MOHD. SHUAUL ISLAM Vs. THE RENT CONTROL AND EVICTION OFFICER AND OTHERS

JUDGEMENT

(1.) IN this petition Under Article 226 of the Constitution an order of allotment dated 20 -1 -1967, is sought to be quashed.

(2.) THE allotment order related to a portion of 'Nasim Manzil' situate at 29/32, Rana Pratap Marg, Lucknow. It belonged to Mohd. Habib and Mohd. Mujeeb. The owners entered into an agreement for sale of the building on 21 -4 -1963, with the Petitioner's father for Rule 58,000/ - . A part payment of Rs. 39,000/ - was made and it is stated that the possession of the building was delivered to the Petitioner's father by the vendor on 19 -10 -1963. At that time Mohd. Ishaq, a relation of the vendor, was residing in the house. According to the Petitioner, Mohd. Ishaq became annoyed at the transaction of sale and he on 21 -10 -1963, informed the R.C. and E.O., Lucknow, that he had been living in 'Nasim Manzil' and had vacated it and that the building was open for allotment. On the same date Sri S.S. Pandey Respondent No. 3 made an application for allotment of this building. The R.C. and E.O. the same day passed an order of allotment in favour or Sri Satya Sindhu Pandey. The same day Sri Pandey obtained delivery of possession of the building from Mohd. Ishaq. The possession of a small portion of the building in which Mohd. Mujeeb, one of the vendors, was living, however, could not be delivered to the allottee. Mohd. Habib one of the owners, and Mohd. Ikram Uddin, the Petitioner's father (who was the intending purchaser) filed a Writ Petition (No. 685 of 1963) before the Lucknow Bench of this Court praying for the quashing of the order of allotment. The writ petition came up for hearing and was disposed of on 2 -11 -1965. The learned Judge held that Mohd. Ishaq was not a tenant. He was in occupation with the permission of the owners. His possession being on behalf of the owners was that of a licensee. His departure from the house did not amount to a vacancy of the accommodation. So, no allotment order could be passed in respect of the building. It was also held that the allottee could not himself enter into possession without the consent of the landlord. The possession of the allottee was hence wrongful. The allotment order was quashed and it was indicated that the Respondents will make no difficulty about vacating the premises.

(3.) THEREAFTER on 24 -9 -1966, the two owners of Nasim Manzil executed a deed of sale thereof in favour of the Petitioner. Mohd. Habib, the erstwhile owner, made several applications to the R.C. and E.O. demanding restoration of possession of the building. It appears that on 28 -1 -1966, Sri Pandey made a fresh application for allotment of a portion of Nasim Manzil. He stated that originally the entire building had been allotted to him but the order of allotment had been quashed in a writ petition. In the special appeal the Bench held that as only a part of the accommodation had been vacated by Mohd. Ishaq only that portion could be the subject of an order of allotment. He mentioned that Mohd. Habib had been in possession of a motor garage, one room in the main building, one servant's Kothri and the underground basement. The rest of the bungalow had fallen vacant. He prayed that the rest of it be allotted to him. The R.C. and E.O. heard the parties and by the impugned order dated 20 -1 - -1957, allotted the portion which was in the occupation of Mohd. Ishaq to the third Respondent. He directed that the possession of the remaining portion of the building shall be restored to the landlord owners.