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2014 DIGILAW 114 (UTT)

JAGDISH PRASAD VERMA v. JUDGE, FAST TRACK COURT

2014-03-25

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J (Oral). Present petition is moved assailing the judgment and order dated 06.08.2003 passed by Additional District Judge / 2nd FTC, Haridwar whereby Revisional Court was pleased to set aside the order dated 29.07.1994 whereby shop, in question, was allotted in favour of the petitioner, herein and was further pleased to direct the RC & EO to pass allotment order in favour of respondent no. 2. 2. Brief facts of the present case inter alia are that landlord of shop Trilok Singh got released the shop, in question, and vacant possession was handed over to the him on 16.07.1987 in a proceeding under Section 21 of the U.P. Act No. 13 of 1972. Trilok Singh/landlord remained in occupation of the shop, in question, till 05.07.1991 and on 05.07.1991, landlord intimated the District Magistrate, Haridwar that shop had fallen vacant and therefore, same could be allotted to the eligible one. Petitioner moved an application seeking allotment of the shop, in question, on 12.07.1991. 3. As per case of the respondent no. 2, respondent no. 2 applied for allotment of shop, in question, on 20.03.1991, i.e. much much prior to the vacancy was notified/informed to the District Magistrate by the landlord. 4. Since no allotment order was passed by the District Magistrate within 21 days after 05.07.1991 from the date vacancy was notified, therefore, the then landlord made nomination in favour of the petitioner, herein, on 30.07.1991 and pursuant to the nomination made under the Section 17 of the Act, learned RC & EO was pleased to allot the shop, in question, in favour of the petitioner, herein, vide order dated 29.07.1994. 5. Feeling aggrieved, respondent no. 2, herein, filed revision being Rent Control Revision No. 29 of 1994 before District Judge, Haridwar under Section 18 of the Act, which was heard and decided by the Revisional Court vide judgment and order dated 06.08.2003, impugned herein. 6. Heard Mr. M.C. Bansal, Advocate for the petitioner and Mr. Rajendra Dobhal, Sr. Advocate for respondent no. 2. 7. As per Section 15 of the Act, landlord is duty bound to intimate the vacancy to the District Magistrate and in the present case, vacancy was intimated to the District Magistrate by the landlord / Trilok Singh on 05.07.1991. 8. 6. Heard Mr. M.C. Bansal, Advocate for the petitioner and Mr. Rajendra Dobhal, Sr. Advocate for respondent no. 2. 7. As per Section 15 of the Act, landlord is duty bound to intimate the vacancy to the District Magistrate and in the present case, vacancy was intimated to the District Magistrate by the landlord / Trilok Singh on 05.07.1991. 8. Section 17 of the U.P. Act No. 13 of 1972 reads as under: “Conditions of making allotment order: (1) Where the District Magistrate receives an intimation, under sub-section (1) of Section 15, of the vacancy or expected vacancy of a building, any 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 choice, and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination: Provided that where the landlord has made an application under clause (b) of sub-section (1) of Section 16, for the release of the whole or any part of the building or land appurtenant thereto in his favour, the said period of twenty-one days shall be computed from the date of decision on that application or where an application for review or an appeal is filed against such decision, from the date of decision on such application or appeal. (2) Where a part of a building is in the occupation of the landlord for residential purposes, or is released in his favour under clause (b) of sub-section (1) of Section 16 for residential purposes, the allotment of the remaining part thereof under clause (a) of the said sub-section (1) shall be made in favour of a person nominated by the landlord. [Explanation.—Where a building in the occupation of the landlord for residential purposes adjoins (whether horizontally or vertically) the building sought to be allotted, and— (a) there is a common entrance to or a common passage for both the buildings; or (b) the two buildings share the sanitary conveniences or other amenities (not including electric connection); then notwithstanding that the two buildings are independently fit for residential purposes, they shall be deemed to be part of each other for the purposes of this sub-section.” 9. As per section 17, if allotment order is not passed by RC & EO within 21 days from the date of receipt of intimation of vacancy, then landlord has right to nominate a person of his choice and in the event of making nomination by landlord after expiry of 21 days from the date of intimation, RC & EO shall pass order of allotment in favour of nominee. 10. Undisputedly, vacancy was, for the first time, intimated, under Section 15 of the Act to the District Magistrate, on 05.07.1991 and no order of allotment was passed under Section 16 of the Act within 21 days from 05.07.1991, therefore, as per Section 17 of the Act, a valuable right accrued in favour of the landlord to nominate a person of his choice and by exercising his right, so accrued in his favour under Section 17 of the Act, landlord had nominated the petitioner vide application dated 30.07.1991, therefore, RC & EO was well within his jurisdiction in passing the order of allotment in favour of the petitioner, which was wrongly set aside by the Revisional Court on the ground that first application for allotment was moved by respondent no. 2. 11. Law does not provide that first of all, order should be passed on the application moved first for allotment and thereafter, nomination has to be made applicable. Rather Section 17 of the Act mandates that if no allotment order is passed for whatsoever reason within 21 days, a valuable right accrue in favour of the landlord to nominate a person of his choice. 12. In view of the above, writ petition is allowed. Impugned judgment and order dated 06.08.2003 is set aside. Order dated 29.07.1994 passed by RC & EO is restored. Shop, in question, stands allotted in favour of the petitioner. No order as to costs.