SURAJ NARAIN Vs. THE DISTRICT MAGISTRATE AND ORS.

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution on behalf of Suraj Narain who claimed to be an allottee of a two room shop in premises No. 49/62, Nayaganj, Kanpur. The original prayer in the petition was that a writ of certiorari be issued quashing the order of 1st April, 1954, passed by the District Magistrate Kanpur and also the order of 3rd April, 1954, passed by the Rent Control and Eviction Officer, Kanpur. It was further prayed that a writ of mandamus be issued to command the opposite parties Nos. 1 and 2 restore the allotment order dated the 18th of November, 1953, passed in favour of the Petitioner. During the pendency of the writ petition, it appears that the shop was allotted by an order passed by the Rent Control and Eviction Officer dated 8th January, 1955, in favour of the firm Harswarup Chandradeo and consequently an application was made for impleading the firm Harswarup Chandradeo through their partners, Harswarup, Chandradeo and Ram Swarup as opposite party to the present petition. It was further prayed that a further relief be granted to the applicant in the nature of a writ of certiorari quashing the order of allotment in favour of the opposite party No. 6. By an order dated 29th April, 1955 of this Court the prayer asking for impleading the firm Harswarup Chandradeo as an opposite party and for adding a relief of certiorari quashing the order of allotment was granted.

(2.) THE facts, which are set out in the affidavit filed in support of the petition and which are not substantially controverted by the opposite parties, are that on the 18th of November, 1953, the shop in dispute was allotted to the applicant Suraj Narain. Ram Pratap Sharma, opposite party No. 3, had an allotment order, in his favour which was passed sometime in January, 1953. He applied for delivery of possession of the shop. Sarveshwar Prasad Radha Kishan, who were in possession of the shop prior to the allotment in favour of Ram Pratap Sharma, made two applications in revision before the Commissioner on the 19th January, 1953, against the order of the Rent Control and Eviction Officer dated 7th Jan., 1953 allotting the shop to Ram Pratap Sharma. The revisions were dismissed and after the dismissal of the revisions by the Commissioner on the 29th September, 1953, Ram Pratap Sharma applied for delivery of possession through police aid. On this 22nd October, 1953 was fixed for orders. The Rent Control and Eviction Officer there -upon fixed 9th November, 1953 for orders and it was found that the file was not traceable and the case was adjourned to 23rd December, 1953, Ram Pratap Sharma, in the meantime, applied to the District Magistrate for delivery of possession to him as he could not obtain possession under the allotment order in his favour. It was also pointed out to the District Magistrate that the order of allotment in favour of Suraj Narain was obtained by misrepresentation of certain facts. The District Magistrate called for a report from the Rent Control and Eviction Officer. The report has been filed along with the application as Annexure B and in that report the Rent Control and Eviction Officer has sent out all the circumstances and on a perusal of the report it appears that he has found that the allotment order in favour of Suraj Narain was obtained by misrepresentation. All the facts were not before the Rent Control and Eviction Officer which would show that the premises were not vacant but in his report he has said that if the allotment in favour of Suraj Narain was to be cancelled, it would lead to complications and litigation. He submitted all the papers for necessary orders to the District Magistrate and he asked the District Magistrate to pass final orders himself. The District Magistrate passed an order saying that the allotment order in favour of Ram Pratap Sharma was a valid allotment order and the allotment in favour of Suraj Narain, the applicant, appeared to have been obtained on certain misrepresentation of facts. He, therefore, was of opinion that the allotment in favour of Suraj Narain should be cancelled and possession be given to Ram pratap Sharma. After the order of the District Magistrate, the Rent Control and Eviction Officer, on the 3rd April, 1954 passed an order cancelling the allotment in favour of Suraj Narain and directing him to deliver possession to Ram Pratap Sharma. Against these two orders, the present writ petition was filed. During the pendency of the petition, delivery of possession to Ram Pratap was at first stayed but by a subsequent order the interim order was vacated and as a consequence of that, possession was obtained by Ram Pratap Sharma. Subsequently Ram Pratap Sharma vacated the premises and he applied to the District Magistrate that he was intending to vacate the shop and that it be sublet to firm Harswarup Chandradeo. It was in these circumstances that the allotment was made on the 8th January, 1955 in favour of the firm Harswarup Chandradeo. The question whether the shop was in possession of Sarveshwar Prasad Radha Kishan and not Suraj Prasad is a matter which need not be considered in these proceedings. The main 'contention of the applicant is that the order of the Rent Control and Eviction Officer dated 3rd April, 1954 should be quashed as it has been passed at the instance of the District Magistrate. It is further contended that the order of 1st April, 1954 passed by the District Magistrate is without jurisdiction. The District Magistrate has concurrent jurisdiction with that of the Rent Control and Eviction Officer. He has no right to sit in appeal against an order of the Rent Control and Eviction Officer. He has, therefore, no power to set aside the order passed by the Rent Control and Eviction Officer. No objection can be taken to this proposition of law. The District Magistrate has no power to sit in appeal against an order of the Rent Control and Eviction Officer but the District Magistrate, as a superior officer, can always suggest to the Rent Control and Eviction Officer to reconsider an order passed by him and also to give his opinion about the facts. If, acting on that suggestion, the Rent Control and Eviction Officer reconsiders the matter, applies his independent mind to the question, it cannot be said that the order of the Rent Control and Eviction Officer passed subsequently is without jurisdiction. The applicant by merely getting, a relief quashing the order of the District Magistrate can get no benefit; unless the order of the Rent Control and Eviction Officer dated 3rd April, 1954 is set aside and in order to set aside the order of the 3rd April, it will have to be considered whether that order has been passed by the Rent Control and Eviction Officer himself or has been passed by the District Magistrate and secondly whether in passing the order the Rent Control and Eviction Officer applied his mind independently to the question. Reliance has been placed on the case of Mahabir Prasad v. The District Magistrate, Kanpur, 1955 A.W.R. (H.C.) 384 That is a case where the Rent Control and Eviction Officer had made an order of allotment. The allottee, in pursuance of that order, had entered into possession of the allotted premises. The landlord then made an application to the District Magistrate that the order of allotment should be cancelled and the District Magistrate cancelled the order of allotment. A petition was filed in this Court challenging the order of the District Magistrate cancelling the order of allotment and it was held by this Court that the order of cancellation could only be passed by the Rent Control and Eviction Officer himself, and it could not be passed at the instance of the District Magistrate. It was held in that case that an order of allotment is an administrative order and can be cancelled by the officer who had passed the order and it was not open to a superior officer, who had a concurrent jurisdiction, to set aside the order of allotment passed by a subordinate officer. It was, however, observed at page 256 of the Report that - -

(3.) THE question has to be determined on the facts of each case whether having regard to the circumstances of the case it can be said that the discretion has not been exercised by the Rent Control and Eviction Officer or he has not applied his mind to the facts of the case and has only transmitted the order passed by the superior officer. From a perusal of the report of the Rent Control and Eviction Officer it will appear that he was inclined to the view that the allotment order in favour of Suraj Narain was obtained by misrepresentation. Certain essential facts, which were necessary before an allotment could be made in favour of Suraj Narain, were not brought to his notice but he was doubtful whether he had power to cancel the allotment order in favour of Suraj Narain and in order to resolve that doubt he placed the matter before the District Magistrate. The District Magistrate only pointed out to him that he could pass an order directing Suraj Narain to deliver possession to Ram Pratap Sharma and to cancel the allotment in favour of Suraj Narain. The District Magistrate said that Ram Pratap Sharma should be put in possession and the allotment order in favour of Suraj Narain should be set aside but nonetheless it was the Rent Control and Eviction Officer who passed an order cancelling the allotment in favour of Suraj Narain. He did apply his mind to that question and passed an order cancelling his previous order. It cannot therefore, be said that the order of the Rent Control and Eviction Officer was without jurisdiction. It was then contended that Suraj Narain, having entered into possession, the allotment order in his favour could not be cancelled. In the case relied upon by the Petitioner it was decided by this Court, that in cases where an allottee has entered into possession, the allotment can be cancelled, provided it had been obtained by misrepresentation. The question whether it had been obtained by misrepresentation or not is a question of fact and this Court cannot go into this question in a writ petition. Apart from this, the shop having been allotted to the opposite party No. 6, the relief for cancellation of the order of the District Magistrate dated 1st April, 1954 has now become infructuous and the main question to be considered will be whether the fresh allotment order dated 8th January, 1955 passed in favour of the opposite party No. 6 can be quashed on any ground. In the petition filed for impleading opposite party No. 6 to the petition, no fresh facts have been given. The only prayer is that the relief be amended. The question, therefore will be whether on the facts set out in the affidavit filed originally in support of the petition any case for quashing the order of allotment in favour of the opposite party No. 6 has been made out or not. On the date when the allotment in favour of the opposite party No. (sic) was made, admittedly Ram Pratap Sharma had entered into possession and he was going to vacate it. Suraj Narain was out of possession. It cannot, therefore, be argued that the premises were not vacant on the 8th January, 1955 and that the Rent Control and Eviction Officer had no jurisdiction under Section 7 to make the allotment. The only argument, which has been advanced in support of the contention that the allotment order of the 8th January, 1955 is invalid is that all this happened during the pendency of the writ petition. The fact that a third party's interest came into existence during the pendency of the writ petition, will not render the order of allotment in favour of the third party invalid. In cases where the first allottee enters into possession and there is no question of mis -representation or fraud so as to make the order of allotment in his favour invalid, any subsequent allotment made in favour of a third party may be set aside on the ground that the premises were not vacant on the date when the subsequent allotment was made. In the present case admittedly the premises were vacant on the 8th January, 1955 when the allotment order was made in favour of the opposite party No. 6. It was then argued by the counsel for the Petitioner that the allotment in favour of the opposite party No. 6 should be quashed as it may have been obtained on misrepresentation. No facts are set out in the affidavit to show that the order was obtained by misrepresentation.