Satish Chandra, J. - (1.) ON 29th December, 1952, the shop in dispute was allotted to the Appellant, Mangal Sen. He was, however, unable to obtain possession. Subsequently, the Rent Control Officer passed another order of allotment in favour of Kanhaiya Lal and Co., Respondent No. 2, on December 26, 1956. Respondent No. 2 appears to have instituted a suit for an injunction restraining the Appellant Mangal Sen from taking possession. The validity of the allotment order in his favour was also challenged. The civil court, however, dismissed the suit. It found that the allotment order in favour of the Appellant was valid. This decree was upheld by the High Court in Second Appeal No. 1037 of 1958 (decided on 19 -2 -1959). Thereafter, Mangal Sen made an application before the Rent Control Officer for the cancellation of the allotment order passed in favour of Respondent No. 2. The said Respondent contested the proceedings and assailed the validity of the allotment order passed in favour of Mangal Sen.
(2.) BY a reasoned order dated 25th March, 1960, the Rent Control Officer held that in view of the decision of the Civil Court and the High Court, the allotment order dated 29th December, 1952, was valid in all respects. He also held that the allotment order passed in favour of Respondent No. 2 on December 26, 1956, was procured by fraud and misrepresentation of facts. He therefore cancelled that order. He then held that in view of the decision of this Court in Kali Prasad Basu v. The Rent Control and Eviction Officer, 1959 ALJ 167, even though he had cancelled the allotment order pass d in favour of Respondent No. 2, he had no power to eject him and thereafter, to give possession to Mangal Sen and in this view, the question whether the benefit of the proviso to Sub -section (1) of Section 7 -A of the Rent Control Act ought to be given to Kanhaiya Lal and Co. does not arise for consideration. On these findings, he directed the papers to be filed. In substance, he took no action Under Section 7 -A to put Mangal Sen in possession after ejectment of Kanhaiya Lal and Co. Aggrieved by this order, Mangal Sen came to this Court Under Article 226 of the Constitution. A learned Single Judge, however, dismissed the writ petition, on the finding that the Rent Control Officer did not commit my manifest error of law in following a decision of this Court. The learned judge was referred to another Single judge decision in Syed Kasim Hussain. Rent Control and Eviction Officer, 1960 AWR 406, but he held that this decision could not be deemed to have overruled he earlier Single Judge decision and since this decision was not brought to the notice of the Rent Control Officer, his order cannot be said to be manifestly erroneous in law. On this ground, the writ petition failed. Hence the present appeal. Section 7 -A provides: 7 -A. District Magistrate's power to take action against unauthorised occupants. (1) Where in pursuance of an order of the DM Under Sub -section (2) of Section 7, the vacancy of any accommodation is required to be reported and is not reported, or where an order requiring any accommodation to be let out or not to be let has been duly passed Under Sub -section (2) of Section 7 and he DM believes or has reason to believe hat any person has, in contravention of he said order, occupied the said accommodation or any part thereof, he may sail upon the person in occupation to how cause, within a time to be fixed by him, why he should not be evicted therefrom: Provided that no order under this section shall be passed if the DM is satisfied that there has been undue delay or it is otherwise inexpedient to do so. (2) If such person fails to appear in reply to the notice served Under Sub -section (1) or, f he appears but fails to satisfy the DM that the order Under Sub -section (2) of Section 7 vas not duly passed and that he is entitled to remain in occupation of the accommodation, the DM may without prejudice to any other law of the time being n force, direct him to vacate the premises within a period to be specified. (3) Upon the making of the order Under Sub -section (2) the person against whom the order is made and every person claiming under him shall vacate the accommodation. If the accommodation is not vacated within the time allowed or such extended period as the DM may grant, the DM may evict or cause to be evicted the person or persons and use such force is may be necessary for carrying out the order and also put the person, entitled Under Sub -section (2) of Section 7, in occupation of the accommodation. (4)... ... ... It will be seen that Section 7 -A(1) read with Sub -sections (2) and (3) confers power upon the DM to eject by force a person who has in contravention of the 'said order' occupied an accommodation. The 'said order' refers, inter alia, to an order of allotment that may be passed Under Section 7(2) of the Act. If an order of allotment is parsed in favour of a person Under Section 7(2) the effect of that order is that the landlord is directed to let out that accommodation to the allottee and deliver possession of the accommodation to him. If some other person is in possession of the accommodation, the landlord is deprived of his responsibility of delivering possession to the allottee after entering into a contract of tenancy with him. The continued possession of a stranger thus has the effect of nullifying the order of allotment. In this way, the possession of the stranger would be in contravention of the order of allotment.
(3.) IN the present case, an order of allotment was passed in favour of the Appellant on 29th December, 1952. Obviously, possession of any other person thereafter would, prima facie, be in contravention of that allotment order.;