Bhagwan Dei v. Additional District Judge, Kanpur — 1978 DIGILAW 837 (ALL)

ORDER K C. Agrawal, J :- Premises No. 105/480, Srinagar, Kanpur, belonged to Ram Lal and Bhagwan Din. The petitioners are the heirs and legal representatives of the deceased Ram Lal. The ground floor of the aforesaid house had bee+i formerly let out to one Hazari Singh died in 1966. After his death, Sheo Datt, son of Hazari Singh, surrendered the ground floor of the premises in favour of the landlords and hand over the possession of the same to them. 2. On vacation of the aforesaid premises, the landlords filed an application for release of the accommodation. An application for allotment was made by one Ram Krishan Sargam on 21-3-1970, Against the aforesaid order, the landlords preferred a representation to the State Government under section 7-F of U F. Act No. III of 1947. The representation was accepted, and the State Government did not only cancel the allotment order made in favour of Ram Krishan Sargam, but also directed for the release of the premises in favour of the landlords. 3. After sometime Saptahik Kanther, respondent No. 2, filed an application for allotment of the said premises on the ground that as the landlord had illegally transferred possession to the persons who were not their family members, therefore, the premises was vacant, and that as respondent No. 2 required the same for its occupation the premises be allotted to respondent No. 2. An enquiry was made by the Rent Control and Eviction Officer. After being satisfied that a vacancy existed, the Rent Control and Eviction Officer allotted the ground floor of he aforesaid premises to respondent No. 2 on 26-5-1972. There after, on 2.6-1972 the landlords filed an objection to the allotment made in favour of respondent No. 2 on the ground that as there was no vacancy, the allotment made in favour of respondent No. 2 was illegal and invalid. In the objection, the landlords claimed that in the disputed premises a coaching school was bring run by the landlords, and that Jai Singh, Udaibir Singh, and Ram Swarup were the Instructors in the coaching school. These three persons were living in the said school as licensees for a temporary period. 4. Before an order on this objection could be passed, U.P. Act No. XIII of 1972 came into force. These three persons were living in the said school as licensees for a temporary period. 4. Before an order on this objection could be passed, U.P. Act No. XIII of 1972 came into force. Consequent upon the enforcement of the New Act, the proceedings started by the landlords were converted into one under Section 16 of the present Act. Respondent no. 2 Contested the objection filed by the landlords and pleaded that the house had been actually let out by the landlords. The Rent Control and Eviction Officer heard the objection filed by the landlords on 19.1. 1973. It, however, appears that on that date a request was made on behalf of respondent no. 2 to the Rent Control and Eviction Officer for inspection of the premises in question. This was done by the respondent no. 2 to prove that the premises was not in possession of the landlords but had been let out to those persons. The Rent Control and Eviction Officer deputed the Inspector who visited the house on that very day and thereafter submitted his report to the effect that he found that ladies of the family of the landlords were residing there in. On the basis of the said report of the Inspector, the Rent Control and Eviction Officer allowed the objection of the landlords and set aside the allotment order made on 26.5.1972. 5. Against the aforesaid order of the Rent Control and Eviction Officer, an appeal was, filed by the respondent no. 2 to the District Judge. During the pendency of the appeal, the provisions of Section 18 of U.P. Act No. XIII of 1972 were amended. Consequently, the appeal was treated as revision and was allowed by the impugned order. Feeling aggrieved, the landlords filed the present writ petition. 6. The first question that arises for determination is whether the objection filed by the landlords could be treated to have been filed under Section 16(5) of the new Act. The learned Additional District Judge, who decided the revision since was of the opinion that the objection filed by the landlords was one under Section 43(2)(k)(1) he held that it had to be dismissed on that ground. The finding of learned Additional District Judge appears to be erroneous. The provision which appears to be applicable is section 43(2)(b) and not Section 43(2)(k) (1). The finding of learned Additional District Judge appears to be erroneous. The provision which appears to be applicable is section 43(2)(b) and not Section 43(2)(k) (1). Section 43(2)(b) reads as under : "any application or proceeding pending immediately before the commencement of this Act before the District Magistrate under Section 7 of the old Act or under Rule 6 of the Control of Rent and Eviction Rules, 1949, under Section 17 of the old Act, shall be disposed of by him in accordance with the provisions of Sections 16 and 17 of this Act." 7. Consequently, the objection of the landlords was maintainable, under the aforesaid provision. In taking this view, I am supported by decisions in Mahesh Kumar v. First Addl. District Judge, 1977 (U.P.) R.C.C. 247, Niren Kumar Das v. District Judge, 1977 (U.P.) R.C.C. 25, and Bishambhar Nath Anand v. Shambhu Narain Singh, 1976 (U.P.) R.C.C. 162. Accordingly the learned Additional District Judge was wrong in holding that the objection filed by the landlords was liable to be dismissed on the ground of its maintain- ability. 8. The next question that arises for determination is whether the allotment order made on 26.5.1972 was valid. It is settled beyond dispute that an order of allotment could be made if the premises was either vacant or likely to fall vacant. The allegation of the respondent no. 2 was that the same was vacant, whereas this was denied by the landlords. The Rent Control and Eviction Officer was called upon to decide whether on the date of the allotment order a vacancy existed. It, however, appears that instead of directing his attention to the question of vacancy with reference to the date of allotment, namely, 26.5.1972, he decided the objection in favour of the landlords on the basis of the report submitted by the Rent Control Inspector on 19.1.1973. For the purposes of deciding the validity of the allotment order the date which was material was the date of vacancy and not the date on which the Inspector submitted the report, i e. 19.1.1973. The Rent Control and Eviction Officer was, therefore, wrong in holding that since the landlords were in possession of the building on 26.5.1972, the allotment order was valid. Subsequent possession found by the Rent Control Inspector could not be useful in deciding the controversy. 9. The Rent Control and Eviction Officer was, therefore, wrong in holding that since the landlords were in possession of the building on 26.5.1972, the allotment order was valid. Subsequent possession found by the Rent Control Inspector could not be useful in deciding the controversy. 9. The learned Additional District Judge, was, therefore, right in setting aside the order of the Rent Control and Eviction Officer on that basis. But, the learned Additional District Judge should have either himself enquired into the question of vacancy on 26.5.1972 or should have directed the Rent Control and Eviction Officer to do so. As there is no finding given either by the Rent Control and Eviction Officer or by the Additional District Judge about the fact of vacancy on 26.5.1972, it appears appropriate to quash the orders of both the authorities and to direct the Rent Control and Eviction Officer to decide the question of allotment afresh. 10. In the result, the writ petition succeeds and is allowed. The orders of the Additional District Judge, and the Rent Control and Eviction Officer are quashed, and the Rent Control and Eviction Officer is directed to decide the question of allotment afresh in the light of the observations made above. No order as to costs.