RASHID Vs. VI ADDITIONAL DISTRICT AND SESSIONS JUDGE

JUDGEMENT

(1.) IN this case a piquant situation has arisen inasmuch as the writ petition omits vital facts and also does not mention some dates which would have been crucial for deciding the petition. The difficulty has been further aggravated by the Respondents not choosing to file a counter affidavit. The controversy involved in the case relates to the interpretation of some important provisions of U.P. Act No. 13 of 1972 (hereinafter to be referred to as the Act). This raises interesting questions of law which, however, cannot be completely adjudicated without entering into a modicum of facts. An attempt has been made by me to glean all relevant material from the two orders, one of which has been impugned by the Petitioner. On the basis of such skeleton facts the possible questions of law which would arise can be dealt with and guidelines with regard to their legal aspects can be indicated, though for the final adjudication on the factual part a remand of the case cannot be avoided.

(2.) BRIEFLY stated the facts are that Jagannath Respondent No. 3 is the landlord of the shop in question which was originally in the tenancy of one Karim Bux. A suit for ejectment was filed against him and during the pendency of the suit he died and thereafter one Shabbir (Respondent No. 4) son of Babu and Smt. Hafizan (wife of Abdul Aziz) were substituted as his legal representatives and they became tenants -in -common of the disputed shop. The suit for ejectment was decreed, though the legal representatives of Karim Bux contested the case upto the High Court which gave a decision against them on 8 -11 -1976. The decree for ejectment was not put to execution but in the meantime the Petitioner Rashid (now substituted by Smt, Sakina) applied for allotment of the shop and an allotment order was actually passed in his favour on 28 -1 -1977. The landlord came to know about it when notice was served on him on 3 -2 -1977 and he filed a review application on 7 -2 -1977 on the allegation that in order to defeat the decree of ejectment the successors -in -interest of the original tenant, namely, Shabbir and Smt. Hafizan continued to occupy the accommodation and got a collusive application for allotment moved by the Petitioner Rashid, who was the brother -in -law of Shabbir. It was alleged that this had been done in order to circumvent the landlord's attempt to get the shop released in his own favour and the Inspector of the Rent Control Department also had submitted a false report in collusion with the allottee and the sitting tenant. The landlord filed a review application with the allegations that Shabbir had neither given any intimation of vacancy nor delivered possession to him, that the shop in dispute was really not vacant nor likely to fall vacant, that Shabbir and the Petitioner Rashid played fraud on the allotting authority by concealing the fact that the Petitioner was related to Shabbir and in such circumstances the allotment order had been fraudulently secured. It was, therefore, prayed that the allotment order be cancelled and the shop be released in favour of the landlord. As already mentioned, the landlord had filed the review application on 7 -2 -1977. It appears that on the same date he had also made an application for release of the shop in his own favour and supported this application by filing an affidavit.

(3.) THE main question which has been canvassed before me is as to whether on the facts of the case it could be held that the shop in question had become vacant or was about to fall vacant. Obviously in the event of a finding that no such situation either of being vacant or likely to fall vacant had arisen the allotment order cannot be sustained. On the other hand, if these conditions precedents were satisfied the allotment order would be valid. Another allied question to which scant attention appears to have been paid by the first authority and the revisional court is that a specific allegation had been made by the landlord that the allotment order had been fraudulently secured and the allottee had been set up by the successor -in -interest of the original tenant and it was merely a device to avoid the eviction decree. I am inclined to lay great stress on this aspect of the case because in my opinion no judgment debtor should, as far as the ends or justice can effectuate, be allowed to succeed in taking recourse to the subterfuge of allotment and make an ejectment decree passed by a regular court ineffectual. I can find no justification for the fact that in the impugned order no finding has been recorded on this specific allegation. The first authority in a very facile and casual manner assumed that there was no fraud without considering the allegations made and the facts and circumstances of the case which on an over -all consideration alone could have enabled that authority to decide correctly as to whether the allotment order was vitiated by fraud or not. Prima facie, unless there is a categorical finding that there was no relationship between one of the tenants -in -common (judgment -debtor) and the person set up for obtaining the allotment order, the nexus between the two would be too proximate not to invite a finding that the object of the allotment was to render ineffective the decree of eviction. However, the matter has to be investigated thoroughly on facts and it is only after scrutiny of the entire material and such evidence as may be adduced by the parties that it can be decided as to whether fraud had been committed. The law is very well settled that an allotment order cannot be validly passed if it is secured by collusion or fraud. It is also well settled both 'on general principles of natural justice and the specific provisions of the Rent Control Act that no allotment order should be passed without notice to the landlord and without hearing him. The same principle is enshrined in Clause (5) of Section 16 of the Act which permits the landlord to apply for review and in case he is able to satisfy the authority concerned that the order of allotment was not passed in accordance with law, such authority may review the order. It is significant that in the instant case there is no clear finding as to whether notice was served on the landlord before passing of the allotment order. The District Supply Officer does refer to the chequerd history of the case before an attempt was made to serve the landlord but ultimately it has not been conclusively decided as to whether the landlord had eventually been served with a notice or not and if so, at what stage. That again is a question which calls for decision by the relevant authority after remand.