PRABHU MAL Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition arises out of proceedings under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (here inafter referred to as the Act.) The dispute relates to house No. 297-F Begam Ward, Pratapgarh. One Daryanamal was the tenant of the accommodation in dispute of which the 3rd respondent, Saheb Singh is the landlord. Daryana Mai built his own house. By an application dated June 8, 1970 he informed the respondent No. 2, the Rent Control and Eviction Officer, Paragraph that he would be shifting to his own newly built house but the accommodation to be vacated by him should not be allotted to any one as the petitioner, his nephew, who was living with him since long, would continue to occupy it. The petitioner also made a sepa rate application for allotment and on the following day, i.e., on June 9, 1970 the respondent No. 2 passed the following order of allotment: -

(2.) THE landlord, on coming to know of the allotment order, made an ap plication on June 19, 1970 saying that he needed the accommodation for his personal use and the same should be released in his favour. He also stated that similar application had been made by him earlier which remained indisposed of as Daryana Mai compromised that on the completion of his house he would handover the possession to him. The petitioner contested this application. Thereupon, the landlord mov ed another application dated July 14, 1970 alleging that the petitioner and Daryana Mai, who are the members of the same family, had con cealed the fact of the previous compromise and had obtained the allotment order by fraud and misrepresentation and the same should be cancelled. The Rent Control and Eviction Officer by his order dated October 5, 1970 rejected the release application of the landlord holding that the petitioner was not guilty of any fraud or misrepre sentation and it was not expedient to evict him under Section 7-A and then to notify the vacancy. Thereupon the landlord approached the State Government under Section 7-F of the Act. The State Gov ernment has allowed the revision of the landlord, has cancelled the allotment order in favour of the petitioner and has remanded the case to the Rent Control and Eviction Officer to consider and dispose of the landlord's application for release and if the need of the land lord is not found to be genuine to notify a vacancy and to invite ap plications for allotment and thereafter to pass an order of allotment. The petitioner is aggrieved and has challenged this order of the State Government by this petition.

(3.) UNDER Rule 6 of the Rent Control and Eviction Rules a landlord has been given the right to ask for the release of his house which has fallen vacant or is likely to fall vacant on the ground that he bona -fide needs the house for his personal occupation. When such an applica tion is made all that the Rent Control and Eviction Officer has to see is that the request of the landlord for personal occupation is a bona fide request. Once he finds that the need of the landlord is genuine and bona fide he has no option but to release the accommodation in favour of the landlord. At this stage since there is no sitting tenant involved, the question of assessing the need of the landlord or com paring it with the need of a prospective tenant does not arise. This is a settled view of this Court., (See: Ram Surat Singh v. Rent Control and Eviction Officer A.I.R. 1965 Alld. 49 (F.B.)). Ordinarily, an application under Rule 6 must be pending before proceedings under Section 7 of the Act are taken. But that can happen only if the landlord comes to know of the vacancy of the expected vacancy. Cases might arise where the landlord is kept in dark about the vacancy or the expected vacancy and the accommodation is allotted to another tenant. Unfortunately there is no provision in the Act requiring the vacancy or expected vacancy to be sotified so that the landlord may re quire the necessary knowledge. Indeed, this Court in State of U. P. v. Smt. Shiama Devi 1957 A.L.J. 630, has held that Rule 6 of the U. P. (Temporary) Control of Rent and Eviction Act does not impose a duty on the Rent Control and Eviction Officer when an accommoda tion falls vacant of informing the landlord of the existence of the vacancy and of ascertaining whether the latter desires that the pre mises be released in his favour. The right of the landlord to have the accommodation released in his favour arises when it is asserted. In Sangam Lal v. Commissioner, Allahabad Division 1959 A.L.J. 69-Summary, a learned Judge of this Court has held that it is not necessary to hear the land lord before an order of allotment under Section 7 (3) is made. Now this creates anomalous position. If the landlord does not become aware of this vacancy or of expected vacancy an allotment order may be made in favour of another .person without affording the landlord an opportunity of asserting his right of release under Rule 6. But such a situation is not likely to arise because normally a sitting ten ant's tenancy does not come to an end unless he gives an intimation to the landlord and hands over possession to him of the house which he wants to vacate as is provided under Section 106 (A) (q) of the Transfer of Property Act. In the instant case, this course was not followed by the outgoing tenant Daryana Mai. He did not inform the landlord of his intention to vacate the house but surreptitiously sent an intimation to the Rent Control and Eviction Officer to regularise the possession of the petitioner. In such circumstances it was open to the landlord to make an application for release when be came to know of the vacancy and to ask for the cancellation of the allotment order which had been made without affording him an opportunity of getting the house released in his favour.