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1969 DIGILAW 420 (ALL)

Abhai Mangal Prasad v. District Supply Officer

1969-12-18

HARI SWARUP

body1969
ORDER Hari Swarup, J. - Abhai Mangal Prasad has filed this petition against the orders of the District Supply Officer Gorakhpur exercising the powers of the District Magistrate u/s of the UP (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act). 2. There was a shop in Gorakhpur and the Petitioner filed an application for allotment of the shop to him u/s 7 of the Act. Ramanand Prasad, opposite party No. 2 was also one of the Applicants. The shop was ultimately allotted to Ramanand Prasad and the Petitioner's application was not considered on merits. 3. The shop was in the occupation of one Shambhu Prasad. The Petitioner alleged to have purchased a share in the shop from the owners of the building and the assets of the business of Shambhu Prasad. On 26-9-1964 it is alleged that Shambhu Prasad intimated to the District Supply Officer that he had vacated the shop. In the counter-affidavit it has been stated that the intimation was only of the intention to vacate the shop and not of actual Vacancy. The Petitioner filed an application on 29-9-1964, for its allotment. The application (of) Ramanand also came to the District Supply Officer for the allotment of the same shop. Some of the co-owners of the building with whom the Petitioner had entered into a contract for the purchase thereof also applied for allotting the shop to the Petitioner. The District Supply Officer considered the Petitioner's application on 6-4-1965 and held that as the Petitioner had entered into the occupation of the shop without a prior allotment order, his application was not entitled to be considered. By the same order he directed that the vacancy may be notified and the applications be considered afresh. On 21-5-1965 the Rent Control and Eviction Officer, opposite party No. 1, again held that the Petitioner's application for allotment could not be considered as he had not come with clean hands after vacating the premises. He allotted the accommodation to Ramanand Prasad, opposite party No. 2 by the same order. 4. The learned Counsel for the Petitioner has contended that the Petitioner's application for allotment of the accommodation could not be refused to be considered simply on the ground that he had entered into occupation of the shop. There is force in this contention of the learned Counsel for the Petitioner. 4. The learned Counsel for the Petitioner has contended that the Petitioner's application for allotment of the accommodation could not be refused to be considered simply on the ground that he had entered into occupation of the shop. There is force in this contention of the learned Counsel for the Petitioner. There is nothing in the UP (Temporary) Control of Rent and Eviction Act which might show that a person who had occupied the premises is disentitled from making an application for allotment of the shop u/s 7 of the Act. On the contrary the proviso to Section 7-A of the Act suggests that a person may be permitted to continue in possession even if he has entered into possession without an allotment order in his favour. In the present case the Petitioner had made an application for allotment on 29-9-1964 and the application had not been considered till April 1965 and he had also entered into an agreement to purchase the property from the owner of the shop and therefore, his application which had been made as early as 29-9-1964, could not be thrown out without consideration on merits. The relevant date was not the date on which the order was passed by the Rent Control and Eviction Officer but the date on which the application for allotment had been filed. In the circumstances of the case it cannot be held that the Rent Control and Eviction Officer acted in accordance with law when he refused to consider on merits the application of the Petitioner for allotment of the accommodation. 5. The learned Counsel for the Petitioner also contended that the order dated 6-4-1965 be quashed as it contains observations on merits of the case even though the Petitioner's application was not considered on merits. It is not necessary to quash the order as the Rent Control and Eviction Officer will now consider the application of the Petitioner on merits and come to the conclusion afresh. The question of taking into consideration what had been observed in the order dated 6-4-1965 does not arise as the order, in effect, only declares that the vacancy has been caused after Shambhu Prasad had left the accommodation and directs the notification of the vacancy. No objection can be taken to this finding and the direction given in that order. 6. In the result the petition is allowed. No objection can be taken to this finding and the direction given in that order. 6. In the result the petition is allowed. The order of the Rent Control and Eviction Officer dated 21-5-1965, is quashed and he is directed to pass an allotment order u/s 7(2) of the UP Temporary Control of Rent and Eviction Act after considering the applications for the allotment of the accommodation including the applications of the Petitioner Abhai Mangal Prasad on merits in accordance with law. As the matter is to be considered by the Rent Control and Eviction Officer afresh no order is made as to costs.