Mehrotra, J. - (1.) THIS is a petition under Article 226 of the Constitution praying that the order of allotment passed in favour of the opposite party No. 3 be quashed and that the order of the Commissioner in revision against that order be also quashed.
(2.) THE opposite party No. 4 is the owner of premises No. 7/114 Swarupnagar, Kanpur. The Petitioner alleges that he has been in possession of this premises as a tenant for the lasts 20 years on the ground -floor and he continued to occupy that portion continuously without break. On being given out that the house was vacated to the Rent Control and Eviction Officer who on that re presentation allotted the accommodation under the tenancy of the Petitioner on the ground -floor of premises No. 7/114, to Sri Faqir Chand Srivastava on 20 -10 -953. A writ petition was filed by the Petitioner in this Court as the allotment, according to the Petitioner, was made without the premises being vacant. During the pendency of the writ petition some other premises were allotted to Sri Faqir Chand Srivastava and he wrote to this Court on 11 -2 -1955 that he no longer needed the accommodation and he was not therefore willing to contest the writ petition. On 15 -3 -1955 however the petition was rejected on the ground that the remedy of the Petitioner was to go up in revision to the Commissioner. Certain other observations were also made by this Court in the course of that order which will be considered at the proper time. After the decision in the previous writ petition the landlord approached the District Magistrate again and the Rent Control and Eviction Officer allotted this premises on 1 -6 -1955 to one Sri S.P. Pandey opposite party No. 3 to this petition. The landlord also filed a suit against the Petitioner treating him a tenant up to 30 -9 -1953 and thereafter as a trespasser for the recovery of certain amount as damages for use and occupation for the period during which he was treated as a trespasser. When the Petitioner came to know that the Rent Control and Eviction Officer was going to allot the premises he filed a petition before the Rent Control and Eviction Officer intimating him that he had been in continuous occupation of the house and the premises had never fallen vacant. The Petitioner's contention is that the order of allotment was received by post on 7 -10 -1955. On 10 -6 -1955 the Rent Control and Eviction Officer sent a notice to the Petitioner directing him to appear on 18 -6 -1955. The Petitioner complains that this notice was not served on the Petitioner till 13 -6 -1955. He however filed an application for giving him time for producing documentary evidence. The objection to the allotment had already been filed on 13 -6 -1955. The Rent Control and Eviction Officer fixed 28 -6 -1955 for the hearing of the objections; but the landlord applied to the District Magistrate for a direction that possession will be given to the allottee soon as the present Petitioner was likely to obtain an injunction from the civil court. The District Magistrate on 14 -6 -1955 directed the Rent Control and Eviction Officer to see that possession was delivered to the allottee expeditiously. The Rent Control and Eviction Officer had ordered the matter to be fixed on 24 -6 -1955. The District Magistrate however on an earlier date asked for a report from the Rent Control and Eviction Officer as to why he was delaying police possession in the matter. On 26 -5 -1955 the file was sent to the District Magistrate by the Rent Control and Eviction Officer with his note. The District Magistrate ordered on 21 -6 -1955 that the objections should have been summarily decided as the objections to the allotment had already been considered. He however directed that the objections may be heard on 24 -6 -1955. On 25 -6 -1955 the Rent Control and Eviction Officer then passed the order that the parties were present before him and a similar objection filed by the Petitioner was before the District Magistrate when the question of allotment was being considered. After considering the objections the District Magistrate passed orders of allotment in favour of Sri S.P. Pandey holding that the premises were vacant for purposes of allotment. These objections therefore cannot be entertained afresh and were rejected. He directed that possession be delivered to the allottee by vacating the premises by 28 -6 -1955. It was further provided in the order that it was to be deemed sufficient notice under Section 7A(2) by the objector and was to be complied with. In case he failed to comply within that time the file was to be put up before the committee for action under Section 7A(3). Against this order a revision was filed before the Commissioner and it was dismissed on 4 -2 -1956. The Petitioner by means of this application under Article 226 of the Constitution has challenged the order of the Commissioner and the allotment order made in favour of Sri S.P. Pandey. It appears that after the revision was filed to the Commissioner against the order of the Rent Control and Eviction Officer which was passed under Section 7A(2) another order was passed by him under Section 7A(3) and the Commissioner entertained revision against that order also and disposed of both the revisions on 4 -2 -1956.
(3.) NOTICES were issued to the opposite parties. Counter -affidavits have been filed by the landlord opposite party No. 4 and the State. In the counter -affidavit filed on behalf of the opposite party No. 4 it is stated that when the Petitioner came up under Article 226 of the Constitution to this Court against the earlier order of allotment in favour of Sri Faqir Chand Srivastava this Court made the following observations in the judgment: It may, however, be pointed out that Shri Faqir Chand Srivastava, allottee, has been given another house and he is no longer desirous of occupying this house. The result, therefore, is that even if it be taken for granted that the Petitioner's right to remain in occupation of the house has finally terminated, there is a case of fresh vacancy and the Petitioner can apply again to the Rent Control and Eviction Officer for allotment. Such an application, if made, will be considered by the Rent Control and Eviction Officer along with other applications, if any.;