G.D.Sahgal, J. - (1.) There is a house No. 227 in Mohalla Mahajani Tola in the city of Faizabad of which the appellants are the owners. They were in the occupation of a portion of that house, whereas a portion of it had been let out to one Roshan Lal Gulati. The appellants had succeeded to the ownership of the building from one Ram Adhin Singh and, according to the allegations in the petition filed by them before this Court, it was with the consent of Ram Adhin Singh that Gulati was inducted into the other portion of the building as a tenant. An application was moved by respondent No. 5 on the 23rd of April, 1962 before the District Magistrate for the allotment of the portion in the occupation of the said Gulati on the allegation that it had fallen vacant. An order was passed by the District Magistrate thereon directing that it be allotted to respondent No. 5. When the appellants came to know about it, they moved an application on the 26th of April, 1962 for the release of that portion on the ground that they required it for their own use. The application was rejected by the Rent Control and Eviction Officer, respondent No. 2, on the 8th of May, 1962 and on the 9th of May, 1962 he passed an order under Section 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act (Act III of 1947) (hereinafter to be referred to as the Act) directing the appellants to let out the disputed portion of the house to respondent No. 5. An objection was then filed against that allotment order on the ground that in accordance with Rule 7 of the Control of Rent and Eviction Rules, 1949 framed under Section 17 of the Act (hereinafter to be referred to as the Rules) the disputed portion could not be allotted without the consultation of the appellants by the District Magistrate or the Rent Control and Eviction Officer, as the case may be, as they were the owners and were in the occupation of the other portion of the same accommodation. This application was rejected by the City magistrate, Faizabad on the 7th of December 1964. An application was then preferred by the appellants under Section 7-F of the Act to the State Government which was also rejected by an order dated the 22nd of January, 1966. The appellants then filed a petition under Article 226 of the Constitution praying that the order of allotment dated the 9th of May, 1962, the order dated the 7th of December, 1964 and also that dated the 22nd of January, 1966 be quashed. The petition was opposed by respondent No. 5 who was opposite party No. 5 in the petition also. The learned single Judge (Hon'ble Lakshmi Prasad, J.), before whom the matter came up for hearing, dismissed the petition holding that in view of the finding of the rent control authorities and also in view of the affidavit filed in the case it was impossible to hold that the portion allotted to respondent No. 5 was a portion of the accommodation in the occupation of the appellants. It is against that order that an appeal was filed and when it came up before a Bench of which one of us was a member, it was referred to a Full Bench on account of a conflict of authority of this Court in the two Division Bench cases of Ram Gopal v. State of Uttar Pradesh, AIR 1953 Allahabad 438 : 1953 ALJ 54 and Dr. A.C. Dass v. T.R.O. and D.S.O. Lucknow, 1962 ALJ 553 . The former case was decided by Malik, C.J. and V. Bhargava, J. (as he then was), while the latter was decided by Desai, C.J. and S.D. Singh, J.
(2.) The case involves the interpretation of Rule 7 of the Rules which reads as follows:- "7. Where a portion of accommodation falls vacant and the owner is in occupation of another portion thereof, the District Magistrate shall, before making the allotment order, consult the owner and shall so far as possible make the allotment in accordance with the wishes of the owner." A perusal of the rule shows that it requires that there should be an accommodation, that a portion of that accommodation should fall vacant and that the owner should be in occupation of another portion of that accommodation. It is only when these conditions are satisfied that it is obligatory on the District Magistrate to consult the owner and after so consulting him to allot, so far as possible, the portion that has fallen vacant, in accordance with the wishes of the owner.
(3.) In Ram Gopal's case the Bench which decided the case appears to have held that when an owner lives in a portion of a building and another portion of that building in which he does not reside falls vacant, then he has to be consulted in accordance with this rule. According to this interpretation, therefore, the whole building would be an "accommodation".;