G.C.MATHUR,J. - (1.) JUDGEMENT This is a special appeal against an order of a learned single judge allowing Writ Petition No. 1437 of 1957 and quashing the order of allotment dated March 27, 1957, the order dated April 1, 1957, under S. 7-A of the U.P. Control of Rent and Eviction Act (hereinafter referred to as the Act) made by the Rent Control and Eviction Officer, Pilibhit, and the order of the Commissioner dated May 9, 1957, in revision.
(2.) THE respondent No. 1, Ram Narain Lal, in the owner, of a shop at Pilibhit. One Harish Bajpal was the tenant of this shop. The tenant vacated the same on or about December 30, 1956. Thereafter on January 5, 1957, the respondent landlord wrote to the Rent Control and Eviction Officer intimating that the shop had become vacant and asking that it be released in his favour. This application was received by the Rent Control and Eviction Officer on January 5, 1957. No allotment order was made by the Rent Control and Eviction Officer till March 27, 1957, when he allotted the shop in favour of respondent No. 2, Mohammad Shafi. In due course the Rent Control and Eviction Officer initiated proceedings under S. 7-A of the Act for the eviction of respondent No. 1. Respondent No. 1 filed certain objections to the proceedings under S. 7-A. Those objections were rejected by an order dated April 1, 1957. Against that order the petitioner filed a revision before the Commissioner, but the revision was also dismissed by an order dated May 9, 1957. Thereupon the petitioner filed a writ petition before this Court. The only point that appears to have been raised before the learned single Judge by respondent No. 1 was that the order of allotment was without jurisdiction as it was passed more than thirty days after the intimation of vacancy was received by the Rent Control and Eviction Officer. This contention found favour with the learned single Judge with the result that he allowed the writ petition and quashed the impugned orders. The learned single Judge has held that R. 3 of the Control of Rent and Eviction Rules, 1949 limited the time within which the District Magistrate could make an order of allotment to thirty days and that since in the present case the order of allotment was not made within this period the District Magistrate had forfeited his right to make any order of allotment. The appellants contend that the view of the learned single Judge that the District Magistrate lost all jurisdiction and power to make an order of allotment after the expiry of thirty days from the date of receipt of the notice of vacancy is erroneous and that R. 3 did not and could not take away the jurisdiction of the District Magistrate to make an order of allotment even after the expiry of thirty days. In support of their contention the appellants rely upon the decision of a Division Bench of this Court in Ram Avtar v. Rent Control and Eviction Officer, Jhansi, 1959 All LJ 8 : (AIR 1959 All 877). This case fully supports the contention of the appellants. It has been held in this case that though it is desirable that an order of allotment should be made within thirty days, the District Magistrate or the Rent Control and Eviction Officer does not lose power or jurisdiction to make an order of allotment even after the expiry of that period. Learned counsel for the respondent No. 1 has brought to our notice certain observations made in Dr. A.C. Dass v. T. R. O. and D. S. O., Lucknow, 1962 All LJ 553 at p. 559. These observations are to the same effect as the decision of the learned single Judge under appeal; but in our opinion these observations are mere obiter dicta and have no binding force. Learned counsel for respondent No. 1 also referred us to the decision of a Full Bench of this Court in Ram Surat Singh v. Rent Control and Eviction Officer, 1964 All LJ 412 : (AIR 1965 All 49) (FB), but in our opinion the Full Bench decision is not relevant to (he decision of the question before us.
(3.) WE are clearly of the view that the District Magistrate or the Rent Control and Eviction Officer is not deprived of his power and jurisdiction to pass an order of allotment even after the expiry of a period of thirty days from the date of receipt of the intimation of vacancy. There are two reasons for taking this view. The first is that if Rule 3 were to be interpreted as cutting down the power of the District Magistrate to make an allotment and limiting the exercise thereof to thirty flays from the date of receipt of the intimation of vacancy, it would result in a conflict between R. 3 and S. 7(2) of the Act and such an interpretation should be avoided. S. 7(2) of the Act confers power upon the District Magistrate to make orders of allotment. The Act places no restriction as to the time within which this power has to be exercised. The rules have been made under S. 17 of the Act to give effect to the purposes of the Act. The rules cannot cut down the power or jurisdiction conferred upon the District Magistrate by the Act. If the rule were interpreted in the manner in which the learned single Judge has done, then it would be curtailing the jurisdiction of the District Magistrate which has been conferred upon him by S. 7(2) and there would arise a conflict between the provisions of S. 7(2) of the Act and R. 3 which may render R. 3 invalid. An interpretation which avoids such conflict should be adopted. Accordingly, R. 3 should be interpreted as directing that the District Magistrate should make an order of allotment, as far as possible, within thirty days of the receipt of intimation of vacancy and it should not be interpreted to include a negative injunction that the District Magistrate shall not make any order of allotment after the expiry of these thirty days. ;