ARUN KUMAR Vs. DISTRICT JUDGE DEHRADUN

JUDGEMENT

(1.) This is a petition under Art. 226 of the Constitution by Arun Kumar, an applicant for allotment of a shop in Kulri Bazar, Mussoorie, and is directed against the orders dated 14-6-1976 and 1-11-1977 passed by the Rent Control and Eviction Officer and the District Judge respectively holding that no deemed vacancy under S. 12 of U. P. Act 13 of 1972 (hereinafter called the Act) had occurred in the premises and, therefore, the same were not available for allotment.

(2.) The brief relevant facts are that one Rajeshwar Prasad Rastogi, respondent No. 3, was the tenant of the shop and carried on trade in groceries. One Nand Lal Lamba, respondent No. 4, carrying on the business of ready-made garments under the name and style of. Beauty Place was inducted in the said shop in June 1974. Thereupon a number of persons including the petitioner applied for allotment of the shop asserting that a deemed vacancy under S. 12 (1) or (2) had occurred. This was denied by the tenant. The Rent Control and Eviction Officer per his order dated 14-6-1976 found that the tenant Rajeshwar Prasad Rastogi was doing his own business as well as that of Beauty Place and that the shop in question had not been shown to have been sub-let by him to Nand Lal Lamba and, therefore, a deemed vacancy had not occurred. In the course of the order he also observed that there was no evidence of any partition or separate locking arrangement in the shop. On the same date by another order, the Rent Control and Eviction Officer granted approval to the tenant R. P. Rastogi to take in Nand Lal Lamba as a partner under R. 10 (6) (a) of the Rules framed under the Act. The petitioner filed two appeals against both these orders which under the transitional provisions of U. P. Act 28 of 1976 were deemed to be revisions and decided as such by the District Judge. The District Judge recorded the finding that the tenant had sub-let a portion of the shop to Nand Lal Lamba but it was an un-demarcated portion. Further that under S. 12 of the Act a demarcated portion could be deemed to be vacant but no deemed vacancy can occur of an un-demarcated portion. The District Judge also held that no appeal or revision lay against the order granting permission under R. 10 (6) (a) and that stage would come when an allotment order is passed in favour of the new partnership under proviso (a) to R. 10 (6). By this petition the petitioner has attacked both the orders.

(3.) Learned counsel for the respondents urged that the orders of the District Judge in the present case were without jurisdiction because no appeal lay against any of these orders as these were not orders under S. 16 of the Act. Reliance has been placed on Trilok Singh and Company Vs. District Magistrate, Lucknow (AIR 1976 SC 1988) and M. C. Banerji Vs. VIIth Addl. District Judge, (1979 (UP) RCC 140) . In Trilok Singhs case (supra) the Supreme Court has held that the stage of determining a vacancy is merely a step-in-aid of an order of allotment and it is only when such an order of allotment or release is passed that the landlord or the tenant, as the case may be, can have a grievance. In that case a vacancy was declared on the application of release filed by the landlord and the tenant had sought to attack this order. The facts of M. C. Banerjis case (supra) are similar to the facts in the present case. There also it was claimed by an applicant for allotment that a deemed vacancy had occurred and the Rent Control and Eviction Officer held that there was no such vacancy. In appeal the District Judge reversed this finding. K. N. Singh, J., held that the District Judge had acted without jurisdiction and observed:-