S. D. Agarwala, J. - (1.) :-
(2.) THESE are two connected petitions under Article 226 of the Constitution of India arising out of a proceeding in respect of an allotment of a shop no. 128 Gandhi Road, Khurja, District Bulandshahr. One Laxman Das was originally the tenant of the said shop. The owners and the landlords of the premises are Mohammad Ahmad and Mohammad Umar. They filed a suit for ejectment against Laxman Das. A decree was passed against Laxman Das which was maintained upto the Hon'ble High Court. On 22nd August, 1977 Mohammad Ahmad and Mohammad Umar got possession of the said shop from Laxman Das. The case of the landlord is that thereaftar they intimated to the District Magistrate about the vacancy on 27th August, 1977. Prior to this date, on 11th August, 1977, Dr. Bashiruddin had filed an application for allotment. On 29th August, 1977, Jagjeet Sagar also filed an application for allotment in his favour. Ultimately, on 3rd October, 1978 the premises were allotted by the Rent Control and Eviction Officer in favour of Jagjeet Sagar. Against the decision of allotment dated 3rd October, 1978, two revisions were filed in the court of the District Judge, Bulandshahr-one by Dr. Bashiruddin and the other by the owner-landlords namely, Mohammad Ahmad and Mohammad Umar. Both these revisions were allowed and the allotment order in favour of Jagjeet Sagar was set aside and the case was remanded to the Rent Control and Eviction Officer for decision afresh by judgment dated 1st August, 1979 passed by the 1st Additional District Judge, Bulandshahr. Writ Petition No. 7222 of 1979 has been filed by Jagjeet Sagar against the order dated 1st August, 1979 while Dr. Bashiruddin has filed Writ Petition No. 9758 of 1979 against the same order. Both these petitions, having arisen against the same order, have been connected and had been decided by one judgment. Learned counsel for Jagjeet Sagar has urged that the view taken by the revisional court that the District Magistrate has no 'jurisdiction to allot the building in favour of a third person after the expiry of ten days from the receipt of intimation of nomination is a view erroneous in law. He has further urged that under rule 10 (5) (d) of the rules framed under the Act, Dr. Bashiruddin was in an unauthorised possession and the view to the contrary taken by the revisional court is patently erroneous. Learned counsel for Dr. Bashiruddin has, however, urged that the revisional court has acted illegally and with material irregularities in exercising his power in remanding the matter to the Rent Control and Eviction Officer when on the face of the record it was apparent that the possession of Dr. Bashiruddin was in accordance with law, and as such the. possession of Dr. Bashiruddin should have been held to be valid in law and no further consideration is required.
(3.) SECTION 17 of the U. P. (R. L. Rent and Eviction) Act (Act No. XIII of 1972), hereinafter referred to as Act, runs as follows ;- "17. Conditions of making allotment order -Where the District Magistrate receives an intimation, under sub-section (1) of SECTION 15 of the vacancy or expected vacancy of a building any allotment order in respect of that building shall be made and communicated to the landlord within twenty-one days from the date of receipt of such intimation and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choice, and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reasons to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination. Provided that where the landlord has made an application under clause (b) of sub-section (1) of SECTION 16, for the release of the whole or any part of the building or land appurtenant thereto in his favour, the said period of twenty-one days shall be computed from the date of decision on that application or where an application for review or an appeal is filed against such decision, from the date of decision on such application on appeal. (2) Where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour under clause (b) of sub-section (1) of SECTION 16 for residential purposes, the allotment of the remaining part thereof under clause (a) of the said sub-section (1) shall be made in favour of a person nominated by the landlord." The above Section 17 clearly lays down that after the receipt of an intimation by the District Magistrate under Section 15 (1), the allotment order has to be made by the District Magistrate within twenty-one days from the date of the receipt of the said intimation and further where no such order is so made or communicated within the said period, it will be open to the landlord to nominate a person of his choice and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate Reasons to be recorded he allots it to any other parson within ten days from the receipt of the intimation of nomination. The position therefore, is that after the receipt of intimation of vacancy, the District Magistrate has been empowered to allot the building to any person. If no such allotment is made within twenty one days, then a choice has been given to the landlord to nominate a person. In case the landlord exercises his choice of nominating a person, then further power hps been given to the District Magistrate to allot the premises to any other person after he records special and adequate reasons. This power can be exercised within only ten days of the receipt of the intimation. If such allotment is not made, then after ten days, the building has to be allotted to the person nominated by the landlord. In my opinion, the fact that after the intimation of nomination, the District Magistrate has been left with the discretion to allot the building within ten days to any other person for special and adequate reasons indicates that after the expiry of ten days, there is no other option left to the District Magistrate except to allot the accommodation to the person nominated. The provision, in my opinion, is mandatory. After ten days expired, within which the discretion of the District Magistrate could be exercised the District Magistrate has to allot the building to the person nominated by the landlord.;