R. M. Sahai, J. - (1.) IN this landlord's petition the principal question that arises for consideration is whether Rent Control and Eviction Officer could have declared vacancy even though decree for eviction passed against the sitting tenant was not executed. Admittedly Saharanpur Cooperative Sugarcane Development Union Limited was tenant of the petitioner. As premises was sub-let by the tenant a suit for ejectment was filed which was decreed. After the decree was passed one Shiv Nath Sharma intimated Rent Control and Eviction Officer on 3-5-1980, that as decree for ejectment had been passed the premises were likely to fall vacant and order for allotment may be passed in his favour. On 23rd July, 1980 petitioner also filed an application praying that as premises in dispute were in a dilapidated condition they may be released in her favour for demolition and reconstruction. It was also alleged that she bonafide needed the same. On this application for release notices appear to have been sent to the aforesaid Union as well. Affidavits were exchanged between parties. Shiv Nath Sharma challenged the claim of petitioner that building was dilapidated. The Rent Control and Eviction Officer after considering the evidence on record declared that premises were vacant by order dated 15-10-1980. The claim of tenant, that is, the Union that there was no vacancy was not accepted. It was also held that it was clear from application filed by petitioner herself that a decree for ejectment had been passed against the sitting tenant. After declaring vacancy the application for release and allotment were decided by a common order dated 30-4-1982. The Rent Control and Eviction Officer held that from the evidence filed on behalf of petitioner it was not established that building was dilapidated, therefore it could not he released in her favour. As regards allotment he allowed the application of opposite party no. 3 out of a number of applicants. Against this order landlady's revision was dismissed. She has come to this Court.
(2.) IT has been argued that as decree for eviction passed against sitting tenant was not executed the Rent Control and Eviction Officer had no jurisdiction to pass any allotment order as there was no vacancy. Reliance has been placed on Lachhmi Narain v. Rent Control and Eviction Officer, 1962 AWR 161. IT is urged that the facts of the case being similar to the facts of the present case, the ratio laid down in that decision squarely applies and the order passed by the Rent Control and Eviction Officer is liable to be quashed. As great reliance has been placed on this decision it is necessary to mention few dates which were material for deciding the controversy in that case. On 28th September, 1955 decree for eviction was 'passed. On 29th March, 1956 appeal was dismissed. On 30th March, 1956 an application was made by opposite party-allottee intimating the Rent Control and Eviction Officer that the premises in dispute were likely to fall vacant. An inspection was made on 4-4-1956 and 11-4-1956. IT was allotted in favour of the applicant. The Division Bench observed : " But we are of opinion that in the circumstances of this case the shop could not be said to be about to fall vacant on 11-4-1956 " The Division Bench observed further that 'he passed allotment order simply because Shanker Dutt informed him that it was about to fall vacant'. He himself did not make any enquiry to ascertain whether it was about to fall vacant or not. 'We consider that so long as the executing Court had not issued a warrant for delivery of possession it could not be said that the shop was about to fall vacant and the District Magistrate had no jurisdiction to issue an order to the appellant directing him to let it out. He certainly could not issue an order before the shop was about to fall vacant. According to learned counsel the observation made by the Division Bench that so long the executing Court had not issued a warrant for delivery of possession the shop could not be said to be likely to fall vacant is the principle culled out from this decision and the facts being similar in this case, as neither the decree was executed nor warrant of delivery of possession was issued it should be as held as was done by the Division Bench that there was no likelihood of the shop being falling vacant and no order could have been passed. IT is complete misunderstanding of the ratio laid down by the Division Bench. IT need not be emphasised that the decision has to be read in the context in which it had been given. The Division Bench took every precaution by expressing the opinion in the circumstances of the case. Further they were careful to observe that no enquiry was made by the Rent Control and Eviction Officer after receiving the intimation that the shop was likely to fall vacant. In other words, according to Division Bench, what was the material was whether the enquiry was made by the Rent Control and Eviction Officer about the likely vacant or not. If no enquiry was made then so long the decree was not executed it could not be held that premises were vacant as a matter of law. In this case inquiry was made and then vacancy was declared. Reliance was then placed on Sri Deo Ji Bhai v. VI Addl. District Judge, 1979 ARC 201. In this decision it was observed that 'in a case where a decree has been obtained against a tenant the premises cannot be said * to be likely to fall vacant so long as the executing Court has not issued a warrant for delivery of possession'. These observations were made because even before the decree for eviction was passed intimation was sent by certain persons to the Rent Control and Eviction Officer that as the tenant had sublet the premises which was contrary to the provisions of law the premises were likely to fall vacant. On this intimation and it appears without making any further enquiry the Rent Control and Eviction Officer passed allotment order in favour of those applicants. When it came to the knowledge of the parties concerned, they moved an application before the Rent Control and Eviction Officer that the Order has been obtained by practising fraud. The Rent Control and Eviction Officer was satisfied and he recalled his order. This order was set aside in appeal but the learned single Judge relying on the ratio laid down in the Division Bench above quashed the order. As the order of allotment was obtained by fraud and no enquiry was made by the Rent Control and Eviction Officer about the vacancy as contemplated in law the entire proceedings were vitiated. Fraud vitiates all proceedings. The ratio is not helpful. Reliance is also placed on Niren Kumar Das v. Distt Judge, 977 AWC 14 . In this decision also reliance was placed on the Division Bench decision but neither any enquiry was made nor there was anything on record to show that intimation had been given by the Kent Control and Eviction Officer that premises were vacant. The order of allotment was passed only because the decree for ejectment had been passed. Reliance was also placed on Smt. Sakina v. VI Addl. District Judge, 1983 ARC 357, it was observed in this decision that 'there is consensus of authorities with the facts that where a decree for eviction had been passed with respect to an accommodation does not perse create a vacancy actually or likely which may form the basis of an allotment order. Decree for ejectment is more or less a nuetral act and something more eventful has to happen, a kind of step forward which would really create a situation susceptible for an allotment order. That is why in cases where the applicant rushed for release or allotment order of such accommodation only on the passing of the decree or decree for execution either allotment orders are not passed, if so passed, are not legally approved'. The ratio itself indicates that it is not only passing of a decree for ejectment which confers jurisdiction on the Rent Control and Eviction Officer to allot premises but there should be something more eventful or a step-forward. In this case, as pointed out, it was not only passing of the decree which resulted in allotment order but intimation by the present allottee and the application filed by the landlady and enquiry made by the Rent Control and Eviction Officer. It may not be out of place to notice following observations made by Supreme Court in Ashok Kumar v. Ist Additional District Judge, 1981 ARC 179 'it is manifest that u/Sec. 16 (1) (a) it is not necessary that the premises must actually become vacant before an application u/Sec. 16 could be filed before the District Magistrate. In the circumstances of the case as a decree for ejectment was under contemplation, it was open to the appellant to have moved the District Magistrate for notifying the vacancy u/Sec. 16 (1) of the Act.' This decision was distinguished in the case of Smt. Sakina (Supra) as no further step was taken for accepting the decree for eviction. On the facts even this requirement was satisfied in this case.
(3.) AS pointed out earlier it was only intimation of likely vacancy but report of Rent Control Inspector and moving of application for release which were events which established that premises was likely to fall vacant. After obtaining decree the landlady not only intimated the Rent Control and Eviction Officer by means of this application that premises were vacant but also wanted release u/Sec. 16 in her favour which obviously could be granted only if the tenant had vacated the premises in dispute. It is not, therefore, open to petitioner to urge that either no enquiry was made or the order passed by the Rent Control and Eviction Officer is contrary to law. The execution of decree for conferring jurisdiction on the Rent Control and Eviction Officer in the circumstances was not very material. Learned counsel then argued that while dismissing the release application the Rent Control and Eviction Officer permitted the opposite party-allottee to participate, therefore, the order is vitiated. The argument is again devoid of any substance. As observed earlier the order of release and allotment is common order. Although in the order it has been mentioned that affidavits were filed by parties and the prospective allottee had challenged claim of petitioner that building was dilapidated but while recording the finding he did not rely on any material brought on behalf of landlady. He was satisifed from the affidavit filed by petitioner that the building was dilapidated and she bonafide needed it. It cannot, therefore, be said that while deciding the release application the Rent Control and Eviction Officer was in any case prejudiced. Apart from it as mentioned earlier as the proceedings had started on an application filed by the prospective allottee that the premises was likely to fall vacant and notice was sent to the landlady who filed an application for release and the sitting tenant also appeared, it cannot be said that the prospective allottee was permitted to participate only for the purpose of release. As all the proceedings were going on simultaneously it is not possible to uphold the contention only because he had filed documents and affidavits.;