A.P. Srivastava, J. - (1.) This is an appeal against an order of Mr. Justice Mehrotra by which he rejected a petition filed by the Appellant u/Art. 226 of the Constitution.
(2.) The dispute relates to two shops in premises No. 49/62 Nayaganj, Kanpur. The premises belong to Respondents Nos. 4 & 5. The shop was originally in the occupation of one Sarveshwar Prasad who subsequently took Radha Kishan as partner. The business in the shop was thereupon carried on in the name of Sarveshwar Prasad Radha Kishan. Learning that the shop was going to be vacated, the Respondent No. 3, Ram Pratap Sharma, applied to the Rent Control and Eviction Officer of Kanpur that the shop be allotted to him and an allotment order was passed in his favour on 7-1-1953. Ram Pratap Sharma applied to be put in possession of the shop. Two applications in revision against the order of allotment in favour of Ram Pratap Sharma were However filed before the Commissioner on behalf of Sarveshwar Prasad Radha Kishan, but they were dismissed on 29-9-1953. After the dismissal of the revision applications Ram Pratap Sharma again applied for delivery of possession and this time he wanted police help too. 22-10-1953 was fixed for the disposal of this application. As the file was reported to be untraceable the case was adjourned, first to 9-11-1953, then to 23-12-1953 and then again to 8-1-1954. In the meantime the Appellant, Suraj Narain, applied for an allotment of the shop in his own favour, and an allotment order was actually passed in his favour on 18-11-1953. The Appellant Suraj Narain is the younger brother of Radha Kishan, one of the partners of the firm Sarveshwar Prasad Radha Kishan. On 19-11-1953 the Appellant succeeded in taking possession of the shop on the basis of the allotment order that had been passed in his favour on the previous day. On 8-1-1954, when the application of Ram Pratap Sharma for delivery of possession over the shop with police help was put before the Rent Control and Eviction Officer for disposal, the Appellant appeared and pointed out that the shop had been allotted to him on 18-11-1953, and he had already entered into possession. He therefore prayed that the proceedings on the application of Ram Pratap Sharma be dropped. The Rent Control and Eviction Officer fixed 25-1-1954, for the disposal of the matter. Ram Pratap Sharma then moved the District Magistrate for relief and brought all the facts to his notice. The district Magistrate called for a report from the Rent Control and Eviction Officer. The latter submitted a report in which he admitted that an allotment order had in fact been passed in favour of Ram Pratap Sharma on 7-1-1953, but a second allotment order had been passed in favour of Suraj Narain on 18-11-1953 on the basis of wrong and misleading report of the House Inspector, the latter having omitted to bring to the notice of the Rent Control and Eviction Officer that the shop had already been allotted to Ram Pratap Sharma and his application for being put in possession of it was pending. The District Magistrate then passed an order on 1-4-1954, in which he remarked that the allotment order in favour of the Appellant Suraj Narain had been made wrongfully due to a misleading report and should be set aside by the Rent Control and Eviction Officer. He also directed that Ram Pratap Sharma should be put in possession and that some suitable action should be taken against the House Inspector who had made a misleading report. The Rent Control and Eviction Officer then passed an order on 3-4-1954 cancelling the allotment in favour of the Appellant on the ground that it had been obtained through misrepresentation of facts and directing that the allotment order made in favour of Ram Pratap Sharma was to stand. He also ordered the Appellant to deliver possession over the shop to Ram Pratap Sharma by 16-4-1954, and said that in default possession would be given to Ram Pratap Sharma through police aid. On 9-4-1954 the Appellant filed the writ petition out of which this appeal has arisen and prayed that the order of the District Magistrate dated 1-4-1954 and that of the Rent Control and Eviction Officer dated 3-4-1954, be quashed by a writ of certiorari. He also claimed a writ of mandamus commanding the District Magistrate and the Rent Control Officer to restore the allotment order in his own favour and to give effect to the same The District Magistrate and the Rent Control and Eviction Officer were impleaded in the petition as Respondents Nos. 1 and 2, Sri Ram Pratap Sharma as Respondent No. 3 and the landlords of the shop as Respondents Nos. 4 and 5. On 12-4-1954 an interim order was passed by this Court directing the Respondents not to take any steps to enforce the orders dated 1-4-1954 and 3-4-1954. This order of interim stay was however vacated on 5-5-1954 and as result the Appellant was evicted from the shop and Ram Pratap Sharma was put in possession of it. Ram Pratap Sharma remained in possession for some time but then informed the Rent Control and Eviction Officer that he was vacating the shop. The shop was thereupon allotted to firm Har Swarup Chandra Deo on 8-1-1955 and in pursuance of the allotment the new allottee was put in possession of the shop. The Appellant then applied to this Court on 21-3-1955 that he permitted to implead the new allottee firm Har Swarup Chandra Deo through its partners as opposite party No. 6, in the writ petition. The permission was granted. The Appellant was subsequently also permitted to add a relief in the petition to the effect that the order of the Rent Control and Eviction Officer of Kanpur dated 8-1-1955 allotting the premises to the Respondent No. 6 be quashed.
(3.) The main grounds which were pressed on behalf of the Appellant in the writ petition were: 1. That as Ram Pratap Sharma Respondent No. 3, had not entered into possession on the basis of the allotment order passed in his favour on 7-1-1953 it was open to the Rent Control and Eviction Officer to allot the shop to the Appellant on 18-11-1953. The allotment was a valid allotment and as the Appellant had entered into possession on its basis the Rent Control and Eviction Officer had no jurisdiction left to cancel it. 2. That in cancelling the allotment in the Appellant's favour on 3-4-1955 the Rent Control and Eviction Officer had not applied his own mind or used his own discretion. He had only carried out the orders of the District Magistrate dated 1-4-1954. The order of cancellation was therefore bad in law. 3. That the shop had never become vacant in the eye of law so as to justify an allotment in respect of it in favour of the Respondent No. 6, Firm Har Swarup Chandra Deo. This latter allotment having been made during the pendency of the writ petition was to be considered subject to the result of the writ petition and was liable to be quashed if the allotment in favour of the Appellant was found to be a valid one.;