MOHD SAMI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This petition under Article 226 of the Constitution raises the interesting question whether the expiry of one day and the commencement of the next are separated by any gap of time and whether a law purporting to extend the life of an Act expiring on 30-9-1952 at midnight could be effective if it was to take effect itself on the expiry of 30-9-1952. The petitioner prays for the quashing of the order of the Rent Control and Eviction Officer, Sultanpur, dated 6-12-1956, directing the brother of the petitioner, a man called Mohammad Mustafa to hand over the possession of a certain building to Murari Prasad respondent No. 4, who was allotted the building by the aforesaid officer. In view of the fact that the only argument submitted On behalf of the petitioner is that the Act was not validly extended, and any controversy as to facts is immaterial for the decision of the sole legal question in this case. Very briefly, the petitioner's case, as alleged in this affidavit, is this. He says that he and his brother Mohammad Mustafa are the owners and landlords of a shop in Sultanpur city known as 85/A, Parkinsonganj. It fell vacant on 8-8-1955. The petitioner's brother Mohammed Mustafa has been running a tobacco shop in another locality in Sultanpur city known as mohallah Shahganj. On 17-9-1955 the petitioner obtained a licence for dealing in tobacco. According to the petitioner this licence was neither an extension of his brother's licence nor was taken on behalf of the joint family (in other words, the petitioner claims that the licence was his personal affair). The petitioner alleges that he made an application for the allotment of the aforesaid shop No. 85/A which was referred to a housing committee for advice. On 29-9-1955, the District Magistrate, on the advice of the committee, allotted the shop to Murari Prasad, respondent No. 4. The allotment order is attached as annexure 'A' to the petitioner's affidavit. It contains an endorsement intimating that a copy of the order was being forwarded to "the landlord Shri Mustafa" for information and compliance. A copy of the order purporting to reject the application alleged to have been made -by the petitioner is also filed as Annexure 'B' of the petitioner's affidavit. But in this order Mohammed Mustafa (and not the petitioner) is described as the owner of the shop. The order states that "the request of the house owner is .............. rejected and the shop is allotted in favour of Shri Murari Prasad". The petitioner further alleges that he had already taken possession of the shop on 8-8-1955 when it fell vacant. He states that on 17-8-1955, he opened his tobacco shop, and commenced his tobacco business in it. On 6-11-1955, the petitioner's brother Mohammad Mustafa received a notice under Section 7-A (I) of the U. P. (Temporary) Control of Rent and Eviction Act from the Rent Control and Eviction Officer, Sultanpur, asking him to show cause why be should not be evicted from the premises. On 7-12-1955, Mohammed Mustafa received another notice under Section 7-A (2) directing him to vacate the premises. Mustafa went up in revision before the Commissioner against the notice under Section 7-A (2) which was rejected on 8-12-1955. Mustafa then filed a writ petition in this Court challenging the validity of the allotment in favour of the respondent Murari Prasad and also oF the order rejecting his own application for allotment. This petition was rejected on 5-9-1956, on the ground that neither of the orders affected him. On 6-12-1956, the Rent Control and Eviction Officer, Sultanpur issued a notice to Mohammed Mustafa under Section 7-A (2) of the Act, directing him to hand over the possession of the premises to the allottee Murari Prasad within 4 days.

(2.) The petitioner impugns the legality of this notice served on his brother Mustafa on the ground that it affects his rights as he is occupying the premises in dispute in his own right. The petitioner prays for a writ of prohibition directing the District Magistrate, Sultanpur not to take any steps to eject the petitioner from the premises. He also prays for a writ of certiorari quashing the notice dated 6-12-1956.

(3.) The petition is opposed by Murari Prasad, respondent No. 4 in whose favour the allotment order was made and also by the Rent Control and Eviction Officer Sultanpur. Counter-affidavits have been filed on behalf of both. Murari Prasad has denied the petitioner's allegation that he made any application for the allotment of the shop to him or for the release of the shop for his benefit. He states that Mohammed Mustafa and not the petitioner filed an application before the Rent Control and Eviction Officer. In this application Mustafa claimed to be the owner of shop No. 85/A and prayed for the ejection of a certain person called Balram Prasad from this shop. He stated that ho wanted to use the premises for himself. Both the application and its supporting affidavit are filed as annexures to the counter-affidavit. Murari Prasad states that the allotment order in his favour was passed after considering the claims cf Mohammed Mustafa. He denies that the petitioner Sami took possession of the shop on 8-8-1955, when it fell vacant. He points out that, in his writ petition filed in this court, Mohammed Mustafa stated in his affidavit that he (Mustafa) had taken possession of the shop on 8-8-1955 when it fell vacant. Murari Prasad also states that Mohammed Mustafa never stated in any of his objections before the Rent Control and Eviction Officer that the house was in possession of the petitioner Mohammed Sami. This respondent denies that the petitioner is in possession of the shop in his own right and states that the shop is in the possession of Mohammed Mustafa. He points out the fact that Mohammed Sami never filed any objection before the Rent Control and Eviction Officer against the notice under Section 7-A.