Arun Kumar v. District Judge — 1979 DIGILAW 1220 (ALL)

JUDGMENT : MURLIDHAR, J. 1. This is a petition under Article 226 of the Constitution by Arun Kumar, an applicant for allotment of a shop in Kulri Bazar, Mussoorie and is directed against the orders dated 14.6.1978 passed by the Rent Control and Eviction Officer and the District Judge respectively holding that no deemed vacancy u/s 12 of U.P. Act 13 of 1972 (hereinafter called the Act) had occurred in the premises and, therefore, the same were not available for allotment. 2. The brief relevant facts are that one Rajeshwar Prasad Rastogi, Respondent No. 3, was the tenant of the shop and carried on trade in groceries. One Nand Lal Lamba, Respondent No. 4, carrying on the business of readymade garments under the name and style of Beauty Place was inducted in the said shop in June, 1974. Thereupon a number of persons including the Petitioner applied for allotment of the shop asserting that a deemed vacancy u/s 12(1) or (2) had occurred. This was denied by the tenant. The Rent Control and Eviction Officer per his order dated 14.6.1976 found that the tenant Rajeshwar Prasad Rastogi was doing his own business as well as that of Beauty Place and that the shop in question had not been shown to have been sublet by him to Nand Lal Lamba and, therefore, a deemed vacancy had not occurred. In the course of the order he also observed that there was no evidence of any partition or separate locking arrangement in the shop. On the same date by another order the Rent Control and Eviction Officer granted approval to the tenant R.P. Rastogi to take in Nand Lal Lamba as a partner under Rule 10 (6) (a) of the rules framed under the Act. The Petitioner filed two appeals against both these orders which under the transitional provisions of U.P. Act 28 of 1976 were deemed to be revisions and decided as such by the District Judge. The District Judge recorded the finding that the tenant had sublet a portion of the shop to Nand Lal Lamba but it was an undemarcated portion. Further that u/s 12 of the Act, a demarcated portion could be deemed to be vacant but no deemed vacancy can occur of an undemarcated portion. The District Judge recorded the finding that the tenant had sublet a portion of the shop to Nand Lal Lamba but it was an undemarcated portion. Further that u/s 12 of the Act, a demarcated portion could be deemed to be vacant but no deemed vacancy can occur of an undemarcated portion. The District Judge also held that no appeal or revision lay against the order granting permission under Rule 10 (6) (a) and that stage would come when an allotment order is passed in favour of the new partnership under proviso (a) to Rule 10 (6). By this petition the Petitioner has attacked both the orders. 3. Learned Counsel for the Respondents urged that the orders of the District Judge in the present case was without jurisdiction because no appeal lay against any of these orders as these were not orders u/s 16 of the Act. Reliance has been placed on Tirlok Singh and Co. vs. District Magistrate, Lucknow and Others, (1976) 3 SCC 726 and M.C. Banerjee vs. VII Addl. District Judge, 1979 UP RCC 140. In Trilok Singh's case (supra) the Supreme Court has held that the stage of determining a vacancy is merely a step-in-aid of an order of allotment and it is only when such an order of allotment or release is passed that the landlord or the tenant, as the case may be, can have a grievance. In that case a vacancy was declared on the application of release filed by the landlord and the tenant had sought to attack this order. The facts of M.C. Banerji's case (supra) are similar to the facts in the present case. There also it was claimed by an applicant for allotments that a deemed vacancy had occurred and the Rent Control & Eviction Officer held that there was no such, vacancy. In appeal the District Judge reversed this finding. K.N. Singh, J. held that the District Judge had acted without jurisdiction and observed: Unless vacancy is determined no proceedings for allotment can be taken and no allotment order could be passed. The Legislature has not made any provision for appeal against an order refusing to declare vacancy. In the instant case the Rent Control and Eviction Officer had merely recorded findings that the premises in dispute was not vacant and, therefore, no further proceedings could be taken for allotment of the same. The Legislature has not made any provision for appeal against an order refusing to declare vacancy. In the instant case the Rent Control and Eviction Officer had merely recorded findings that the premises in dispute was not vacant and, therefore, no further proceedings could be taken for allotment of the same. The learned District Judge exceeded his jurisdiction in setting aside the order as no appeal was maintainable. The impugned order of the Additional District Judge is vitiated and is liable to be quashed. 4. The aforesaid observations undoubtedly support the contention of the learned Counsel for the Respondents that the District Judge had a jurisdiction to hear the appeal With great respect I am inclined to think that while there may be good grounds for saying that an applicant for allotment has no locus to challenge a finding that deemed vacancy had not occurred (I express no opinion on this question because this was not raised at the Bar), but it is difficult to accept the above view about the right of revision u/s 18 of the Act. A case where vacancy is not declared stands on a different footing from one where vacancy is declared inasmuch as refusal to declare vacancy by the Rent Control and Eviction officer also amounts to a rejection of the release or allotment applications and, therefore, in such a case the aggrieved party, be he a landlord or an applicant for allotment (the question of his locus apart) has the remedy of appeal or revision u/s 18 of the Act open to him. If this point were necessary for the decision of the present petition I would feel bound to refer the point to a larger Bench but inasmuch as the findings of the District Judge do not make any difference in the view that I am disposed to take this is not necessary. 5. Learned Counsel for the Respondents also contended that In any case the District Judge's finding about there being a subletting on a reappraisal of evidence was in excess of his powers under the amended Section 18. The District Judge's powers of revision u/s 18 are on the same lines as the powers of a revisional court u/s 115 CPC. The settled law is that it is only a jurisdictional error that can justify interference by a revisional court. The District Judge's powers of revision u/s 18 are on the same lines as the powers of a revisional court u/s 115 CPC. The settled law is that it is only a jurisdictional error that can justify interference by a revisional court. In the present case there does not appear to have been anything of the kind in the finding of the Rent Control Officer and the District Judge has come to his finding of subletting virtually as a court of appeal on facts after considering the whole material in detail. Therefore, the finding of the District Judge that there had been subletting must be found to be unsustainable and liable to be quashed. If this finding goes the basis for deeming the premises as vacant disappears. 6. Apart from this I am also inclined to agree with the legal position relied upon by the District Judge which is the basis of his dismissing the appeal. He has accepted the proposition that if there is subletting of a portion, that portion can be deemed vacant but has relied upon the position that if subletting is of an undemarcated portion there could be no deemed vacancy. There may be a question whether in such a case it can be strictly said to be subletting at all because the concept of letting involves putting in exclusive possession, but leaving aside this aspect and accepting subletting in the sense of allowing the use for compensation, I am inclined to think that unless some specific portion of the premises has been sublet it will not be possible to say that the tenant has ceased to occupy any part of the shop. Thus if the so called subtenant is allowed to keep his goods in one or two shelves or showcases of the shop where the tenant's goods are also kept it may not be a case of ceasing to occupy. This indeed is the finding of the District Judge. I am unable to see any infirmity in the view that on these facts a deemed vacancy would not occur. 7. As regards the order granting permission under Rule 10 (6) (a) it was urged that the provisions of proviso (a) to Rule 10 (6) are ultra-vires of the rule making power inasmuch as they go beyond Section 12(2) of the Act. 7. As regards the order granting permission under Rule 10 (6) (a) it was urged that the provisions of proviso (a) to Rule 10 (6) are ultra-vires of the rule making power inasmuch as they go beyond Section 12(2) of the Act. It is not necessary to go into this question in the present petition as Respondent No. 3 in his counter-affidavit has stated that Respondent No. 4, has no connection left with the premises now. Moreover there is no occasion for the application of the said proviso unless a deemed vacancy has occurred. 8. In the result the petition fails and is hereby dismissed. No order as to costs.