SHRI KRISHAN LAL MEHRA Vs. DISTRICT MAGISTRATE KANPUR

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution praying that a writ of mandamust be issued quashing the order dated 28th of October, 1955, passed by the District Magistrate, Kanpur, opposite party No. 1, and directing him not to modify or cancel the allotment order passed in favour of the petitioner. The other relief prayed for is a relief for any direction which may be deemed just and proper in the circumstances of the case.

(2.) The facts briefly are that house No. 37/ 52, Gillis Bazar, Kanpur, is owned by one Sri Jagdish Prasad Kesarwani. The house was constructed in the year 1939, and one Sri Gauri Shan-ker Bhargava entered into a lease with the landlord in respect of the entire house and thus became a tenant of the house. Sri Bhargava, subsequently sublet portions of the house to various persons. In 1946, Bhargava Brothers, Booksellers, one Sri B. C. Bhargava in 1947 and Sri N. C. Agarwala, opposite party No. 3, all became subtenants of different portions of the house. In 1952 a suit was filed by the landlord against Sri Gauri Shankar Bhargava for arrears of rent and for ejectment on the ground that he had illegally sublet portions of the accommodation and was also in default of payment of arrears of rent. The suit was decreed on the 27th of January, 1955 and a decree was passed for recovery of Rs. 509-4-0, as arrears and also for possession. The tenant and the sub-tenants did not vacate the pos-session of the house in spite of the decree. The petitioner was carrying on business of Chemists and Druggists in shop No. 38/1, Gillis Bazar, Kanpur, as a sub-tenant on behalf of its tenant-in-chief. A decree was obtained for the ejectment of the present petitioner by the tenant-in-chief. Thus the petitioner was in need of an accommodation to carry on his business. In October, 1955 as there was a possibility of Sri Bhargava vacating the premises and there was already a decree of ejectment against him, an application was made by the petitioner for the allotment of the premises on 3rd of October, 1955, after obtaining the consent of the landlord for the tenancy of the entire accommodation. On the 4th of October, 1955 the landlord executed his decree for ejectment against Sri Bhargava. An Inspector was deputed to enquire on the application of the petitioner for the allotment of the accommodation. On the 6th of October, 1955, he submitted his report in which he stated that the opposite party No. 3 and three others were sub-tenants of the accommodation and the petitioner was the only applicant for the allotment of the house. The landlord has no objection to the allotment in favour of the petitioner. On the 7th of October, 1955 the District Magistrate, Kanpur passed an order allotting the entire house to the petitioner. After the allotment in favour of the petitioner, he on the 12th of October, 1955 deposited rent for one month from 12th of October, 1955 to 11th November, 1955, with the landlord. On the 14th of October, 1955 the petitioner look possession of the first floor of the house allotted to him. On the 17th of October, 1955 an objection was filed by the opposite party No. 3, Sri N. C. Agarwal, to the allotment of the house in petitioner's favour and it was prayed by him that the allotment order should be cancelled and the allotment should be made in his favour. The ground taken was that the landlord had not drawn the attention of the District Magistrate, Kanpur during the allotment proceedings in favour of the petitioner to the fact that there were old sub-tenants. The Rent Control and Eviction Officer, Kanpur thereafter passed an order on the 18th of October, 1955 staying the operation of the allotment order dated 17th October, 1955 passed in favour of the petitioner. An Inspector was again deputed to look into the matter, who gave his report on the 21st of October, 1955, in which he reported that the opposite party No. 3 had been occupying a portion on the ground floor since 1943 as a sub-tenant and he was doing his business therein. On the 28th of October, 1955, without giving any opportunity to the petitioner an order was passed by the District Magistrate modifying the allotment order passed in favour of the petitioner and by that order the allotment of the accommodation in favour of the petitioner in respect of the portion in occupation of the opposite party No. 3 was cancelled, and the said portion was allotted to the opposite party No. 3. It is this order of the District Magistrate which has been challenged by means of the petition. Notices were issued to the opposite parties, i.e., The District Magistrate, Kanpur, The Rent Control and Eviction Officer, Kanpur, and Sri N. C. Agarwal, subsequent allottee of the disputed portion. Counter-affidavits have been filed in this case on behalf of the opposite parties Nos. 1 and 2 and also on behalf of the opposite party No. 3. In the counter affidavit filed on behalf of the District Magistrate and the Rent Control and Eviction Officer, it is stated that the portion in occupation of Sri. N. C. Agarwal, was sublet to him in the year 1943 and that he continues to be in occupation of the said portion. In the counter-affidavit filed by one Sri S. K. Sinha, Chief Inspector, Rent Control and Eviction Officer, Kanpur, he has further stated that on 21-10-1955, he had submitted a report and had personally informed the applicant about the application moved by the opposite party No. 3, against the allotment order made in favour of the applicant. The petitioner, according to tha counter affidavit, inspected the file on 20-10-1955 and filed his objections on 21-10-1955. On the receipt of the report by Sri Sinha and after the consideration of the application of the opposite party No. 3 and the objections filed by the petitioner the District Magistrate cancelled the allotment order passed in favour of the petitioner on 28-10-1955. The stand, therefore, taken by the opposite parties Nos. 1 and 2 is that the modification in the allotment order was made after considering the objections filed by the petitioner and it cannot be said that the petitioner had no opportunity to contest the claim of the opposite party No. 3. Further, it is stated that the District Magistrate had jurisdiction to modify his previous order. The counter-affidavit filed on behalf of the opposite party No. 3 states that it was a condition of tenancy of Sri Gauri Shanker Bhargava, that he could sublet the premises and that the opposite party No. 3 was no party to the suit for ejectment filed by the landlord against Sri G. S. Bhargaya. It is further stated in the counter affidavit that the present petitioner had applied for the allotment of the portion in occupation of the tenant-in-chief, G. S. Bhargava, and it was that portion which was allotted to him. In the allotment order passed in favour of the petitioner it was specifically mentioned "portion vacated by Sri G. S. Bhargava''. The petitioner, however, subsequently made an application on 11-10-1955, pointing out that he had applied for the allotment of the entire premises and the allotment order was made in his favour for the entire building by the District Magistrate of Kanpur.

(3.) In paragraph 7 of the counter affidavit it is stated that the petitioner never got possession of the first floor of the house on 12-10-1955 and 14-10-1955, It is asserted that the first floor was in occupation of two sub-tenants, Sri B. C. Bhargava and Sri Suraj Lal. Sri Bhargava continued to be in possession and occupation till 12-11-1955 and Sri Suraj Lal continued to occupy it till 28-1-1956, cm which date he was evicted by Sri Syed Muntajib Hussain under the order of the Second Additional Munsif, Kanpur, it is further stated that the petitioner had full knowledge of his application dated 17th October, 1955 and filed objections to it.