RAM ADHIN Vs. RAM PAL

JUDGEMENT

(1.) THIS is a tenant's petition under Article 226 of the Constitution by which an order of the Rent Control and Eviction Officer under Section 16 Act No XIII of 1972 (hereinafter referred to as the Act) is challenged. The brief facts are that the premises in question are a trust property. The petitioner who is a peon in Nagar Mahapalika is a tenant in a room in this property. Ram Shanker applied under Section 21 (1) (a) of the Act for release of this property but this application was finally dismissed on 19-9-1975 by the District Judge in appeal. Thereafter Ram Pal said to be a relation of Ram Shanker applied for allotment of the premises on the ground that a deemed vacancy had occurred because the petitioner had built his own house in a plot of 125 sq. yards secured from Nagar Mahapalika near-about 1957. The petitioner filed an objection to the allotment application and the Prescri bed Authority allotted the premises to Ram Pal. On 23-1-1976 the petitioner moved for review under Section 16 (5) and inter-alia asserted that there had been no deemed vacancy. The respondent asserted that in pursuance of the allotment order Ram Pal had taken possession through police but the petitioner had again forcibly occupied the premises on 19-1-1976. The Pre scribed Authority held that there was a vacancy under Section 12 (3) and rejected the review application. In revision the District Judge has con firmed this order. The learned counsel for petitioner attached the order as bad and invalid because the designation of this officer passing the order of allotment is shown as Up Nagar Khadya Adhikari and not the Rent Control and Eviction Officer. The District Judge in his order has considered this matter and has observed that the same parson as exercising both the powers of Rent Control and Eviction Officer and Up Nagar Khadya Adhikari (Sri S. K. Chaterjee in this case). The petitioner has not asserted that Sri S. K. Chaterjee did not have this powers of Rent Control and Eviction Officer conferred upon him. The only allegation in the writ petition is that there was no evidence that Up Nagar Khadya Adhikari had been conferred-with the power of Rent Control and Eviction Officer under Section 3 (c) Act XIII of 1972. THIS I find insufficient data for holding that the person who passed this order did not have the powers of Rent Control and Eviction Officer. If Sri S. K. Chaterjee was exercising powers of Rent Control and Eviction Officer also, it would be merely a case of misdescription and the noting of the designation of Up Nagar Khadya Adhikari under his signatures would not make the allotment order without Jurisdiction. In any case on such a techni cal ground I would not be prepared to interfere under Article 226. The allotment order was also attacked on the ground of absence of proper notice to the petitioner tenant as required by Rule 8 (2). When the petitioner has had his full say and opportunity to substantiate his stand in the review proceedings the flaw even if it be taken to have existed earlier has become inconsequential. Reliance was also placed on Rule 10 (6) (c). THIS provides as follows: "In the case of a residential building under the tenancy of a person who shall be deemed by virtue of the proviso to Section 12\3 to have ceased to occupy it upon the expiration of a period of one year from the date of commencement of the Act by reason of his or any member of his family having built another residential building in the same local area, where that other building was let out at the commencement of the Act and the tenant or the member of his family, as the case may be, has been unsuccessful inspite of his best effort in securing vacant possession thereof the District Magistrate may postpone the making of allotment order in respect of the building deemed to be vacant under Section 12 (4)". Under this provision, the District Magistrate has been empowered to post pone allotting an accommodation in which a deemed vacancy under Section 12 (3) has occurred "in case the tenant has been unsuccessful inspite of his best effort in securing vacant possession thereof". THIS rule can therefore, apply only if the tenant proves that he could not secure vacant possession of the house inspite of efforts THIS was never alleged before the Rent Control and Eviction Officer by the petitioner. Therefore, this rule cannot help him. Section 12 (3) runs as follows: "In the case of a residential building of the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate he shall be deemed to have ceased to occupy the building under his tenancy. Provided that if the tenant or any member of his-family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of period of one year from the said date." Explanation; Not material. Since it is not disputed that the petitioner has constructed his house near about 1957 in accordance with the proviso to Section 12 (3) a deemed vacancy shall be taken to have arisen a year after the commencement of Act No. XIII of 1972, i. e. on 15-7-1973. Therefore, after 15-7-1973 the status of the petitioner was that of an unauthorised occupant and he cannot resist the release application. The petition therefore, fails and is hereby dismissed. Parties are however left to bear their own costs.