Research › Browse › Judgment

Allahabad High Court · body

1984 DIGILAW 952 (ALL)

Mandir Ram Janki v. Narendra Kumar

1984-11-16

S.K.DHAON

body1984
JUDGMENT : S.K. Dhaon, J. This writ petition, at the instance of a landlord, is directed against an order dated 24-1-1980 passed by the District Judge dismissing a revision and confirming an order passed by the District Supply Officer allotting an accommodation. 2. The accommodation in question is a shop. This shop was in the tenancy of one Murtaza Husain, the Respondent No. 2. The Petitioner instituted a suit for ejectment of the Respondent No. 2, Sri Murtaza Husain. This suit was decreed on 8-2-1980. During the pendency of this suit, it appears, an intimation was sent by Sri Narendra Kumar, the Respondent No. 1, that the accommodation in question was likely to fall vacant. Thereafter proceedings were initiated by the District Supply Officer to determine the question as to whether the accommodation in question had really fallen vacant and ultimately that officer passed an order that the accommodation would be deemed to be vacant. 3. It is not in dispute that the order of allotment was passed by the District Supply Officer on the 22nd day of the receipt of the intimation by him of the said vacancy. Indeed, the revisional Court has proceeded on the footing that the said order was passed on 22nd day. However, the revisional court has taken the view that since no material injustice had been caused to the Petitioner by the passing of the order of allotment on the 22nd day it was not a fit case for the exercise of the revisional jurisdiction. The revisional court, in support of its reasoning, has relied upon the contents of Rule 10(7) of the Rules framed under the U.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The thesis of the revisional court is that, even after the landlord had nominated a tenant on the failure of the District Supply Officer to pass an order of allotment within 21 days, there was a discretion in the authority concerned to ignore the recommendation of the landlord and allot the accommodation to a third person. 4. The thesis of the revisional court is that, even after the landlord had nominated a tenant on the failure of the District Supply Officer to pass an order of allotment within 21 days, there was a discretion in the authority concerned to ignore the recommendation of the landlord and allot the accommodation to a third person. 4. Section 17 of the Act provides that where the District Magistrate receives an intimation under Sub-section (1) of Section 15 of the vacancy or expected vacancy of a building an allotment order in respect of that building shall be made and communicated to the landlord within twenty-one days from the date of receipt of such intimation, and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choke and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reasons to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination. A bare reading of this provision indicates that the terms of the provision that the order of allotment shall be passed by the authority concerned within 21 days are mandatory. No exception has been provided by the legislature. This is evident from the fact that immediately after the expiry of 21 days a right accrues in favour of the landlord to nominate his tenant and the legislative scheme appears to be that in the normal course the nominee of the landlord should be allotted the accommodation. At this stage, the contents of Rule 10(7) of the Rules may be considered. This rule provides that the discretion of the District Magistrate u/s 17(1) to disregard the nominee of the landlord, in the event of District Magistrate's failure in making an allotment order within 21 days from the date of the receipt of the communication of the vacancy or expected vacancy of the accommodation, shall be exercised very sparingly and only for a public purpose. 5. Let us now advert to the order of allotment passed in this case. No reason whatsoever has been assigned in the order of allotment. In it there is a recital that the landlord refused to accept the notice. This notice was sent to him by registered post. 5. Let us now advert to the order of allotment passed in this case. No reason whatsoever has been assigned in the order of allotment. In it there is a recital that the landlord refused to accept the notice. This notice was sent to him by registered post. This order says that the need of Sri Narendra Kumar is considered to be genuine and, therefore, the accommodation in question it being allotted to him, It will be seen that in the order there is not even a whisper for attracting the provisions of Rule 10(7). No attempt has been made to explain as to why the landlord is being denied an opportunity of nominating his tenant. The order of allotment is, therefore, ex facie bad, without jurisdiction and it is liable to be set aside. 6. The revisional Court has introduced a peculiar notion of the power conferred upon it. According to it, in the exercise of its power it has a discretion to interfere or not to interfere. The revisional court has declined to interfere as the order of allotment was passed just one day after, namely 22nd day. It has misconstrued and misapplied the provisions of Section 18 of the Act. The provisions of Section 18, so far as the scope of the revisional powers are concerned, are analogous to those contained in Section 115 of the Code of Civil Procedure. The District Supply Officer acted without jurisdiction in passing the order of allotment in question. It was and is not the case of any body that it was in the public interest that this accommodation in question should be allotted to the Respondent No. 1. The contents of the order of allotment indicate that the same was passed in a routine manner. In these circumstances, the revisional court failed to exercise a jurisdiction vested in it by law in not interfering with the order of allotment on the ground that there was a technical breach of the provisions of Section 17 of the Act. The revisional Court ignored the fact that the act of the District Supply Officer in passing the order of allotment on 22nd day resulted In a grave injustice to the landlord. 7. The writ petition succeeds and is allowed. The order dated 17-8-1979 passed by the District Supply Officer, Jaunpur allotting the accommodation in dispute to the Respondent No. 1 is quashed. 7. The writ petition succeeds and is allowed. The order dated 17-8-1979 passed by the District Supply Officer, Jaunpur allotting the accommodation in dispute to the Respondent No. 1 is quashed. The order dated 24-1-1980 passed by the District Judge, Jaunpur dismissing the revision No. 171 of 1979 preferred by the Petitioner is also quashed. The District supply Officer shall no-v pass a fresh order of allotment in the light of the observations made above, The parties are directed to bear their own costs.