Girdhar Pandey v. Addl. District Judge — 1980 DIGILAW 756 (ALL)

JUDGMENT : A.N. VARMA, J. 1. This petition is directed against the orders passed by the Respondents Nos. 1 and 2 allotting the premises in dispute to the Respondent No. 3. 2. The relevant facts giving rise to this petition are that one Sri M.P. Pandey, the original tenant of the premises in dispute was transferred from Azamgarh where the premises in dispute are situate. In anticipation of the vacancy, the Petitioner made an application for the allotment of the accommodation. The application was endorsed by the landlord. The landlord made the following endorsement on the application; The residential quarter which is said to be vacant may be allotted to the Applicant Sri Girdhar Pandey. I am agreeable to allotment in his name. The Respondent No. 3 also made an application for allotment. 3. It appears that Mahesh Pandey, the District Agriculture Officer, the brother of the Respondent No. 3 was posted at Azamgarh and his family was residing there. He was transferred about the same time to some station out-side Azamgarh. Mahesh Pandey filed an application before the District Supply Officer to the effect that he was shortly going to be transferred, that his children were studying at Azamgarh, that his brother Respondent No. 3 was posted at Azamgarh and that his children would stay with the Respondent No. 3 for their studies, after his transfer. On these facts it was requested that the accommodation be allotted to the Respondent No. 3. 4. It appears that the Prescribed Authority had some consultation with the District Magistrate and on its basis allotted the accommodation to the Respondent No. 3 and not to the Petitioner. Aggrieved by the order passed by the Prescribed Authority, the Petitioner filed a revision before the learned District Judge, which was transferred to the learned IV Additional District Judge, Azamgarh who dismissed the same by an order dated 12-7-1978 against which this writ petition is directed. 5. The learned Counsel for the Petitioner contends that both the impugned orders are manifestly un-sustainable in the eye of law. It is urged that there has been a patent breach of the mandatory provisions of Rule 11(4) of the Rules framed under U.P. Act No. XIII of 1972. There has also been infringement of an equally mandatory provision contained in Section 17 of the aforesaid Act. It is urged that there has been a patent breach of the mandatory provisions of Rule 11(4) of the Rules framed under U.P. Act No. XIII of 1972. There has also been infringement of an equally mandatory provision contained in Section 17 of the aforesaid Act. The argument is that the Rule "First come first served" is to be departed from only for adequate and exceptional reasons to be recorded in writing. Admittedly the Petitioner was the first among the Applicants for the allotment. The authority allotting the accommodation gave no reasons whether adequate and exceptional or otherwise, for departing from this suit. 6. Having heard the learned Counsel for the parties I am clearly of the view that the contention raised by learned Counsel for the Petitioner is well founded. The authority which eventually passed the order of allotment did not comply with the aforesaid mandatory requirement of recording reasons for departing from this statutory rule. All that the District Supply Officer has observed in his order dated 30-7-1977 is that he had consultations with the District Magistrate and that in his opinion in comparison to the needs of Girdhar Pandey (Petitioner) the need of Chandrama Pandey appears to be greater. This is hardly recording of any reason as required under the above mentioned statutory provision namely Rule 11(4). In fact the District Supply Officer has given no reason whatsoever, much less adequate and exceptional, for making a departure from the aforesaid rule. 7. In my judgment the provisions requiring recording of adequate and exceptional circumstances are mandatory in character. For, otherwise there can be no check against an arbitrary exercise of power. The legislature has laid down certain norms to be followed in the matter of allotment and where the authorities made a departure from these norms they are required to give reasons which must be adequate and exceptional. In the present case the District Supply Officer clearly violated that mandatory requirement. 8. The learned Counsel for the Respondent urged that in the application moved by the brother of Respondent No. 3 reasons had been disclosed why the premises should be allotted to the Respondent No. 3 and therefore it should be assumed that the District Supply Officer merely accepted those grounds, though he may not have said so. I do not agree. The learned Counsel for the Respondent urged that in the application moved by the brother of Respondent No. 3 reasons had been disclosed why the premises should be allotted to the Respondent No. 3 and therefore it should be assumed that the District Supply Officer merely accepted those grounds, though he may not have said so. I do not agree. After narrating the facts, all that the District Supply Officer had to say was that he had consultations with the District Magistrate and that in his opinion the need of Chandrama Pandey was greater than that of the Petitioner. This was an entirely unsatisfactory way of disposing of the case. 9. The learned Counsel for the Petitioner next contended that the provisions of Section 17 of the Act also enjoined the authorities to give special and adequate reasons for not-allotting the premises to the nominee of the land-lord where the conditions of Section 17 are satisfied. Admittedly on the facts of the present case provisions of Section 17 of the Act were attracted. However the learned District Judge has dismissed the claim of the Petitioner on the short ground that the rule embodied in Section 17 is not inflexible and that for special and adequate reasons it could be departed from. Here again the District Judge has erred. 10. As mentioned above the District Supply Officer gave no reasons at all for departing from the rule incorporated in Section 17, much less special or adequate reasons. The learned District Judge has observed that the District Supply Officer had given reasons in a separate order. I do not find any such order existing. No such order has been filed with the counter-affidavit. Furthermore the reasons have to be given in the judicial order which is passed in disposing of the various applications for allotment. If the District Supply Officer had recorded reasons elsewhere which are not available to the parties those reasons are of no use and can not be pressed into aid by the party in whose favour the departure is made. 11. For the reasons stated above, this petition succeeds and is allowed. The orders passed by the Respondents Nos. 1 and 2 dated 12-7-1978 and 30-7-1977 respectively ate quashed. 11. For the reasons stated above, this petition succeeds and is allowed. The orders passed by the Respondents Nos. 1 and 2 dated 12-7-1978 and 30-7-1977 respectively ate quashed. The case is remanded to the Respondent No. 2 (District Supply Officer), Azamgarh for being disposed of in accordance with law, having regard to the observations made in this judgment. The parties shall bear their own costs of this petition.