S.S. Dhavan, J. - (1.) This is a petition under Article 226 of the Constitution praying for a writ quashing an order of the Rent Control and Eviction Officer, Kanpur, respondent No. 1 allotting the premises in dispute to Vishwa Nath, respondent No. 2. In the affidavit supporting the petition it is alleged that house No. 30/96, Maheshwari Mohal, Kanpur, belonged to one Shrimati Suraj Kali. She executed a usufructuary mortgage in favour of Nand Kishore, petitioner No. 1, by a registered deed dated 30th June, 1948. The aforesaid petitioner was put in possession of the house in pursuance of the mortgage-deed. The upper portion of this house was in occupation of one Shiam Manohar as a tenant. The petitioner Nand Kishore realised rent from him. On 12th June 1956 this tenant vacated his portion and Nand Kishore sent intimation of the vacancy to the Rent Control and Eviction Officer on the same day. No allotment was made by the Rent Control and Eviction Officer within thirty days of the receipt of the intimation by the petitioner. Meanwhile, one Vishwa Nath, respondent No. 2, applied for an allotment. On 13th June 1956 the petitioner Nand Kishore, invoking his right under rule 4 of the Control of Rent and Eviction Rules, selected Badri Prasad, petitioner No. 2, as his nominee. The Rent Control Inspector made enquiries and reported that Badri Prasad's need was genuine. On 8th August, 1956, the Rent Control and Eviction Officer passed an order of conditional allotment of the house in favour of Vishwa Nath the condition being that he must surrender a portion of the house - the lower storey for accommodation to the landlord. The petitioner protested and made a representation to the District Magistrate who directed the Rent Control and Eviction Officer to reconsider the matter. The petitioners alleged that it was proved before the Rent Control and Eviction Officer that Nand Kishore was the mortgagee of the property and was entitled to realise rents from the tenants. But by an order dated 19th October, 1956 the Rent Control and Eviction Officer held that Nand Kishore, being a mortgagee, could not claim the benefit of rule 4 of the Control of Rent and Eviction Rules. Aggrieved by this order the petitioners have come to this Court under Article 226 of the Constitution and pray that it be quashed.
(2.) In his order dated 19th October the Rent Control and Eviction Officer observed: "Shri Nand Kishore is only a mortgagee who cannot claim benefit of rule 4 in this capacity." This observation is the foundation of his order. I am satisfied that the view taken by this officer is erroneous on the face of it.
(3.) Under rule 4 the landlord has been given the right to nominate a tenant under certain conditions, and the District Magistrate is bound to respect his nominee unless he states his reasons in writing for rejecting it and forthwith allots the accommodation to any other person. The question before the Rent Control and Eviction Officer was whether the petitioner Nand Kishore was entitled to the benefit of this rule. In other words, could a mortgagee be treated as a landlord within the meaning of that word as used in rule 4. The word 'landlord' has been defined in section 2 (c) as a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir or assignee of that person. In this case the petitioner alleged before the Rent Control and Eviction Officer that usufructuary mortgage of the property has been executed in his favour, that he was in possession and that he was collecting rent from the tenant. He was, therefore, entitled to the rights conferred on the landlord by rule 4. The observation of the Rent Control and Eviction Officer is erroneous on the face of it.;