JUDGMENT

S.C. Manchanda, J. - This is a landlord's writ petition under Article 226 of the Constitution praying for the quashing of the order of allotment dated 12.6.1963 in favour of opposite party no. 2 and the order of the Rent Control and Eviction Officer dated 28 June 1963 declining to release the shop in favour of the petitioner, on the ground that the allottee having obtain. ed possession the allotment order had exhausted itself.

2. The material facts leading up to this petition are these. The applicant is the owner of the accommodation, which is a shop in Moradabad city. The previous tenant one Dr. S. K. Biswas was about to vacate the premises in March 1963. The opposite party no. 2 made an application dated the 26 March, 1963, for allotment in his favour. Thereupon, the Rent Control and Eviction Officer called for a report from the Inspector and the following report as after enquiry was submitted on 13.4.1963.

"I visited it and made enquiry. It is in the tenancy of Dr. S. K. Biswas who had not been disposed of but had only told me that he intends to vacate it shortly as his practice is not flourishing...... . Its landlord is Haji Sajjad Husain who lives in Peerzada. It is likely to fall vac cant. It may be notified for allotment." On this report the Rent Control and Eviction Officer on the same day passed the following order :

"Notify"

3. It is alleged that the shop was duly noticed and the petitioner came to know on the 8 April about it. On that very day the petitioner filed an application under rule 6 for release on the ground that he required the shop for his personal need. As he was an ex-Zamindar and has several grown up sons who are educated but without employment and therefore it was necessary to start some business in the accommodation. On the release application by the petitioner he was directed to appear on the/23rd April 1963. On that date the following order was passed.

"I find that no letter from Dr. Biswas has been put on file to say that the shop is likely to fall vacant. The owner prays to get intimation of vacancy from the tenant. Case fix 7-5-63."

4. The Inspector reported on the 23rd May 1963, "Shop not yet vacated. Papers may be filed. On this Rent Control and Eviction Officer ordered that the papers may be filed. In other words the rule 6 application of the petitioner was undisposed of and was filed. Meanwhile, that Rent Control and Eviction Officer went on leave and the aforesaid Rent Control Inspector took charge in the leave vacancy. On the 24th May, 1963, an endorsement was made in the order sheet that the shop had been vacated by Dr. Biswas. On the 25th of May, 1963, the opposite party no. renewed his application for allotment. On the 7th of June, 1963, Sri Ram Pal Singh M. L. A. wrote to the Rent Control and Eviction Officer recommending the case of opposite party no. 2 for allotment. On that very day the shop was notified for allotment and the allotment order was made in his favour on the 11th June, 1963. The opposite party no. 2 entered into possession with the consent of the previous tenant on the 15th June, 1963. The petitioner-landlord had no knowledge of the subsequent proceedings and in any case his application for release under Rule 6 been "filed." He, therefore, on coming, to know of the allotment order on the 12th/13th June, 1963 made an application for reconsideration of the allotment order on the ground that it was obtained by mis-representation, fraud and collusion, The Inspector on this application reported :-

"No evidence of pagri, no law to call landlord .... Submitted for orders, be rejected."

5. The said officiating Rent Control and Eviction Officer by his order dated the 28th June 1963, rejected the application without making any enquiry into this affair and merely relying on the report of the Rent Control Inspector in these words :

"As the allottee has taken possession in pursuance of the allotment the allotment is exhausted and invalid in law. No further action is needed."

Hen