K. C. Agarwal, J. - (1.) THIS writ petition has been filed by the landlady against the order of the Rent Control and Eviction Officer dated 12-7-1973. The dispute is with regard to a portion of house no. 23, Hamilton Road, Allahabad. THIS house admittedly belongs to the petitioner. It is in the tenancy of Sri Babu Ram Awasthi, respondent no. 3.
(2.) ON 18-11-1972 an application was made by Gaya Prasad Yadav, the respondent no. 4, for allotment of a portion of the aforesaid house on the ground that he had been let in possession of the same by Babu Ram Awasthi on behalf of the landlady and that he was continuously living in the said portion since 1971, therefore, the allotment order be issued in his name. It was also mentioned in this application that as the possession of the respondent no. 4 was with the consent of the agent of the landlady, therefore, he may be deemed to be in authorised occupation of that portion. The Rent Control and Eviction Officer issued notice on the aforesaid application to the petitioner. She filed an objection to the application of Gaya Prasad Yadav on a number of grounds including that Babu Ram Awasthi was not her agent and, therefore, the consent given by Babu Ram Awasthi was not binding on her. She further asserted that the subletting of the portion done by Babu Ram Awasthi was illegal, accordingly, the possession of respondent no. 4 was that of a trespasser and he was liable to be evicted. The Rent Control and Eviction Officer by the order dated 12-7-1973 held that Gaya Prasad Yadav was in possession of the portion in dispute since 1971 with the consent of one Maqbul Husain, who was the agent of the landlady, therefore, the same was covered by Section 14 of the new Act. In this view of the matter the Rent Control and Eviction Officer did not pass any order on the application for allotment made by Gaya Prasad Yadav. He, as stated above, only declared the possession of Gaya Prasad Yadav, as authorised. Aggrieved, the present writ petition has been filed by the landlady. The first question that arises for determination in this writ petition is whether the possession of Gaya Prasad Yadav in the instant case was with the consent of the landlady. It may be recalled that according to Gaya Prasad he had been kept in possession by Babu Ram Awasthi. He had further alleged that Babu Ram Awasthi had been authorised by the landlady to admit respondent no. 4 as a sub-tenant and as he was regularly paying the rent to Babu Ram Awasthi for a portion of the aforesaid house, therefore, he be deemed to be authorised occupant. This claim of respondent no. 4 was disputed by the petitioner as well as by Babu Ram Awasthi. The petitioner alleged that Babu Ram Awasthi did not have her authority to sub-let any portion of the house, therefore, the assertion of Gaya Prasad Yadav that he was residing on behalf of the petitioner with the consent of Babu Ram Awasthi, was incorrect. She also alleged that Gaya Prasad was not her sub-tenant and he was living in possession in collusion with Babu Ram Awasthi. In. a separate objection Babu Ram Awasthi claimed that Gaya Prasad Yadav was not his sub-tenant and as a matter of fact Gaya Prasad Yadav had been permitted to live in the portion in dispute for a short- period as he had been thrown out from his house. Gaya Prasad's possession in the building, according to this objection of Babu Ram Awasthi, was not for the purpose alleged by Gaya Prasad Yadav. The pleading mentioned above would show that the only question which arose for decision before the Rent Control and Eviction Officer was whether Babu Ram Awasthi was the agent of the landlady and he had been authorised to sub-let the portion in dispute to Gaya Prasad Yadav. The Rent Control and Eviction Officer did not, however, consider the case on the pleadings mentioned above but carved out a new case for the respondent no. 4. He held that Maqbul Husain was the agent of the petitioner and as the respondent no. 4 was living in the premises since 1971 within the knowledge of Maqbul Husain, therefore, his possession could be deemed to be authorised under Section 14 of the Act. Gaya Prasad Yadav himself did not plead or give any evidence showing that his possession was with the consent of Maqbul Husain. The petitioner, therefore, had no occasion to assert before the Rent Control and Eviction Officer that Maqbul Husain did not accord any consent on behalf of the petitioner. In the absence of the pleadings and the evidence on the record the Rent Control and Eviction Officer was not justified in creating a new case for the respondent no. 4 and in holding that the possession of Gaya Prasad Yadav was with the consent of the agent of the petitioner. The Rent Control and Eviction Officer, therefore, committed an error in holding that the occupation of Gaya Prasad Yadav would be deemed to be authorised within the meaning of Section 14 of the new Act.
(3.) LEARNED counsel for the contesting respondent also alleged that an order passed under Section 14 of the New Act was appealable before the District Judge, therefore, the writ petition is not maintainable. He could not, however, point out any section under which such an appeal lay. Any determination that the possession of a person is covered by Section 14 of the New Act has not been made appealable under any of the provisions of the said Act. As a fact Section 14 of the New Act does not contemplate any determination. Therefore I do not find any substance in this argument of the learned counsel for the respondent. Further the mere existence of an alternative remedy is no bar to the maintainability of the writ petition and I consider the present case as a fit one for exercise of the discretion under Art. 226 of the Constitution. I over-rule the second argument raised by the learned counsel for the respondent. In the result the writ petition succeeds and is allowed. The order of the Rent Control and Eviction Officer dated 12-7-1973 is quashed. The petitioner will be entitled to receive his costs by the respondent no. 4. Petition allowed.;