Jafar Raza v. District Judge, Allahabad — 1978 DIGILAW 710 (ALL)

JUDGMENT K. C. Agrawal, J. :- Premises No. 327, Shahganj, Allahabad, belonged to a waqf. Smt. Kulsum Fatima and Smt. Masoom Fatima as well as Rajjab Khan were the Mutwallis of the said waqf. This was in the tenancy of one S. R. Sircar. After S. R. Sircar left the house, the same was occupied by M. K. Bhatta. M. K. Bhatta also left the premises. Thereafter, the house was occupied by Jafar Raza, the petitioner. According to the case of the petitioner, he occupied the house on 1-7-1976, whereas according to the case of the respondents, the house was occupied by him on 10th July, 1976. 2. Before the house was, however, occupied by the petitioner, Ram Krishna Laskar (Respondent No. 3) filed an application on 19-9-1974. For its allotment, A commissioner was appointed by the Rent Control and Eviction Officer for visiting the spot and making a report about the vacancy. The Commissioner gave a report on 28-9-1974 that S. R. Sircar was leaving the house on 28-9-1974 Thereupon, by an order dated 28-9-1974 a vacancy was notified on 5-11-1974 M. K. Bhatta aforesaid filed an objection claiming that he was living in the house, and that the same was not vacant. By an order dated 22-5-1975 the Rent Control and Eviction Officer upheld the objection of M. K. Bhatta and found that there was no vacancy. As a result of the aforesaid order, the application filed by Ram Krishna Laskar for allotment stood rejected. He preferred an appeal, which was allowed on 20-7-1976. The learned District Judge held that the house was vacant, and that it was open for allotment. 3. On 25-5-1976 Smt. Kulsum Fatima, one of the Mutwallis, filed an application that the Mutwallis has entered into a contract to sell the house to Jafar Raza, and that they had applied for permission to the waqf Board to sell the house to him. On these allegations, the Mutwallis prayed that the house be allotted to Jafar Raza, the petitioner. In the meantime, Jafar Raza also filed an application for allotment on 8-4-1976, and apart from claiming that the allotment be made in his favour, he asserted that he was in occupation of the house on 5th July, 1976, on which date the U.P. Act No. 28 of 1976 came into force, and therefore, he acquired right under section 14 of the Act. 4. 4. The Rent Control and Eviction Officer held that Jafar Raza came into possession of the house on 10-7-1976, and as such he was not entitled to the benefit of section 14. By the same order, he allotted the premises to Ram Krishna Laskar. Against the aforesaid order, an appeal was filed by Jafar Raza the petitioner. The District Judge confirmed the findings of the Rent Control and Eviction Officer about the induction of Jafar Raza into possession on 10th July, 1976, and that Ram Krishna Laskar was entitled to the allotment of this premises. Aggrieved by this order, the present writ petition was filed. 5. Before discussing the merits of the case, it may be pointed out that in pursuance of an agreement to sell, mentioned above, the house was subsequently sold to Jafar Raza. After purchasing the said house, Jafar Raza filed an application for release of the premises on the ground that as he was the owner of the house he was entitled to its release. This application is still pending before the Rent Control and Eviction Officer and is awaiting the result of the writ petition. 6. The main controversy in this writ petition was whether the allotment made in favour of Ram Krishna Laskar was valid. The allotment order was made in his favour by the Rent Control and Eviction Officer and was main tained in appeal by the District Judge mainly on the ground that as he was the first to apply for allotment, he had to be served first. This was obviously done under Rule 11 of the Rules framed under the Act. 7. Learned counsel appearing for the petitioner contended that the two courts below committed an error in holding that the petitioner was not entitled to get the benefit of section 14 of U.P. Act No. XIII of 1972. He contended that the petitioner was in possession of the house in dispute on 5-7-1976 and, therefore, the possession should have been regularised under the said section. After having perused the judgments of the two courts below and the writ petition, I am not prepared to accept the submission of the petitioner. The question as to when the petitioner came into possession is one of fact. Both the parties adduced evidence in support of their respective cases. After having perused the judgments of the two courts below and the writ petition, I am not prepared to accept the submission of the petitioner. The question as to when the petitioner came into possession is one of fact. Both the parties adduced evidence in support of their respective cases. The Rent Control and Eviction Officer as well as the District Judge held that the petitioner entered into possession of the house on 10-7-1976. This being so, the judgments of the courts below cannot be reversed on this point. 8. The second question was with respect to the allotment made in favour of Ram Krishna Laskar. As stated above, the premises was allotted to him as he was first in point of time. It is true that Rule 11 of the Rules framed under the Act lays down the priorities in accordance with which the allotment order is to be passed. Ram Krishan Laskar and Jafar Raza both fell in the third ate gory. Under the proviso added to clause thirdly of Rule 11, in each of the above categories, subject to the provision of Rule (2) the principle "first come, first served" shall be followed. This, however, does not obviate the necessity of enquiring into the need of an applicant for allotment. The petitioner claimed that Ram Krishna Laskar did not require the premises for his use and occupation as he was comfortably living in a house situated in the neighbourhood. In the opinion of the courts below, as the application filed by Ram Krishna Laskar was prior in time, the question of the genuiness of the need was not required to be considered. If that be so, the very purpose and object of the Rent Control Act is likely to be defeated. It is a needy person who has to be helped. It is, therefore, necessary in each case to examine whether an application filed by a person for allotment is for his genuine need or is not based on a faked ground. A ground which is fake is no ground in the eye of law and it cannot be taken into consideration. It was, therefore, incumbent for the District Judge as well as the Rent Control and Eviction Officer to have examined whether the application filed by Ram Krishna Laskar was a genuine one. A ground which is fake is no ground in the eye of law and it cannot be taken into consideration. It was, therefore, incumbent for the District Judge as well as the Rent Control and Eviction Officer to have examined whether the application filed by Ram Krishna Laskar was a genuine one. I do not wish to lay down that while considering question of genuineness of the need in the third category (with which I am concerned in the present case), the Rent Control and Eviction Officer is required to compare the need of one with that of another applicant, omitting the principle "first come, first served." This principle will have to be followed if the need had been made out irrespective of the fact that the need of a person later to him may be more acute than that of the first applicant. In this view of the matter, the judgments of the courts below are liable to be set aside. 9. As it appears that the petitioner has purchased the house and filed another application for release, it is appropriate to direct the Rent Control and Eviction Officer to decide that application along with the one which gave rise to the present proceedings. 10. For the reasons given above, the writ petition is allowed, and the judgments of the two courts below are set aside. The case is sent back to the Rent Control and Eviction Officer for deciding the question of allotment afresh. The parties, shall bear there own costs.