M.C. Desai, J. - (1.) This is an appeal by a landlord from a judgment of Mootham, C. J. dismissing his application for a writ of certiorary to quash an order passed by a District Magistrate on the 25th April, 1956, refusing to reconsider a so-called allotment order issued in favour of one Shanker Dutt Pandey on the 11th April, 1956, on the ground that he had taken possession in pursuance of it.
(2.) The facts giving rise to this appeal are as follows. The appellant is the owner of a house, a portion of which is in dispute. The portion had been let out by him to one Srimati Beni Devi who kept a shop in it and the remaining portion was in his own occupation. On the 28th September, 1955, the appellant obtained a decree for ejectment against Beni Devi and on the 29th March, 1956, her appeal from it was dismissed. Shanker Dutt was living with her in the shop although it is not known by what right. On 30-3-1956 he made an application to the District Magistrate for an allotment order in respect of the shop in his favour and the District Magistrate asked an Inspector to make an inquiry and report. On 4-4-1956 the Inspector made an inquiry at the spot and reported to the District Magistrate that Shanker Dutt had been living in the shop as guest of Beni Devi for the previous three years. On 5-4-1956 the appellant applied for execution of the decree against Beni Devi. On 10-4-1956 Beni Devi obtained an order from the executing court for staying execution upto 28-4-56. On 11-4-1956 the District Magistrate issued the so-called allotment order which is really nothing but an order directed to the appellant calling upon him to let out the shop to Shanker Dutt. The order was served upon the appellant on 17-4-1956 and within four days he applied to the District Magistrate for releasing the shop in his favour because he wanted to carry on his own business in it. It was this application that was dismissed by the District Magistrate on 25-4-1956; the only reason given by him for dismissing it was that Shanker Dutt had already taken possession over the shop by virtue of the allotment order. On 28-4-56 the execution case was adjourned; it is to be noted that the execution court was not informed either by Beni Devi or by Shanker Dutt that the decree had already been satisfied and the possession over the shop had already been delivered to the appellant through Shanker Dutt. On 5-5-1956, when the case was taken up next by the executing court, Beni Devi's counsel informed it that she had vacated the shop and given information of the vacation to the District Magistrate on 17-4-1956. What she wrote to the District Magistrate on 17-4-1956 is not produced before us. On 14-5-1956 the appellant informed the District Magistrate that Beni Devi was still continuing in possession of the shop and that the allotment order had been obtained by Shanker Dutt in order to defeat his right as a decree-holder. The District Magistrate informed him on 16-5-1956 that he was not prepared to do anything and thereupon he filed the petition giving rise to this special appeal, for a writ to quash the order of the District Magistrate dated the 25th April, 1956.
(3.) Coming to the order itself we find that the reason given by the District Magistrate for refusing to consider the appellant's application was illegal. Shanker Dutt had not entered into possession of the shop by virtue of the allotment order at all; he had only continued to be in occupation. He had been in occupation from before the ejectment suit was decreed against Beni Devi. There was no questional his having been in possession or in occupation under the allotment order for the simple reason that the appellant had never obtained possession over the shop, the shop had never fallen vacant, Shanker Dutt had never approached the appellant and the appellant had never let out the shop to him. Shanker Dutt could not, therefore, claim any right of occupancy on the basis of the allotment order. The allotment order was simply an order calling upon the appellant to let out the accommodation to him and so long as it was not let out to him he acquired no rights whatsoever. If the appellant disobeyed the order by not letting it out to him he could be punished as provided under the Act but he did not acquire any right of occupancy. What happened simply is this that he continued to be in occupation as before. The District Magistrate, therefore, illegally refused to consider the appellant's application for release of the shop, which was a part of an accommodation, in his favour.;