- (1.) BY this writ petition under Article 226 of the Constitution the petitioner seeks issue of a writ of mandamus directing the Rent Control and Eviction Officer, Kanpur, opposite party No. 3, the district Magistrate, Kanpur, opposite party No. 4, and the State of Uttar Pradesh, opposite party no. 5, not to give effect to the allotment order dated 12-7-1950, passed by opposite party No. 3. Opposite party No. 1, Mohan Lal Tiwari is the person in whose favour the allotment order was passed and opposite party No. 2, Panna Lal is the person who, according to the petitioner, is occupying the accommodation allotted by this order and whom the petitioner wants to retain us occupant of that accommodation. The petitioner claims to be the owner of the accommodation. The fact that the petitioner is the owner of the accommodation is not contested by the opposite parties. The only opposite party who filed a counter-affidavit is opposite party No. 1 Mohan Lal Tewari. No counter-affidavits have been filed by any of the other four opposite parties.
(2.) WHEN this petition came up for hearing before me, learned counsel for the petitioner sought permission to argue first one point which was more or less a question of law and that related to the authority of opposite party No. 3 to pass the order challenged by this writ petition. The post of opposite party No. 3 at the time of the order of allotment was held by Shri P. S. Tandon who, it appears, was a probationary Deputy Collector. According to the affidavit filed in support of the petition, no express order was passed by the district Magistrate of Kanpur authorising Shri P. S. Tandon to perform the functions of the district Magistrate under the U. P. (Temporary) Control of Rent and Eviction Act or under any of the provisions of that Act. The affidavit says that the District Magistrate only passed one single order which was to the following effect : "a probationary Deputy Collector is being posted here. He will take up house and rent control work. "
(3.) THERE are two aspects which are of importance. The first is that this order was passed at a time when Shri P. S. Tandon had not yet taken over charge in the district of Kanpur and was still being posted to that place. The latter portion of the order cannot, therefore, be deemed to be an order authorising him to perform the functions of a District Magistrate as no such order could be passed until he had already taken over charge in the district and had become subordinate to the district Magistrate so that the District Magistrate might have authority to delegate the powers to him. The second aspect is that the language used in the order of the District Magistrate merely indicates that the District Magistrate was considering, at that time what would be the distribution of work among the officers and he said that Shri P. S. Tandon would take up house and rent control work. In recording this order, it does not appear that the District Magistrate intended by the order passed to confer authority on Shri P. S. Tandon to perform the functions of a District magistrate under the U. P. (Temporary) Control of Rent and Eviction Act. In the counter-affidavit Mohan Lal Tewari contented himself by stating that the assertion made by the petitioner in his affidavit that Shri P. S Tandon was not a duly appointed officer under section 2 (d), U. P. (Temporary) Control of Rent and Eviction Act was denied. In case there was any proper order actually conferring the authority on Shri P. S. Tandon, the opposite party in his affidavit could have re-produced it or at least made a reference to it. It may be noticed that, in this case, the Rent Control and Eviction Officer of Kanpur was himself an opposite party and so was the District Magistrate of Kanpur. No counter-affidavits have been filed on their behalf and no attempt has been made to contest the correctness of the allegation made by the petitioner in para No. 23 of his affidavit that only one single order was passed by the District Magistrate which was to the effect mentioned above. Hence it must be held that no other order was passed conferring authority on Shri P. S. Tandon to perform the functions of the district Magistrate under the Act.;