JAFRA KHATOON Vs. DISTRICT MAGISTRATE ALLAHABAD

JUDGEMENT

(1.) THIS Execution Se cond Appeal has been filed by the judgment debtors. The facts relevant for the determination of this appeal are that the District Magistrate of Allahabad respondent No. 1 passed an order under Section 3 of the U. P. (Temporary) Ac commodation Requisition Act No. XXV of 1947 (hereinafter referred to as the Act) on October 15. 1969 whereby he requisitioned portion of premises No. 34-A. Nawab Yusuf Road which were occupied by Smt. Jafra Khatoon as a tenant. The District Magistrate was fur ther of the opinion that an alternative accommodation within the meaning of the last proviso to Section 3 aforesaid was available for being provided to Smt. Jafra Khatoon being portion of premises No. 179 Allengani. Allahabad. The said accommodation was allotted to Smt. Jafra Khatoon. The order of re quisition was challenged by Smt. Jafra Khatoon in a writ petition (Civil Misc. Writ No. 4278 of 1969). The writ peti tion was however dismissed on Febru ary 18. 1970. Since Smt. Jafra Khatoon had failed to comply with the order of requisition the District Magistrate res pondent No. 1 made an application to the Munsif West, Allahabad under Sec tion 11 of the Act for the execution of the order passed by him under Section 3 of the Act as aforesaid Smt. Jafra Khatoon filed an objection which was dismissed and the appeal filed there from by her also failed. Thereupon she filed this Execution Second Appeal. Jafra Khatoon died during the pendency of the appeal and her legal representa tives have been substituted.

(2.) WHEN the appeal was pending before the lower appellate Court cer tain documents were filed as additional evidence and were accepted. One such document was the report of Senior Ins pector (Rent Control) dated May 20, 1970 wherein it was mentioned that he made spot inspection of the portion of premises No. 179. Allenganj Allahabad allotted to Smt. Jafra Khatoon as an alternative accommodation in the morn ing of May 20. 1970 and found that even though the accommodation in Question existed intact the tiles of the rooms and the verandah etc. had been removed by the landlord. On the basis of his report it was urged before the lower appellate Court that since the alternative accommodation had been rendered uninhabitable by its landlord the judgment-debtor could not be elect ed in execution of the order passed under Section 3 of the Act. This objec tion however, did not find favour with the learned Additional District Judge end he dismissed the execution first appeal.

(3.) THE argument of learned counsel for the appellants that the al ternative accommodation allotted having become uninhabitable the appellants could not be ejected has. however sub stance. Under the last proviso to Sec tion 3 of the Act it is incumbent upon the District Magistrate to provide an alternative accommodation to the per son occupying the accommodation which has been requisitioned in case such per son did not already have an alterna tive accommodation. In the instant case, the District Magistrate was satisfied that no alternative accommodation already existed for the needs of Smt. Jafra Khatoon and that she had to be provid ed for .with an alternative accommoda tion. On this view a portion of 179. Al lenganj was allotted to her. Consequent ly the order of requisition imposed ob ligations on both sides which were so conditioned that the performance by one was conditional on performance by the other. Section 11 of the Act lays down that if any person failed to com ply with any order made under Sec. 3 the court shall on the application of the District Magistrate execute the order as if it was a decree passed by that court. The word court as defined by Section 2 (b) of the Act means the court of Munsif and where there is no Munsif. the court of Civil Judge in whose territorial jurisdiction the ac commodation lies. On an application having been made by the District Ma gistrate respondent No. 1 under Sec. 11 in the court of the Munsif, West Alla habad for the execution of the order the position of respondent No. 1 was that of a decree-holder whereas that of Smt. Jafra Khatoon that of a iudgment-debtor In Jai Narain v. Kedar Nath, (AIR 1956 SC 359) it was held:-