SURAJ PAL GUPTA Vs. DISTRICT JUDGE ALIGARH

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution arising out of proceedings under the U. P. (Temporary) Control of Rent and Eviction Act, hereinafter referred to as the Act.

(2.) THE dispute relates to an accommodation of which the 3rd respondent, Chitar Mal, is the owner. The accommodation was previously in the tenancy of one Panna Lal where he was running a small flour mill and oil expeller. The landlord filed a suit against him and obtained a decree for ejectment. The decree was put in execution and the entire machinery and the flour mill and oil expeller was purchased by the petitioner. He started running the flour mill and obtained a licence on 23rd March, 1972 from the District Supply Officer for that purpose. In other words, the accommodation came in possession of the petitioner. The petitioner then applied for the allotment of the accommodation to him under Section 7 of the Act. The landlord contested the application on the ground that the accommodation had not fallen vacant. During the pendency of the application the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (hereinafter referred to as the new Act) came into force with effect from 15th July, 1972. By virtue of the provisions contained in Section 43 (2) (b) of the new Act, further proceedings for allotment had to be continued in accordance with the provisions of the New Act. The Rent Control and Eviction Officer, Aligarh, however, continued the proceedings under the old Act and rejected the application of the petitioner on the ground that as no Perwana of ejectment had been issued against the old tenant, there was no legal vacancy and, as such, allotment could not be made in favour of the petitioner. This order was passed on 18th August, 1972 after the new Act had already come into force. Against this order the petitioner went up in appeal before the District Judge, Aligarh. The District judge rejected the appeal on the ground that under Section 7 of the old Act the Rent Control and Eviction Officer had the power to make an order of allotment in anticipation of a vacancy but he was not obliged to do so. According to him there was nothing in the U. P. Act No. 3 of 1947 which obliges the District Magistrate to allot an accommodation when there is merely a possibility of a vacancy and, therefore, when the Rent Control and Eviction Officer did not choose to make an order of allotment he committed no illegality.

(3.) THAT apart, the order of the Rent Control and Eviction Officer as also of the District Judge suffer from another legal infirmity. As already noticed above, the new Act had come into force while the application of the petitioner was pending before the Rent Control and Eviction Officer. Section 43 (2) (b) provides that any application or proceedings pending immediately before the commencement of this Act before the District Magistrate under Section 7 of the old Act or under Rule 6 of the Control of Rent and Eviction Rules shall be disposed of by him in accordance with the provisions of Section 16 of this Act. Section 16 (a) provides that the District Magistrate may require the landlord to let out any building which is or has fallen vacant or is about to fall vacant, so that Section 16 also contemplates of an allotment in anticipation of a vacancy. Then there is Section 12 in the new Act which provides for deemed vacancy of buildings in certain cases. Sub-section (1) of Section 12 says:-