KATHER DUTT Vs. DISTRICT MAGISTRATE LUCKNOW

JUDGEMENT

(1.) THIS is an application by one Mrs. Kather Dutt under Section 115, Civil P. C. arising under the following circumstances: there is a Bungalow No. 13, Ashoka Marg, Lucknow of which at one time Mr. and Mrs. Hanson were the tenants. They were treated as tenants but it appears that they did not get this accommodation by allotment and therefore in the year 1951 proceedings under Section 7a, U. P. Rent Control and Eviction Act, were taken against them. It then transpired that Mrs. Kather Dutt, the present applicant, was the occupier of the building within the definition of word 'occupier' in the U. P. Rent Control and Eviction Act and. therefore the proceedings were dropped. On 28-10-1952, a notice was served on the applicant under the U. P. (Temporary)Accommodation Requisition Act, (25 of 1947), under Section 3 requiring the applicant to deliver possession to the District Magistrate within a period of 16 days. In that notice the District magistrate fail-ed to provide any 'suitable accommodation' to the applicant as required by the mandatory provision of Section 3, Proviso 2. Thereupon a writ application in this Court was filed and it was conceded that since the provisions of the Act were not complied with, the notice was bad. The writ was decided, in january 1954. After the decision of this application another notice dated 9-3-1954 was served in march 1954 under 8. 3 of the aforesaid Act and in that notice it was mentioned that she was being pro-vided with an accommodation at 5, Rutledge Road, Lucknow. The applicant did not avail this accommodation nor did she, as required under the notice, vacate the premises, 13 Ashoka Marg, Lucknow, on the 16th day as required therein. The District magistrate took proceedings for ejectment as required under Section 11 of the said Act. To that execution objection was taken under Section 47, Civil P. C. and the applicant, 'inter alia', pleaded that the order of the District Magistrate was mala fide; that the order of the District Magistrate was not capable of execution; that the suitable accommodation offered was not vacant.

(2.) THE learned Munsif came to the conclusion that the opinion of the District. Magistrate would alone decide whether an alternative accommodation exists or not. He was the sole Judge to consider the suitability of the accommodation and the Civil Court could not go into the question of the suitability of the accommodation. He further held that though the alternative accommodation provided was not as good as the one in which the applicant Was residing yet it was not an unsuitable accommodation. He also held that the order of the District Magistrate was not mala fide; that the accommodation at the time when it was offered was vacant and on these findings he 'dismissed the objections of the applicant.

(3.) AGGRIEVED with this decision the applicant has come up to this Court in revision. It has been argued that the learned Munsif acted illegaily and with material irregularity in holding that the civil Court had no jurisdiction to go into the question of the suitability of accommodation and it was further argued that the finding arrived at by the learned Munsif on the question whether the accommodation was suitable or not was in utter disregard to the evidence on the record. It was further argued that the applicant had applied on 19-2-1955 and an application war made on her behalf to be examined on commission and the learned Munsif acted again illegally and with material irregularity in not allowing that application. The constitutionality of the Act was challenged on the ground that it infringed Article 31 of the Constitution and it was further argued that since Section 3 has given an unfettered discretion to the District Magistrate about the decision of the suitability of the accommodation the Act would be ultra vires the legislature. It was further contended that the order was a mala fide one.