1. This application has been presented on behalf of Sri Ram Narain Tewari's trust by his managing trustee, Har Narain Swami. The dispute relates to house No. 60/8 Purani Dal Mandi, Kanpur. Of this house the trust is admittedly ther owner. According to the case put forward by the trust in the affidavit, which has been filed on behalf of it by Lokendra Bahadur, the pairokar of the trust, the trust was occupying a substantial portion of this house. The other portion was in the occupation of one Shyam Lal Yaid. He died and his nephew had to leave the house.
2. It is necessary to go into the circumstanceswhich compelled him to leave the house. On thehouse being vacated the trust started, accordingto the affidavit filed by it, immediately takingoccupation : and wrote to the Rent Control andEviction Officer on 10-9-1951, that it had startedoccupying the house. An application was also sentby the trust to the Rent Control and EvictionOfficer for the allotment of that portion to it.The Rent Control and Eviction Officer did not,however, allot that portion to the trust. Anallotment order was, however, made by him infavour of opposite party No. 1 on the groundthat the need of the applicant was most genuine.In passing this order the Rent Control and Eviction Officer overlooked the provisions of Rules 6 and 7framed under Section 17, Rent Control and Eviction.Act. Rule 6 requires the District Magistrate topermit the landlord to occupy an accommodation which has fallen vacant or is likely to fallvacant if it is bona fide needed by him (i. e. thelandlord). There is nothing to show in the orderwhich was passed by the Rent Control and Eviction Officer, that he exercised his mind on thepoint whether the need of the landlord was of abona fide character or not. The sole considerationwith him appears to have been the fact that theneed of the applicant was most genuine. To thequestion whether the need of the landlord, whichwas a trust in this case, was of a bona fide charac-tor, he did not apply his mind at all.
3. The second error into which the Rent Con-trol and Eviction Officer has fallen is this. Un-doubtedly a portion of this house was in the occupation of the landlord, for it was in the occupation of the agents of the trust. Their occupation was on behalf of the trust landlord. Before passing any order in regard to the allot-ment of that portion, it was obligatory on the Rent Control and Eviction Officer under Rule 7 framed under Section 17 of the Act to consult the owner and to make, as far as possible, the allotment in accordance with the wishes of the owner. The purpose behind this rule appears to be to provide an opportunity to the landlord to have his sayin regard to any proposed allotment of his house. Possibly, this rule has been enacted as it is intended that a person, who is unacceptable to the landlord, should not be forced upon him if he, i.e., the landlord, is occupying a portion of the house himself. In any view of the case it was incumbent on the Kent Control and Eviction Officer to consult the landlord before proceeding to make arrangements in regard to the vacant accommodation and this he has failed to do in this case.
4. Looking, therefore, at the case from the point of view of both Rules 6 and 7, we have been driven to the conclusion that the order of the District Magistrate cannot be allowed to stand. There is, as we have pointed out, no real controversy as regards the facts. We, therefore, sot aside the order of the Kent Control and Eviction Officer dated 15-10-1951, and direct him to re-allot the disputed portion of the house after consulting the landlord. He must in doing so keep in view the provisions of Rules 6 and 7 of Section 17, Rent Control and Eviction Act. We allow this application with costs.
5. We have looked at the counter-affidavit filed on behalf of the opposite parties and are satisfied that a denial of the facts stated in para. 2 of the affidavit cannot be read into it.