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IN THE HIGH COURT OF ALLAHABAD
Agarwala and Chaturvedi, JJ.
LACHHMAN DAS - Appellant
Versus
RENT CONTROL AND EVICTION OFFICER, BAREILLY - Respondents
Civil Misc. Writ 304 Of 1952
Decided On : 01/13/1953
RENT CONTROL AND EVICTION ACT - SECTION 7 - JURISDICTION OF RENT CONTROL AND EVICTION OFFICER - TRANSFER OF OWNERSHIP AND POSSESSION OF ACCOMMODATION - ACCOMMODATION NOT FALLING VACANT - ALLOTMENT WITHOUT JURISDICTION.
Fact of the Case:
The applicant applied for allotment of a shop, which was owned by Naqshe Ali and Mashooq Ali, who had suspended their business but not vacated the shop. The Rent Control and Eviction Officer allotted the shop to Krishna Kumar, another applicant. The applicant filed a suit for injunction to restrain Krishna Kumar from taking possession of the shop, but the suit was withdrawn after the temporary injunction was rejected on the ground of maintainability. The applicant then filed an application under Article 226 of the Constitution to quash the order of allotment.
Finding of the Court:
The court held that Naqshe Ali and Mashooq Ali were the owners of the shop and not tenants, and that they had the power to transfer possession of the shop to the applicant without the shop being allotted to him by the Rent Control and Eviction Officer. The court further held that the Rent Control and Eviction Officer had no jurisdiction to make the allotment as the accommodation had not fallen vacant.
Issues: 1. Whether Naqshe Ali and Mashooq Ali were tenants or owners of the shop. 2. Whether Naqshe Ali and Mashooq Ali had the power to transfer possession of the shop to the applicant without the shop being allotted to him by the Rent Control and Eviction Officer. 3. Whether the Rent Control and Eviction Officer had jurisdiction to make the allotment.
Ratio Decidendi: 1. The court held that Naqshe Ali and Mashooq Ali were the owners of the shop and not tenants, based on the following factors: - The affidavit filed by the applicant stated that the shop was constructed by Naqshe Ali and Mashooq Ali, who were co-sharers in the other shops, godown, and the site of the building. - The counter-affidavit filed by Krishna Kumar alleged that Naqshe Ali and Mashooq Ali were tenants paying a rent of Rs. 60/-, but Krishna Kumar himself had mentioned in his application for allotment that the shop was owned by Naqshe Ali and Mashooq Ali. - The Rent Control and Eviction Officer also mentioned in his order of allotment that Naqshe Ali and Mashooq Ali were the owners of the shop. 2. The court held that Naqshe Ali and Mashooq Ali had the power to transfer possession of the shop to the applicant without the shop being allotted to him by the Rent Control and Eviction Officer, based on the following reasoning: - Under Section 7 of the Rent Control and Eviction Act, the District Magistrate is authorized to require a landlord to give intimation that any accommodation of which he is a landlord is or has fallen vacant and to let or not to let such accommodation to any person. - The tenant is also bound to inform the Rent Control and Eviction Officer of his intention to vacate the premises he is occupying. - It is only when an accommodation falls vacant (and now after the amendment of Section 7 by Act 24 of 1952, or is about to fall vacant) that the District Magistrate acquires the jurisdiction to make an order of allotment. - When an owner of property, being in possession of it and actually occupying it, transfers the ownership and the possession thereof to a transferee, the ownership and possession vest in the transferee from the moment of transfer and the transferee steps into the shoes of the owner. - In such a case, the accommodation cannot be said to have fallen vacant. 3. The court held that the Rent Control and Eviction Officer had no jurisdiction to make the allotment as the accommodation had not fallen vacant, based on the following reasoning: - The accommodation was transferred to the applicant before it actually fell vacant. - The accommodation was not intended to be used by the owner for his own purposes, but was intended to be let out to a tenant, or if the occupier is a tenant that the tenant will cease to occupy it.
Final Decision: The court allowed the application and quashed the order of allotment. The applicant was awarded costs from Krishna Kumar.
( 1 ) THIS is an application praying that the order of allotment of a shop situate in Mohalla shahamatganj in the city of Bareilly, made by the Rent Control and Eviction Officer on 12-9-1951, in favour of Krishna Kumar, opposite party 2, be quashed. The facts briefly stated are as follows : the shop in dispute is a tin shed with wooden structures. It is on a plot -of land which along with three other shops and a go-down is owned by several persons. Two of these co-sharers, viz. , naqshe Ali and Mashooq Ali were admittedly occupying the disputed shop and were carrying on kirana business. It appears that they suspended their business sometime in July or August 1951. Several persons came forward to get an allotment of the shop in the expectation that Naqshe Ali and Mashooq Ali would vacate it. The first person to come forward was one Kalloomal. He made an application for allotment with the concurrence of Naqshe Ali and Mashooq Ali on 4-8-1951. On 21-8-1951, Lachman Das applicant applied for its allotment. On 24-8-1951 lachman Das made a second application for allotment. On 27-8-1951 Krishna Kumar made a similar application. This application was made with the consent of Naqshe AH and Mashooq Ali.
( 2 ) ON 28-8-1951, however, Lachman Das secured a sale deed of the materials of the shop and the goods stored therein in his favour as also of the rights of Naqshe Ali and Mashooq Ali in the rest of the property which was 2 1/2 anna share. On the same date he made an application for allotment of the shop in his favour with the consent of Naqshe Ali and Mashooq Ali.
( 3 ) ON 12-9-1951 the Rent Control and Eviction Officer made an order allotting the shop to krishna Kumar opposite party. Against this order, the applicant filed a suit for the issue of an injunction restraining Krishna Kumar, from taking, and T. R. O. from giving, possession over the shop. He also made an application for a temporary injunction. His prayer was granted by the trial court, but in appeal the temporary injunction was cancelled on the ground that the suit itself was not maintainable because no notice, as required by Section 80, C. P. C. , had been given to the rent Control and Eviction Officer. The applicant thereafter withdrew the suit and filed the present application under Article 226 of the Constitution.
( 4 ) IN the affidavit which the applicant has filed in support of his application, it is mentioned that the shop in dispute was constructed by Naqshe Ali and Mashooq AH who were co-sharers in the other shops, godown and the site of the building and in the land attached to those shops to the extent of 2 1/2 anna share. In the counter-affidavit filed by Krishna Kumar it is alleged that naqshe Ali and Mashooq Ali were merely tenants of the shop in dispute paying a rent of Rs. 60/ -. It, however, appears that Krishna Kumar himself had mentioned in his application for allotment that the shop was owned by Naqshe Ali and Mashooq Ali and had not mentioned that any rent was paid by Naqshe Ali and Mashooq Ali. The Rent Control and Eviction Officer also in his order of allotment mentioned that Naqshe Ali and Mashooq Ali were the owners of the shop. It is true that the applicant in his application for allotment mentioned Rs. 60/- as the present rent of the shop. But he explains that he did not mean thereby that the rent was paid by naqshe Ali and Mashooq Ali, but that the estimated rent of the shop was Rs. 60/ -. Having regard to what was stated by the opposite party in his application for allotment, and by the Rent Control and Eviction Officer in his order of allotment, we hold for the purposes of the present application that Naqshe Ali and Mashooq Ali were not tenants of the shop but were owners thereof.
( 5 ) THE question then is whether Naqshe Ali and Mashooq Ali having suspended their business, but not having vacated the shop because their goods were still in the shop, had the power to transfer possession over the shop to the applicant without the shop
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