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1971 DIGILAW 574 (ALL)

Ram Chand Kohli v. State of U. P.

1971-12-20

HARI SWARUP

body1971
ORDER Hari Swarup, J. - Ram Chand Kohli and Ganga Sagar have filed this petition for quashing the order dated 30-5-1970 passed by the RC and EO-Cum-SDM u/s 7(2) of the U.P. (Temp.) Control of Rent and Eviction Act (hereinafter referred to as the Act) in favour of Ravindra Kumar Respondent No. 3 and the order of the State Government dated 6-1-1971 dismissing their revision filed u/s 7F of the Act. Both the authorities found that the shop was actually not vacant and was in the possession of the Petitioners since long, but still they treated the premises as vacant by applying an assumed fiction of law for purposes of allotment u/s 7(2) of the Act. 2. The State Government has, on the basis of the evidence in the case, recorded a finding that the premises were formerly in the tenancy of one Atma Ram Chaddha and after he left the accommodation in 1966 Ram Chand Kohli and Ganga Sagar became its tenants. There is, however, no finding that the tenancy of Atma Ram Chaddha was ever terminated in accordance with provisions of the Transfer of Property Act. It was not even the case of the opposite party that the tenancy of Atma Ram Chaddha has come to an end by any notice to quit or by delivery of possession to the landlord. Thus even if he left the accommodation in 1966, the tenancy could not have automatically come to an end so as to make the premises, in the eye of law, available for allotment. Alternatively also, on the finding of State Government that after 1966 Ram Chand Kohli and Ganga Sagar became the tenants of the accommodation, the premises could not be deemed in law to be vacant and could not be directed to be let out to any other person. 3. It is clear from the order of the State Government that the premises are in actual occupation of the Petitioners and that the Petitioners have been carrying on business in the shop in dispute since before 1952. On the facts found by the State Govt. the premises were in fact neither vacant nor likely to fall vacant. No order of allotment could, therefore, be passed by the RC and EO in favour of the opposite party No. 3 in respect of the premises in dispute. 4. On the facts found by the State Govt. the premises were in fact neither vacant nor likely to fall vacant. No order of allotment could, therefore, be passed by the RC and EO in favour of the opposite party No. 3 in respect of the premises in dispute. 4. Learned Counsel for the Respondents has, however, contended that even though the shop may not be actually vacant in the sense that the Petitioners were in actual possession thereof and there may be even a lease in their favour at the instance of the landlord, still the accommodation, in the eye of law, must be deemed to be vacant within the meaning of Section 7(2) of the Act making it open for allotment. In support of the contention learned Counsel has relied on the judgment of this Court in Sp. A. No. 959 of 1969 arising out of CMWP No. 2811 and another unreported judgment in S.A. No. 1725 of 1968 connected with S.A. 1798 and 2826 of 1968. In both these cases allotment orders had been made in favour of persons who had claimed to be in actual possession. These are not the cases in which some other person was in actual possession of the accommodation so that it may not be available for occupation by the allottee as in the present case. A person in possession may apply for allotment of the accommodation in his favour and the RC and EO may instead of taking proceedings for his ejectment u/s 7A of the Act allot it to him and permit him to continue his possession as a tenant. But where the accommodation is in actual possession of a person who does not seek allotment but claims to be in occupation as a tenant it cannot be deemed to be vacant and allotted to a person not in occupation. 5. u/s 7(2) of the Act an order directing a landlord to let out an accommodation can be made only if it is actually vacant or is likely to fall vacant. If the accommodation is actually in possession of persons who are held to be tenants, there can be no case for directing the landlord to let it out to some body else without first ejecting the occupants by taking recourse to proceedings u/s 7-A of the Act. If the accommodation is actually in possession of persons who are held to be tenants, there can be no case for directing the landlord to let it out to some body else without first ejecting the occupants by taking recourse to proceedings u/s 7-A of the Act. Where a person occupies an accommodation in contravention of a general order issued u/s 7(2) of the Act directing landlords not to let out any accommodation, it would be a case where the provisions of Section 7-A and not 7(2) will be attracted and the unauthorised occupant will be liable to ejectment. After he is ejected the accommodation will become vacant and it would be possible for the DM to issue an order u/s 7(2) directing it to be let out to any other person. Admittedly in the present case proceedings u/s 7-A had not been taken and the accommodation was never got vacated. The Petitioners are in actual occupation of the premises as tenants as held by the State Govt. The order of allotment passed by the RC and EO, in these circumstances, was without any authority of law and refusal of the State Govt. to set it aside amounts to non-exercise of its jurisdiction on grounds not permitted by law. 6. The petition is accordingly allowed. Let a Writ in the nature of certiorari issue quashing the order of the RC and EO dated 30th May, 1970 and the order of the State Govt. dated 6th January, 1971. There will, however, in the circumstance of the case be no order as to costs.