N.D.Ojha, J. - (1.) PETITIONER no. 1 Pralilad Rai is the Landlord of the accommodation which was the subject matter of proceedings giving rise to the present writ petition. It was in the tenancy of one B.S. Maliesh. It appears that B.S. Maliesh vacated the accommodation and an application was made by petitioner no. 1 for its release in his favour on the ground that the bonafide required it 'or his personal use. Another application was made by respondent no. 3 for allotment of the accommodation in his favour. The application for release was dismissed on 24th April, 1974, so that the need of petitioner no. 1 was not found to be bonafide. On the same date the accommodation was allotted to respondent no. 3. It appears that respondent no. 3 also occupied the accommodation on the same date. Petitioner no. 1 filed an appeal against the order dated 24th April, 1974. The District Judge came to the conclusion that the application for release made by petitioner no. I has been rightly rejected. He however, held that the order of allotment passed in favour of respondent no. 3 was illegal inasmuch as a part of the building was in the occupation of the petitioner for residential -purposes and he had not been given any opportunity to nominate a person of his chofce for purposes of passing an order of allotment in his favour as contemplated by Section 17 (2) of the Act. On this view he set aside the order of allotment and remanded the case back to the Prescribed Authority. Thereafter the petitioner nominated two persons, viz. Kisan Lai, his own father and Gurdas Prasad, petitioner no. 2. The Prescribed Authority did not accept the nomination in favour of Kisan Lal on the ground that he was the father of petitioner no. 1 himself whose application for release had already been dismissed. It may be pointed out that in the application for release Kisan Lal had been shown as a member of the family of petitioner no. 1. The Prescribed Authority, however, allotted the accommodation in fivour of petitioner no. 3 as a consequence whereof the application for allotment made by respondent no. 3 was dismissed. Against that order an appeal was filed by respondent no. 3 which was allowed by the 3rd Additional District Judge on December 11, 1974, on the ground that petitioner no. 2 was just a dummy candidate of petitioner no. 1. It is this order of the Additional District Judge which is sought to be quashed in the present petition.
(2.) IT was urged by counsel for the petitioners that the Additional District Judge was wrong in setting aside the order of the Prescribed Authority allotting the accommodation in favour of petitioner no. 2 on the ground that he was the dummy candidate of petitioner no. 1. According to counsel in view of the plain Language of Section 17 (2) there was no discretion left either with the Prescribed Authority or with the appellate authority to allot the accommodation in question in favour of any person other than the nominee of petitioner no. 1. Reliance was placed on the Language of Section 17 (1) in support of this submission. It will be useful to quote Section 17 at this place in order to appreciate the submission made by counsel for the petitioners:- "17 (1) Where the District Magistrate receives an intimation, under sub-section (1) of section 15, of the vacancy or expected vacancy of a building any allotment order in respect of that building shall be made and communicated to the landlord within twenty-one days from the date of receipt of such intimation and where no such order is so made or communicated with the said period, the landlord may intimate to the District Magistrate the name of a person of his chofce and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination: Provided that where the landlord has made an application under clause (b) of sub-section (1) of section 16, for the release of the whole or any part of the building or land appurtenant thereto in his favour, the said period, of twenty one days shall be computed from the date of decision on that application or where an application for review or an appeal is filed against such decision, from the date of decision on such application or appeal. (2) Where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour under clause (b) of sub-section (1) of section 16 for residential purposes, the allotment of the remaining part thereof under clause (a) of the said sub-section (1) shall be made in favour of a person nominated by the landlord."
(3.) IT was urged that while the words ".....unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination"; were used in Section 17 (1), these words were deliberately not used in Section 17 (2). According to counsel this clearly indicate that the intention of the legislature was not to give power to the District Magistrate to allot the accommodation in cases covered by section 17 (2) to any other person other than the nominees of the landlord even for special and adequate reason. In may opinion there is no substance in this submission. Section 16 deals with the allotment and release of vacant buildings. Subsections (1) and (2) of Section 16 read as follows:- "16 (1) Subject to the provisions of this Act, the District Magistrate may by order- (a) Require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone to any person specified in the order (to be called an allotment order); or (b) Release the whole or any part of such building or any land appurtenant thereto, in favour of the landlord (to be called a release order). Provided that in the case of a vacancy referred' to 'in sub-section (4) of section 12, the District Magistrate shall give an opportunity to the landlord or the tenant as the case may be of showing that the said section is not attracted to his case before making an order under clause (a). (2) No release order under clause (b) of sub-section (1) shall be made unless the District Magistrate is satisfied that the building or any part thereof or any land appurtenant thereto is bona fide required either in its existing form or after demolition and new construction, by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, calling or where the landlord is the trustee of a public charitable trust, for the objects of the trust, or that the building or any part thereof is in a dilapidated condition and is required for purposes of demolition and new construction, or that any land appurtenant to it is required by him for constructing one or more new building or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings: Provided that no application under this sub-section shall be entertained for the purposes of a charitable trust the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste, or place of birth." ;