PRATAP SINGH Vs. PRESCRIBED AUTHORITY AND ANR.

JUDGEMENT

(1.) HEARD petitioner's Counsel and perused the record. This writ petition is directed against the order dated 24.6.97, passed by the Prescribed Authority declaring vacancy after holding that the shop has been let out by the landlord -respondent No. 2 to the petitioner without there being any order of allotment in violation of Section 11 of U.P. Act No. 13 of 1972.

(2.) THE case of the petitioner and the landlord was that the petitioner entered into the possession of the shop in question in pursuance of the terms and conditions of the compromise decree passed in S.C.C. suit filed by the landlord against him in respect of another shop. The compromise provided that the present petitioner would vacate the shop, which was the subject matter of S.C.C. suit and would shift to the shop in question, when the same was vacated by the another tenant who was then occupying the said shop and in pursuance of the said compromise S.C.C. Court passed the decree and in pursuance of the said terms and conditions the petitioner entered into the shop in question. Learned Counsel for the petitioner contended that it was also the case of the landlord that the provisions of U.P. Act No. 13 of 1972 were not applicable to both the shops and therefore the Rent Control and Eviction Officer had no jurisdiction either to declare vacancy or to pass any order of allotment or release under Section 16 of the Act.

(3.) IN the case in hand the Rent Control and Eviction Officer has declared vacancy on the ground that the petitioner has occupied the shop in question in violation of the provisions of Section 11 of the Act i.e. in the absence of any valid order of allotment. He has not yet passed any final order of allotment or release under Section 16 of the Act. The Rent Control and Eviction Officer gets jurisdiction to pass a final order of allotment or release only when the provisions of U.P. Act No. 13 of 1972 are applicable to the premises. If the provisions are attracted in that event also, he gets jurisdiction only on the existence of vacancy within the provisions of the Act. Existence of vacancy is a sine qua non for allotment or release and in the absence of valid vacancy, the District Magistrate does not get jurisdiction to make any order under Section 16 of the Act. When an allotment or release order is challenged under Section 18 of the Act, the Revisional Court may scrutinise the validity of such order on the grounds enumerated in Section 18 of the Act and can go into the question whether on the findings recorded in accordance with law by the Rent Control and Eviction Officer, there existed any vacancy in law or not, the question of vacancy being a jurisdictional fact.