S. C. Mathur, J. - (1.) THIS petition was originally directed against the order dated 8-10-77 passed by the Second Addl. District Judge, Pratapgarh, whereby he allowed the revision of the owners of the property in dispute, opposite parties 1 and 2, and cancelled the allotment order dated 16-5-1977 passed by the Prescribed Authority In favour of the petitioner. After setting aside the allotment order made in favour of the petitioner, the learned Addi. Distt. Judge directed the Prescribed Authority for disposing of the allotment matter afresh according to law taking in to account the observations made in the judgment. In pursuance of the direction made by the learned Additional District Judge, the Prescribed Authority, during the pendency of the writ petition, passed Order dated 5-12-77 by which It rejected the petitioner's application for allotment of the property in dispute. Thereafter an order was passed on 24-1-1978 by which the petitioner's revision directed against the order dated 5-12-1977 was rejected by the IV Additional District Judge, Pratapgarh, Opposite Party no. 5. The instant petition is directed against orders dated 8-10-77, 5-12-77 and 24-1-1978.
(2.) THE dispute in the petition pertains to house no. 10/2 Shanker Sadan, Mohalla Babaganj, district Pratapgarh. This property fell vacant and the vacancy was notified on 30-4-1977. On 16-5-1977 the Prescribed Authority made an order of allotment in favour of the petitioner. On 17-5-1977 the owners moved an application for direction to the petitioner to make payment of presumptive rent. This application was allowed on the same date and one month's presumptive rent was paid by the petitioner to the owners. It appears that the petitioner obtained possession of the property in dispute on 21-5-1977. However, on 25-5-1977, the owners preferred a revision before the learned District Judge which came up for hearing before the Second Additional District Judge, Pratapgarh. Before the learned Additional District Judge an application was moved on behalf of the owners on 11-8-1977 through which it was brought to the notice of the learned Additional Judge that the petitioner had obtained allotment order In his favour by concealing a material fact. This material fact was stated to be the ejectment decree passed against the petitioner's father on 28-8-1976 in respect of an accommodation owned by some other landlord. THE learned Additional District Judge found that the averment made on behalf of the owners was correct. Observing that the petitioner concealed the disqualification which disentitled him to the order of allotment, the learned Addl. Distt. Judge cancelled the order of allotment made on 16-5-1977. After the remand order, the Prescribed Authority, has also rejected the petitioner's application for allotment on the same ground, namely, that in view of the ejectment decree passed against the petitioner's father, he was not entitled to an order of allotment for a period of two years. THE petitioner has assailed the orders referred to herein. Sri Shafiq Mirza learned counsel for the petitioner had initially argued that the two authorities below had relied upon a provision which was not in existence in the year 1977 when the order of allotment was passed in favour of the petitioner. The two authorities below had referred to Rule 10 (5) (a) in their orders. Rule 10 (5) (a) in its existing form was introduced with effect from 25-5-1977. The Rule in its existing form reads as follows :- "(5) A building shall not ordinarily be allotted to the following persons or for the following purposes- (a) A tenant against whom a decree or order has been passed for ejectment on any ground in clauses (a) to (f) of sub-section (1) of section 3 or under section 7-B of the old Act or any ground mentioned in clauses (a) to (f) of sub-section (2) section 20 during the period of two years from the date of such decree or order or any member of his family or any person of whose family he is a member." Sri Pradeep Kant learned counsel for the opposite parties 1 and 2 has conceded that the above rule was introduced with effect from 23-3-1977 but he submitted that the rule in a different form existed even at the time the allotment order was made in favour of the petitioner. The submission of the learned counsel is correct. Earlier the rule existed in the following form :- "(5). No building shall ordinarily be allotted to the following persons or for the following purposes- (a) A tenant against whom a decree or order has been passed for ejectment on any ground mentioned in clauses (a) to (f) of sub-section (1) of Section 3 or under Section 7-B of the Old Act or any ground mentioned in clauses (a) to (f) of sub-section (2) of Section 20 during a period of two years from the date of such decree or order or any member of his or any person of whose family he is a member." A comparison of the old rule with the existing rule will indicate that there is no material difference between the two provisions. The prohibition regarding allotment for a period of two years is contained in both the rules in the same set of circumstances. The learned Additional District Judge has reproduced rule 10 (5) (a) and this reproduction is of the rule as enforced from 25-5-1977. This, however, does not vitiate his order because the prohibition contained in the present rule is the same as was contained in the rule in existence at the time of making the allotment order. The learned counsel for the petitioner, however, argued that the above rule does not contain an absolute prohibition against allotment inasmuch as the word 'ordinarily' has been used. It is true that the word 'ordinarily' has been used which would indicate that the jurisdiction of the Prescribed Authority to pass an allotment order is not completely barred. However, in view of the use of the word 'ordinarily', the Prescribed Authority will have to indicate some circumstance justifying allotment in favour of a person who comes within the prohibited category. No special circumstance could be pointed out before the Prescribed Authority on behalf of the petitioner.
(3.) SRI Mirza next argued that the owners having got the presumptive rent determinated and having accepted one month's rent and having delivered possession to the petitioner are estopped from challenging the order of allotment passed in favour of the petitioner. The learned counsel for the opposite parties, however, argued that the application for presumptive rent was moved in ignorance of the fact that a decree for ejectment had been passed against the petitioner's father. Learned counsel also argued that it was the duty of the petitioner himself to disclose this fact In bis application for allotment. The fact that the information was not given in the application for allotment by the petitioner is apparent from the finding recorded by the learned Additional District Judge. The learned Additional District Judge has observed that the petitioner concealed the disqualification before the Prescribed Authority. On behalf of the petitioner a copy of the application for allotment moved by him has not been brought on the record by the learned Additional District Judge regarding concealment of the disqualification is incorrect From the material on record it does appear that initially the owners had no objection to the property in dispute being let out to the petitioner. However, when they acquired information of the fact that a decree for ejectment had been passed against the petitioner's father on the basis of default in payment of rent, they became reluctant to let out the property in favour of the petitioner. Since a statutory provision is there against allotment in favour of a person committing default in payment of rent, the opposite parties cannot be denied the right to place reliance upon the said provision. Sri Mirza next submitted that Rule 10 (5) (a) applies when allotment is sought of the building in respect of which decree or order for ejectment has been made against the applicant for allotment or against a. member of his family as against a person of whose family he is a member and it does not apply when allotment is sought in respect of an altogether different building. The argument is countered by Sri Pradeep Kant, the learned counsel for the landlord opposite parties. According to him the Rule does not prescribe disqualification with reference to the buildings but with reference to "persons" and "purposes". On this basis he argued that the term "building" used in sub-rule (5) cannot be confined to the building in respect of which ejectment decree of the nature specified in clause (a) has been passed. The learned counsel further argued that the term building will have to be assigned the same meaning in respect of all the clauses of sub-rule (5) but this uniformity cannot be maintained if the argument of the petitioner's learned counsel is accepted. In order to appreciate the argument the other clauses of sub-rule (5) may also be reproduced. They are as follows, as they existed prior to the amendment of 1977 :- "(b) For residential accommodation of employees of business concerns who are allowed by their employers full reimbursement of house rent paid by them ; (c) For residential accommodation of a person already occupying a building governed by the Act or any public premises other than any premises granted to him free of rent in connection with the discharge of any duties of public nature and situated anywhere in the State or any member of the family of such person or any person of whose family he is a member, except where such person will vacate the other building or public premises at the time of allotment ". ;