Ram Adhin vs Ram Pal and Others

Murlidhar, J.—This is a tenant''s petition under Article 226 of the Constitution by which an order of the Rent Control and Eviction Officer u/s 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 Shankar applied u/s 21(1)(a) of the Act for release of this property but this application as finally dismissed on 19-9-1975 by the District Judge in appeal. Thereafter Ram Pal said to be a relation of Ram Shankar 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 Prescribed Authority allotted the premises to Ram Pal. On 23-1-1976 the Petitioner moved for review u/s 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 Prescribed Authority held that there was a vacancy u/s 12(3) and rejected the review application. In revision the District Judge has confirmed this order.

The learned Counsel for Petitioner attacked the order as bad and invalid because the designation of the 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 person as exercising both the powers of Rent Control & Eviction Officer and Up Nagar Khadya Adhikari (Sri S.K. Chatterjee in this case). The Petitioner has not asserted that Sri S.K. Chatterjee did not have the powers of Rent Control & 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 u/s 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 Pent Control and Eviction Officer. If Sri S.K. Chatterjee 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 technical 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 an 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:

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Under this provision, the District Magistrate has been empowered to postpone allotting an accommodation in which a deemed vacancy u/s 12(3) has occurred "in case the tenant has been unsuccessful impite 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 inspire 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:

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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.