SHANKARLAL DEBIPRASAD RATHORE Vs. STATE OF M P

JUDGEMENT

(1.) BY order, dated 9th July 1975, passed under section 39 of the madhya Pradesh Accommodation Control Act, 1961, the Authorised Officer allotted House No. 572, Sarafa Ward, Jabalpur, in favour of one Ikram Hussain who is employed as a welder in the Vehicle Factory, a Government of India undertaking. Shankarlal Rathore instituted the suit, in which this revision arises, on 10th July 1975 for a declaration that the order of allotment is without jurisdiction. Relief of permanent injunction is also claimed in the suit. The State, the Authorised Officer and Ikram Hussain are joined in the suit as defendants 1, 2 and 3. An application for temporary injunction was made by the plaintiff. The trial Court rejected the application. On appeal, the District judge, Jabalpur, issued a temporary injunction restraining Ikram Hussain from taking possession of the house and also restraining the Authorised Officer from enforcing the order of allotment. Ikram Hussain filed a revision being Civil revision No. 719 of 1976. This revision was allowed on 22nd March 1977 by hon'ble the Chief Justice and the appeal was remanded to the District Judge for fresh disposal. The District Judge was directed to find out prima facie whether the plaintiff is in actual occupation of the suit house. After remand, the District Judge by his order, dated 19th April 1977, dismissed the appeal. In paragraph 45 of the order, the District Judge found that before the order of allotment was passed, one Jagdish Prasad with his family used to reside in the house in suit and the plaintiff did not live in the house and that after jagdish Prasad left the house, the plaintiff started using it as a godown for storing tobacco. Aggrieved by the order of the District Judge, the plaintiff has come to this Court in revision.

(2.) THE order of allotment passed by the Authorised Officer proceeds on the finding that the house in suit was in occupation of Jagdish Prasad as tenant on a rent of Rs. 40 per month and that the house fell vacant when Jagdish prasad vacated it on 4th April 1975. This order is challenged in the suit by the plaintiff on the allegations that Jagdish Prasad was not a tenant and was living with the plaintiff in the house being a relation, that the house never fell vacant and that the monthly rent of the house did not exceed Rs. 25. Sub-section (2) of section 39 empowers the Authorised Officer to make an order of allotment in respect of an accommodation "which has fallen vacant or is likely to fall vacant". Section 39, as provided in sub-section (5) of that section, has no application to any accommodation used for residential purposes the monthly rent of which does not exceed Rs. 25. The plaintiff first contends that the authorised Officer assumed jurisdiction under section 39 by wrongly finding on wholly inadmissible evidence that the rent of the house was Rs. 40 per month The second contention of the plaintiff is that Jagdish Prasad was living in the house with the plaintiff as his licensee and, therefore, the house did not fall vacant when Jagdish Prasad ceased to live in the house because the plaintiff continues in occupation of the house. The plaintiff's argument is that by holding wrongly that the house was in occupation of Jagdish Prasad as a tenant on a monthly rent of Rs. 40, the Authorised Officer assumed jurisdiction which he did not possess.

(3.) IT is conceded before me that a civil suit to challenge an order of allotment passed by the Authorised Officer on the ground that it is in excess of jurisdiction is not barred. Section 45 of the Act bars the jurisdiction of the civil Court in matters relating to fixation of standard rent and other matters which the Rent Controlling Authority is empowered to decide under the Act. This section further forbids issuance of any injunction in respect of any action taken by the Rent Controlling Authority. The Act, however, makes no provision similar to section 45 ousting the jurisdiction of the civil Court for challenging an order of allotment made by the Authorised Officer or forbiding issuance of an injunction to the Authorised Officer in respect of any allotment made by him. A suit, therefore, lies for challenging an order of allotment made by the authorised Officer at least on the ground that the order is in excess of jurisdiction. If the Court comes to the conclusion that the order is in excess of authority, it can issue an injunction forbidding implementation of the order.