SYED AJAZ ALL KHAN Vs. MOHAMMAD RAFIA

JUDGEMENT

(1.) THIS re ference to a Full Bench arises out of a special appeal filed against an order of a learned Single Judge who, placing reliance upon a decision of a Division Bench of this Court in Krishna Chandra Sharma v. State of U. P., 1962 All U 426, allow ed the writ petition in part. The Divi sion Bench, which heard the special ap peal, felt that the decision in Krishna Chandra Sharma's case required re consideration and it has. therefore, re ferred the following question for the con sideration of this Full Bench -

(2.) IN Krishna Chandra Sharma's case, 1962 All LJ 426 the original order of allotment was made in favour of one person and when that order was cancel led subsequently by the District Magis trate, the accommodation was split up into two separate portions and while one portion was re-allotted at favour of the original allottee, the second portion was ordered to be let out to another person. On the filing of a revision petition by the original allottee, the State Government, acting Tinder Section 7-F of the U, P. (Temporary) Control of Rent and Evic tion Act. 1947 (hereinafter referred to as the Act), cancelled both the allotment orders and allotted the whole accommo dation in favour of the original allottee, who applied for initiation of proceedings under Section 7-A (1) of the Act for the eviction of the second person on the ground that he was in occupation of the accommodation in contravention of the order missed by the State Government under Section 7-F in relation to an order passed earlier by the District Magistrate under sub-section (2) of Section 7. On these facts, two Questions of law were canvassed before the Division Bench CM. C. Desai C. J- and S. D. Singh J.) In that case. The first question was whe ther a person, who is In occupation of an - accommodation on the basis of an order passed by a District Magistrate under sub section (2) of Section 7 of the Act can be said to be In occupation 'in contravention of the said order1 in the sense in which these words occur in sub-section CIV of Section 7- A, if the State Government, exercising its powers under Section 7-F, subsequently cancels it and allots the accommodation in favour of another per son. The question was answered in the negative and it was held that such a per son would on the contrary be a person in occupation of the accommodation under an order passed under sub-section (2) of S. 7, The second question was whether in the circumstances stated above, a notice under sub-section (11 of Sec-Son 7-A can be Issued against the person In occupation, that Is to say. against a person who is in occupation in consonance with an order passed by the District Magistrate under sub-section -(2) of Sec tion 7 but In contravention of the order passed by the State Government under Section 7-F. After Quoting sub-sec. (IT of Section 7-A and adopting the Delmarva rule of literal construction, the Division Bend) answered this second Question, to use its own language, in the following terms;

(3.) THE ratio of these two deci sions, thus, is: firstly, that an order of allotment can be passed only by a Dis trict Magistrate secondly, that the making of such an order is beyond the competence of the State Government and thirdly, that Section 7-A (1) comes into play only if a person Js found to be in occupation of an accommodation in contravention of an order passed by a District Magistrate under sub-section (2) of Section 7 and that it is not attracted if such a person Is In occupation of the accommodation in contravention of an order passed by the State Government under Section 7-F. In short these decisions are to the effect that the powers of the State Government under Section 7-F are limited to bare confirming or reversing, or may be vary-tog. of the order passed by a District Magistrate and does not extend to the passing of a different order altogether in He shape of cancelling an order of allot ninety and making another order of allot ment itself, or cancelling an order of al lotment and releasing the accommodation In favour of the landlord and so forth and so on.