspect at present. 15. But the Assistant Collector takes up the position that he Is entitled to function as the Accommodation Controller for Calicut and that he has got jurisdiction to make the particular allotment in question also. There is also a further statement to the effect that the order of allotment has been made by the officer in question after considering the various claims of the parties and it has not been made in a mechanical or routine manner. The attack that is made on Rule 24(7) of the Kerala Buildings (Lease and Rent Control) Rules has not been controverted. It is further stated that the order of allotment is not vitiated by any grounds of attack levelled against it and ultimately it is stated that there is no merit in the Original Petition itself. 16. When this writ petition came before me for hearing on a prior occasion I felt that there were some facts on which there was keen controversy as between the parties and, therefore, I thought it desirable that regarding those circumstances under which the allotment was made the officer who made the actual order of allotment should swear to the necessary facts and accordingly the learned Government Pleader has now filed a fresh affidavit on 22-1-1962 by the then Assistant Collector who made the actual order of allotment under Ext. P. 1. 17. Substantially the averments in this affidavit filed on 22-1-1962 and those contained in the counter - affidavit filed on 13-9-1961 are more or less identical. P. 1. 17. Substantially the averments in this affidavit filed on 22-1-1962 and those contained in the counter - affidavit filed on 13-9-1961 are more or less identical. But so far as the personal knowledge of the officer is concerned, greater regard will have to be given to the statements contained in the later affidavit filed on 22-1-1962. 18. In the said affidavit it is again admitted that there were two notices issued on 4-2-1961, one taking over the premises for the purpose of an officer of the State Government/Central Government, and another order allotting the property in favour of the second respondent. Here again, the officer states that the notice, Ext. P. 1(a) has been sent more or less by mistake by oversight by the officer and, therefore, effect will have to be given only to the order allotting the property to the second respondent, namely, Ext. P. 1. 19. The officer further proceeds to say that after receipt of the petitioner's intimation about the vacancy the officer proceeded on the basis that the property will have to be allotted to the parties mentioned under the Act and it is also stated that at no time before the allotment was any intimation given by the petitioner that he does not want the premises to be allotted and that he wanted to effect any repairs to this property. 20. Later on, the officer further states that he had jurisdiction to function as Accommodation Controller at the material time and, therefore, he had full powers to pass the order of allotment under Ext. P. 1. 21. Regarding the particular circumstances under which an allotment has been made in favour of the second respondent it is categorically mentioned in paragraph 7 of the counter affidavit filed on 22-1-1962 that the allotment to the second respondent is completely within the purview of the rules framed under the Act in question. The Officer categorically denies the suggestion that the order is a mechanical order passed without adverting to the actual claims of the parties and it is further stated: "The second respondent is a non official dealer in articles of stationary about whose use to society I was satisfied at the time when I made the allotment order. The Officer categorically denies the suggestion that the order is a mechanical order passed without adverting to the actual claims of the parties and it is further stated: "The second respondent is a non official dealer in articles of stationary about whose use to society I was satisfied at the time when I made the allotment order. The allotment order was in no way mala fide but was made in good faith." Again the contention taken on behalf of the petitioner regarding the vires of Rule 24(7) of the Kerala Buildings (Lease and Rent Control) Rules is controverted. - Ultimately the officer again prays for the dismissal of the writ petition. 22. In the meanwhile it will be seen that the second respondent also had filed a counter affidavit in these proceedings. The major and substantial part of the counter affidavit of the second respondent deals with the claim that he has got a right to a 1/6th share in this property. In my view that consideration is absolutely irrelevant and need not at all be considered for the purpose of this O. P. This court or the Accommodation Controller has nothing to do with the so-called disputes between the persons who appear to belong to the same family. The second respondent emphasises that he is a coowner of the property in question. This allegation may have some bearing when I consider the validity of the allotment in the particular circumstances of this case made in favour of the second respondent. 23. The second respondent later on traverses the other allegations of the petitioner that there was any necessity for effecting any repairs to this building. 24. Then again he refers to the application that he had filed for allotment of this property and that has been marked as Ext. P. 1. I will revert to Ext. P. 1 a little later. According to the second respondent, Exts, P. 1 and P. l(a) form part of one transaction and have to be considered as such and again there are certain controversies on facts because according to the petitioner the property was not actually put in possession of the second respondent and the latter has trespassed into the property by breaking it open forcibly. These allegations are very seriously controverted by the second respondent. These allegations are very seriously controverted by the second respondent. Ultimately the second respondent says that the acts done by the Accommodation Controller are purely administrative acts and there has been no infringement whatsoever of any of the rights of the petitioner and, therefore, this court should not interfere with the order under attack. 25. But he makes a very significant statement in the counter affidavit to the effect that he has been doing stationary business in Calicut Bazaar for the last 30 years, catering to the needs of students of almost all educational institutions in Calicut, several public offices, such as the Collector's Office, Calicut Municipal Office, District Board and of other officials and non officials. It must be mentioned at this stage that there is absolutely no whisper in the actual application filed by the second respondent about any of these matters, when the latter asked for an allotment of the property in his favour. Then he says that the service rendered by him in the said capacity as a stationary dealer is sufficiently important and affords a very good and valid reason for the allotment of the property in his favour and therefore the service rendered by the second respondent to the public are of such great importance that there was nothing wrong in the allotment of the property being made in his favour. More or less I should say these statements which are not contained in the original counter affidavit filed on behalf of the first respondent on 13-9-1959 have been incorporated by the Assistant Collector when he files the later counter - affidavit on 22-1-62. As I have referred to earlier, in the later counter affidavit these statements which find a place in the counter affidavit filed on behalf of the second respondent at an earlier date have been more or less incorporated as the reasons which prompted the first respondent in making the allotment in favour of the second respondent. 26. Therefore, the orders that are under attack, namely, Exts. P. 1 and P. 1(a), relate to the action taken by the first respondent in respect of the property in dispute. The validity or otherwise of Ext. 26. Therefore, the orders that are under attack, namely, Exts. P. 1 and P. 1(a), relate to the action taken by the first respondent in respect of the property in dispute. The validity or otherwise of Ext. P. l(a) probably does not arise because the Assistant Collector in both the affidavits filed in this Court has categorically taken up the position that there was absolutely no necessity for taking over the building under S.4(3) for an officer of the State Government/Central Government and therefore Ext. P. 1(a) can be ignored. Then the question will be as to the validity of the allotment made under Ext. P. 1 in favour of the second respondent. 27. On behalf of the petitioner, Mr. V. R. Krishna Iyer, learned counsel, has raised four contentions : (1) that the first respondent, the Assistant Collector of Kozhikode was not the Accommodation Controller at the time when the order of allotment under Ext. P. 1 was passed and therefore he had no jurisdiction to make the allotment in question; (2) that S.4(3) contemplates prescribing by rules regarding the class of non officials having regard to their importance to the society for purposes of allotment. Admittedly no rule has been framed by the State Government under S.32 of the Act regarding the class of non officials who should be shown preference in the matter of allotment of accommodation. Therefore the learned counsel urged that the Accommodation Controller has no jurisdiction to make an allotment to a non official like the second respondent under the provisions of the Act. The third contention of Mr. V. R. Krishna Iyer is that Rule 24(7) framed under the Act is invalid and ultra vires inasmuch as it gives unqualified and uncontrolled power to the Accommodation Controller to decide for himself as to the non official to whom an allotment can be made. Therefore, the learned counsel urged that Rule 24(7) will have to be struck down as ultra vires. The last contention of Mr. V. R. Krishna Iyer is that in any event in this case the actual order of allotment made by the Accommodation Controller is arbitrary and unjust and has been done in flagrant violation of the provisions of the Statute and the Rules. The last contention of Mr. V. R. Krishna Iyer is that in any event in this case the actual order of allotment made by the Accommodation Controller is arbitrary and unjust and has been done in flagrant violation of the provisions of the Statute and the Rules. That is, according to the learned counsel the fact that on the same date two orders are passed, one taking over the property for purpose of an official of the State Government/Central Government which now, it is admitted, does not exist, and another order allotting the property to the second respondent, clearly shows that the officer has really not considered the nature of the jurisdiction that he was called upon to exercise under the provisions of the Act. The learned counsel further urged that in view of the various matters that have been pressed before me it will be seen that the Accommodation Controller has not certainly considered the very essential question to be decided by him, namely, whether the petitioner belongs to that class of non officials who can be considered to be doing very important service to the society. 28. I will consider these contentions seriatim. According to Mr. V. R, Krishna Iyer, under the provisions of S.3 (2) of the Act the State Government has issued a notification on 1st July 1959 appointing the various persons mentioned therein to be Accommodation Controllers for the respective areas referred to in the schedule. Therefore, according to Mr. V. R. Krishna Iyer, whatever may have been the position of the first respondent as Assistant Collector prior to the issue of the notification on 1st July 1959, the Assistant Collectors have no further jurisdiction to function as Accommodation Controllers when a different set of persons has been appointed as Accommodation Controllers under the notification dated 1st July 1959. 29. Mr. V. R. Krishna Iyer, also referred me to certain provisions in the statute, in particular to S.4 (1), (2), (5) and (6) which make it obligatory on the part of a tenant and a landlord to give intimation about a vacancy that has occurred in respect of a particular building. According to Mr. 29. Mr. V. R. Krishna Iyer, also referred me to certain provisions in the statute, in particular to S.4 (1), (2), (5) and (6) which make it obligatory on the part of a tenant and a landlord to give intimation about a vacancy that has occurred in respect of a particular building. According to Mr. V. R. Krishna Iyer, if under those provisions there are two Accommodation Controllers functioning for the same area it would lead to rather incongruous results, namely, a landlord intimating a vacancy to one Accommodation Controller and the tenant intimating the vacancy of the same building to another and both the officers passing conflicting orders regarding the allottment to be made. In my view, all these considerations do not at all come into the picture because as pointed out by Mr. Surianarayana Iyer, the learned counsel for the second respondent, and the learned Government Pleader appearing for the first respondent, the question of jurisdiction of the Assistant Collector to function as Accommodation Controller is to be decided by virtue of the provisions of S.36 of the Act as it stands ultimately amended by Kerala Act XXIX of 1961. 30. There is no controversy that during the continuance of the ordinance that preceded the statute in question the Assistant Collectors like the first respondent were admittedly functioning as Accommodation Controllers in the areas and under S.36 of the Act which followed the ordinance it is clearly seen under sub-section 3 that Accommodation Controllers, Rent Control Courts, Appellate and other authorities under the Ordinance shall be taken to be Accommodation Controllers, Rent Control Courts, Appellate Authorities respectively under this Act. Considerable reliance has been placed by both Mr. Surianarayana Iyer and the learned Government Pleader on the actual notification that has also been issued under the Act by the State Government constituting the Rent Controllers under S.3(3). That is, that notification, as I mentioned earlier, is the one issued on 1st July 1959. Both the learned counsel have stressed upon the language of the notification to the effect that the Government appoint the various other persons also as Accommodation Controllers for the respective areas under the notification dated 1st July 1959. 31. That is, that notification, as I mentioned earlier, is the one issued on 1st July 1959. Both the learned counsel have stressed upon the language of the notification to the effect that the Government appoint the various other persons also as Accommodation Controllers for the respective areas under the notification dated 1st July 1959. 31. Both the learned counsel for the respondents referred to the notification issued by the State Government which has constituted the Appellate Authorities wherein it has been categorically stated that the said appointment of those officers as appellate authorities is in supercession of all previous notifications on the subject and that notification is dated 1st July 1959. On the date on which the appointment of Accommodation Controllers has been made namely, 1st July 1959, there are two notifications issued by the State Government. Mr. Surianarayana Iyer has also drawn my attention to the notification issued on 14th July 1959 by the State Government constituting Rent Controllers' Courts under the Act. There again, it is stated in the notification that under sub-section 1 of S.3 and in supercession of all previous notifications on the subject the Government appoint the various persons mentioned therein as Rent Control Courts. This notification regarding the constitution of Rent Control Courts issued on 14th July 1959 is almost identical with the nature of the notification issued on 18th July 1959 by the State Government. While the notification relating to the appointment of appellate authorities and Rent Control Courts clearly shows that these appointments are in supercession of all previous notifications issued by the State Government the notification issued on 1st July 1959 appointing Accommodation Controllers does not use the expression that the appointment is in supercession of all previous appointments. But on the other hand it very carefully says that the officers mentioned are to be Accommodation Controllers for the respective areas. 32. Therefore, both the learned Government Pleader and Mr. Surianarayana Iyer very strenuously urged that taking these notifications together and reading them in the light of the provisions contained in S.36(3) of the Act it will clearly mean that those authorities who were functioning as Accommodation Controllers, in particular, under the ordinance that preceded the Act are entitled to continue and function as Accommodation Controllers under the Act notwithstanding that there has been no separate order appointing them as Accommodation Controllers. It is only when there has been a specific supercession of these officers or their powers have been taken away, clearly, the learned counsel urged, that it can be stated that there has been a displacement of these officers by fresh officers. At the most, learned counsel urged that persons like the first respondent who were functioning under the Ordinance as Accommodation Controllers and also the persons who have been constituted Accommodation Controllers under the notification dated 1-7-1959 are both entitled to function as Accommodation Controllers under the Act. Mr. Surianarayana Iyer urged that there is also a provision in the Act itself, namely, S.3(3) to the effect that an Accommodation Controller has to exercise his powers and perform his functions subject to such general directions as the Government may issue. If in any particular case any such hardship as pointed out by Mr. V. R. Krishna Iyer is made known to the State Government certainly it is open to the state Government to give specific directions under S.3(3). Both the learned counsel urged that these are not circumstances which could weigh with this court in coming to the conclusion that the authority, namely, the first respondent, is not entitled to function as Accommodation Controller. In my view, there is considerable force in the contentions raised by Mr. Surianarayana Iyer and the learned Government Pleader on behalf of the respondents. But the position has now been clarified by the amendment made to S.36 of the Act under Kerala Act XXIX of 1961. It will be seen that the following expressions have been added to S.36(3) by the Amendment Act XXIX of 1961. "Unless and until they are superceded by appointment or constitution as the case may be under the Act". and the learned counsel are agreed that this amendment has been retrospectively brought into effect from the date of the commencement of the parent Act itself. "Unless and until they are superceded by appointment or constitution as the case may be under the Act". and the learned counsel are agreed that this amendment has been retrospectively brought into effect from the date of the commencement of the parent Act itself. Therefore, a discussion on this question probably is now purely academic because we can proceed on the basis that at the time this order of allotment was passed on 4-2-1961 the provisions enacted under S.36(3) by the amendment Act were in force and therefore it will follow that the first respondent who was functioning under the Ordinance was entitled to function as such and admittedly no materials have been placed before me to show that the appointment of the first respondent under the Ordinance has been in any way superceded by virtue of any orders passed by the State Government. Therefore, considering the matter on any basis it follows that the contention of Mr. V. R. Krishna Iyer, learned counsel for the petitioner, that the first respondent had no jurisdiction to function as an Accommodation Controller under the provisions of Kerala Act XXIX of 1961 cannot be accepted. 33. Then the learned counsel, as mentioned earlier, has raised two other contentions regarding the absence of rules under S.4(3) and also regarding the provisions of rule 24(7) being ultra vires. In my view, 1 have very closely listened to the arguments of the learned counsel advanced on this aspect but prima facie, I can quite frankly say; I find considerable difficulty in agreeing with them straightway. The position taken by Mr. V. R. Krishna Iyer has been very seriously controverted by Mr. Surianarayana Iyer and also by the learned Government Pleader appearing for the first respondent. But in this case I do not propose to express any final opinion on this aspect. 34. For the purpose of this writ petition I would assume that the first respondent had jurisdiction to make an allotment of the property in question to a non official like the second respondent. But the question will be whether the actual order of allotment made in favour of the second respondent can be justified and upheld in the circumstances of this case. 35. But the question will be whether the actual order of allotment made in favour of the second respondent can be justified and upheld in the circumstances of this case. 35. Admittedly S.4(3) which gives jurisdiction to the officer to make the allotment in the manner referred to therein gives him power to require the property also for the accommodation of "such class of non officials as may be prescribed having regard to the importance of their service to society". So far as rule 24 of the rules that have been framed under S.32 of the Act is concerned, that rule states the order of priority among the persons to whom buildings are to be allotted by the Accommodation Controller. Clauses 1 to 6 are not necessary ' for the present purpose. But clause 7 says "for non officials having regard to the importance of their service to the society". Therefore, jurisdiction is given under S.4(3) of the Act read with Rule 24(7) to the Accommodation Controller to make an allotment of a building in favour of a non official but having regard to the importance of his service to society. 36. It is here that the learned counsel, Mr. V. R. Krishna Iyer, very strenuously urged that the order of allotment in favour of the second respondent does not show that the officer had really applied his mind to consider whether the second respondent is such a non official to whom having due regard to the importance of his service to society an allotment under the provisions of the Act can be made. 37. In this connection, the learned counsel urged that on the same date as 4-2-1961 two orders have been passed by the same authority, namely, Ext. P. 1 intimating that the property is allotted to the second respondent under the provisions of the Act and another, namely, Ext. P. 1(a) to the effect that the identical property in question has been taken over by the authority under S.4(3) of the Act for the purpose of an officer of the State or of the Central Government. Notwithstanding a very strenuous attempt made in the two counter affidavits filed by the Assistant Collectors to the effect that Ext. P. 1(a) to the effect that the identical property in question has been taken over by the authority under S.4(3) of the Act for the purpose of an officer of the State or of the Central Government. Notwithstanding a very strenuous attempt made in the two counter affidavits filed by the Assistant Collectors to the effect that Ext. P. 1(a) has been passed under a mistaken impression or by mistake in the office, the learned counsel urged that the manner in which the power is sought to be exercised clearly shows that the officer was making orders in a purely mechanical way without applying his mind. 38. No doubt, Mr. Surianarayana Iyer, learned counsel appearing for the grantee also urged that the explanation given by the Assistant Collectors in the two counter affidavits regarding the nature of the order Ext. P. 1(a) has to be accepted and therefore, Ext. P. 1(a) should not be given undue importance as urged by Mr. V. R. Krishna Iyer. In my view, this will be oversimplifying the matter. No doubt, in both the counter affidavits, the Assistant Collectors have stated that order Ext. P. 1(a) to the effect that the property is taken over for the purpose of an officer of State Government or the Central Government is a mistake. But if Ext. P. 1(a) stands, there cannot be a further allotment of the same property on the same date in favour of the second respondent. Similarly, if Ext. P.1 stands there cannot also be an allotment of the same property on the same day in favour of an officer of the State Government or the Central Government. Before one of the two orders is attempted to be enforced, the other order has to be cancelled. Admittedly, in this both the communications were sent from the office of the Assistant Collector to the petitioner on the same date and therefore when a person receives two orders it is quite natural for him to expect that the two inconsistent orders cannot stand side by side. Notwithstanding the averment in the counter affidavit that Ext. P. 1(a) has been issued by mistake no attempt has been made by the authorities concerned to withdraw the order. In my view, there is considerable force in the contention raised by the learned counsel that the allotment has been made more or less in a mechanical way. Notwithstanding the averment in the counter affidavit that Ext. P. 1(a) has been issued by mistake no attempt has been made by the authorities concerned to withdraw the order. In my view, there is considerable force in the contention raised by the learned counsel that the allotment has been made more or less in a mechanical way. As I will presently show, there is considerable difficulty in accepting the contention of the learned counsel for the allottee that the circumstances under which the allotment has been made in favour of his client and referred to in the later affidavit filed by the officer would clearly show that the allotment should be given due weight and importance. 39. I have already referred to the statements contained in the later counter affidavit that has been filed on behalf of the officer. In particular, so far as the allotment in favour of the second respondent is concerned, in paragraph 7 it is stated that the second respondent is a non official dealer in articles of stationery about whose use to society he was satisfied at the time when he made the allotment. Ordinarily I would have been inclined to give considerable importance to such statements made by a responsible officer like the first respondent. But in this case, having regard to several other circumstances which I will indicate below that this statement by itself cannot be given that importance which it otherwise deserves. 40. The second respondent, as I mentioned earlier, has referred to the application made by him for allotment under Ext. P. 1. I have already mentioned that along with the second respondent's application there were five other applications by other people for allotment of the property in question. 41. In his application it will be seen that the second respondent states that the shop building in question which was occupied by one gentleman is being vacated on 23-1-1961 and he also says that he has come to know that possession of the same will be given to the petitioner. Later the second respondent states that he is one of the coowners of the property for a one-sixth share and that the petitioner does not require the shop for his own use. Later the second respondent states that he is one of the coowners of the property for a one-sixth share and that the petitioner does not require the shop for his own use. The second respondent further states that he is doing business in another shop and he proposes to expand the volume of his business but there is no scope for proper expansion in the shop in which he is doing business. Later he again emphasises the fact that he being a coowner of the building in question he has got an allotment claim for the same since it is required for his own use and occupation and finally he makes a request for the allotment of the shop. It is not necessary for me to advert to the other applications that have been filed by various other persons for allotment of this house. It is rather significant that in Ext. P. 1 the second respondent does not even purport to make. out a case as to how he being a non official comes under the class of persons rendering important service to the society, which will justify the allotment of the property. 42. Even in the later counter affidavit that has been filed on behalf of the first respondent there is no avernment to the effect that at the time when he made this allotment in favour of the second respondent he did consider the individual merits or claims of the second respondent along with the various other applications that have been made by several other persons for allotment of the property. No doubt, Mr. Surianarayana Iyer may be justified in his contention that it is not really necessary for the officer to mention all these matters in the order that has been issued. In fact, I am aware of his contention that it is not even necessary for the officer in such circumstances to pass a formal order setting out the reasons because what S.4(3) and 4(5) require is only an intimation to the owner of the property that the property in question is required for the person mentioned therein. 43. Giving due regard to some of these aspects that have been presented before me by Mr. 43. Giving due regard to some of these aspects that have been presented before me by Mr. Surianarayana Iyer, in my view, whatever may be the nature of the order, unless the officer has got materials from which he has come to a conclusion that a person, though he is a non official, should be considered to be so important in view of the important service that he is rendering to the society, there will be no jurisdiction in that officer to make an allotment to a non official as will be clear from the provisions of S.4(3) of the Act read with rule 24, clause (7) of the rules framed under the Act. 44. As I mentioned earlier, in the application Ext. R1 there is absolutely no whisper made by the petitioner as to the nature of the business that he is carrying on or the important service that he is rendering to the society by carrying on that business. The emphasis in Ext. R1 is regarding his coownership right in the property. I have already referred to the other circumstance that even in the counter affidavit filed on behalf of the second respondent emphasis is more laid upon his coownership right in this property and I have already said that his having a coownership right or not has no bearing at all in the matter of an allotment of the property to a non official under the provisions of the Act. Unfortunately I have gone through the entire file which has been produced before me by the learned Government Pleader and I should frankly say that I see no indication anywhere that the officer has applied his mind to consider as to whether the second respondent is such a non official to whom the property should be allotted having due regard to the importance of the service rendered by him to the society. On the other hand, in the notes made, Ext. P. 2 it is very clear that the emphasis is not upon the circumstance that the second respondent's trade is such that he renders an important service to the society. Emphasis is placed upon the fact that he is a coowner of the building in question and he had made an allotment claim for the same as he requires it for his own use. Emphasis is placed upon the fact that he is a coowner of the building in question and he had made an allotment claim for the same as he requires it for his own use. That circumstance is absolutely foreign and irrelevant to the claims of non officials who seek allotment of properties from officers like the first respondent under the provisions of Kerala Buildings (Lease and Rent Control) Act, 1959. 45. Therefore, notwithstanding the very strenuous attempt made by the learned Government Pleader appearing for the first respondent and Mr, Surianarayana Iyer, learned counsel for the allottee, to sustain the order Ext. P. 1, in my view, Ext. P. 1 has to be set aside as being ultra vires. 46. No doubt, there is an allegation of mala fides made in the affidavit as against the officer who made the allotment. I do not understand this allegation to attribute any sort of improper motive to the first respondent when he made the order of allotment under Ext. P. 1. That attack must only be considered in the light of the various other allegations, namely, that the officer has not actually applied his mind to the actual circumstances under which alone he can make an allotment to persons like the second respondent. Therefore, I will ask the officer to take up afresh the application of the second respondent for allotment of the property. He will also take into account the application filed by the petitioner on 11-2-1961 and if ultimately an allotment is to be made it will be made in the light of the directions contained in this judgment and having due regard to the provisions of the statute. 47. The order, Ext. P. 1(a) which even according to the first respondent ceases to have any force can straight-away be struck down and quashed. 48. From what 1 have stated earlier, it follows that the order Ext. P. 1 making the allotment of the property in question under the provisions of the Act in favour of the second respondent has also to be quashed. 49. It is open to the first respondent to take up the question of making a fresh allotment under the provisions of the Act, and consider the application of the second respondent which is already pending before him under Ext. R1. 49. It is open to the first respondent to take up the question of making a fresh allotment under the provisions of the Act, and consider the application of the second respondent which is already pending before him under Ext. R1. As the matter has now to be taken up afresh the officer can also give due consideration to the further application that has been filed by the petitioner on 11-2-1961 stating that he does not intend to allot the premises and that he wants the premises to effect renovation and repairs. Even in the matter of considering the application of the second respondent the petitioner is entitled to intervene and place all his points of view in that matter. After considering all these aspects it is open to the first respondent to consider the question of making any fresh allotment that may be necessary having due regard to the observations contained in this judgment and to the provisions of the statute and the rules bearing on that matter. 50. Mr. Surianarayana Iyer has made a request that his client, the second respondent, may be allowed to continue in occupation of the premises in question till the matter is disposed of afresh by the first respondent. I do not see why this reasonable request should not be granted in favour of the second respondent. The second respondent, notwithstanding the fact that the order of allotment Ext. P. 1 has been set aside, will continue to be in possession of the building on the same terms mentioned in Ext. P. 1 and will not have any higher rights. If no fresh allotment is made in favour of the second respondent by the first respondent in the fresh proceedings to be taken, the second respondent will forthwith surrender possession of the property to the petitioner and in default it is open to the petitioner to seek eviction by virtue of this order itself. As the matter has been pending for a long time the first respondent is directed to take up this matter and adjudicate upon it within a period not exceeding six weeks from this day. A communication will be sent to the first respondent as expeditiously as possible. There will be no order as to costs.