Decided on August 09,1965

DINA NATH Appellant
The Rent Control And Eviction Officer, Jaunpur And Another Respondents


S.C. Manchanda, J. - (1.)THIS is a writ petition under Article 226 of the Constitution by the allottee and is directed against the order cancelling the allotment order dated May 9, 1962 in his favour by the successor Rent Control and Eviction Officer by his order dated 31.1.1963.
(2.)THE facts are these, as they emerge from the affidavit accompanying the petition which have not been controverted. House No. 23/1 consisted of two parts, the first floor was in the occupation of the owner while the ground floor which consists of a shop was in the occupation of one Mohammad Usman for a number of years, who was running a Government grain licenced shop therein. Mohammad Usman went to Haj in the year 1961 but did not return. The licence of his grain shop was cancelled in January 1962 and thereafter the shop fell vacant in March 1962. The Petitioner applied for the allotment of premises No. 23/1 on the printed form giving the boundaries of the shop. The landlord also applied for the release of the shop. The then Rent Control and Eviction Officer Mr. S.B. Singh rejected the application of the landlord holding that he had already one shop in his possession and his need was not genuine in respect of the accommodation in dispute. On the 9th of May 1962, the allotment in favour of the Petitioner was made. Therein it was clearly stated that the shop number was 23/1. It was owned by Sri Tribhuwan Nath and it was previously occupied by Mohammad Usman.
The Petitioner's attempts to obtain the shop was further resisted by the landlord opposite party No. 2 who brought a suit No. 143/62 in the Court of the Munsif jaunpur for a permanent injunction restraining. the Petitioner from taking possession of shop No. 23/1 on the ground that the shop had never fallen vacant as after the departure of Mohd. Usman he had continued to run his grain business. The opposite party No. 2 also applied for a temporary injunction restraining the Petitioner from taking possession of premises No. 23/1. A temporary injunction was in the first instance granted but upon the Petitioner's objection, was discharged by an order of the Civil judge dated the 10th July 1962. The opposite party No. 2 filed an appeal to the District Judge who by his order dated the 17th December 1962 dismissed it.

(3.)THEREAFTER the opposite party No. 2 made an application to Mr. A.D. Tewari the successor Rent Control and Eviction Officer. In that application it was no where stated that the allotment had been obtained by misrepresentation or fraud. The burden of the song of the opposite party No. 2 way that there was no vacancy as Mohammad Usman had never vacated the accommodation. Mr. Tiwari thereupon by an order dated 31.1.1963 proceeded to review the earlier order passed and cancelled the allotment made in favour of the Petitioner on the ground that there was misrepresentation. There was absolutely no foundation laid in the application made by the Petitioner for any fraud or misrepresentation. It is elementary that fraud and misrepresentation has to be specifically alleged and proved. The alleged "misrepresentation" seems to be an imaginary one. Nobody had any doubt as to which accommodation had fallen vacant and for which the Petitioner had applied for allotment. The Rent Control and Eviction Officer who made the allotment also had no doubt. The landlord in the suit which he filed in the Civil Court also had no doubt as to the municipal number of the accommodation which was in dispute. It is therefore a little curious how this theory of misrepresentation was got up by the Rent Control and Eviction Officer. In any case, even if the number of the houses applied for allotment was wrongly mentioned, there was no prejudice caused to any body as all the parties including the Rent Control and Eviction Officer knew full well as to what accommodation was being allotted. The Rent Control and Eviction Officer would appear to be clutching at a straw and making a mountain out of a mole hill. The Rent Control and Eviction Officer was conscious of the fact that he could not review the order passed by his predecessor as that order had been passed in the presence of both the parties and was a quasi judicial order, and the only way in which the earlier order could have been set aside was if misrepresentation or fraud was established. Merely because an applicant inadvertently states an incorrect number of the accommodation required to be allotted it will not by any stretch of imagination establish misrepresentation or fraud. It may be noticed that the Petitioner has stated in his affidavit that there is no house at all in that locality bearing house No. 23/2 and therefore no body could possibly have been misled. Misrepresentation involves the element of mens rea and the Rent Control and Eviction Officer had no material whatsoever to arrive at any such conclusion.

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