# Sethi v. State of U.P. and others 1997 (15)

- **Citation:** High Court of Judicature at Allahabad #39532
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sethi-v-state-of-u-p-and-others-1997-15-39532
- **Pages:** 4

## Text

2ALL] Sri Shamsad Ahmad V The District Judge, Dehradun & others 47
petitioners were not extended or renewed.
Thus this is a case of assigning no reason.

We need not cite several other cases which
have been placed before us by Shri W.H.
Khan, learned counsel appearing on behalf of
petitioners. Suffice to say we refer only one
judgement of Allahabad High Court in P.N.
Sethi Vs. State of U.P. and others 1997 (15)
LCD 1046; where it was observed after
considering the provisions contained in para
7.08 of the L.R. Manual that the counsel in
the districts are treated as Law Officers of the
State who are holders of an 'Office' or 'Post'.
The aforesaid provision in the Chapter VII
(L.R. Manual) reporting to appointment and
condition
of
engagement
of
District
Government counsel that the appointments are
to be made and ordinarily renewed on
objective assessment of suitability of the
person, based on the opinion of the District
Officers and the District Judges and Character
Roll is maintained for keeping a record of the
suitability of the appointee to enable an
objective assessment for the purpose of his
continuance as a law officer in the district.

If it is assumed that such engagement are
only professional in nature and that the
appointment or renewed which is made by the
State Government pertains to subjective
satisfaction of the State Government, but it
should be based on certain materials. There
was no objective material before the State
Government to arrive at a conclusion that
their term may not be renewed. The only
relevant material before the State Government
was the report of the District Judge and the
District Magistrate, which was brushed aside,
without indicating any reason. There exist
nothing on the record to indicate that the
petitioners have suffered from any disability,
meaning thereby; that there was any defect in
their Character Roll or they were not suitable
for the post in question. The District Judge
who is best authority to assess and evaluate
the working of the petitioners submitted his
report in favour of the petitioners. The District
Magistrate also did not find that the
petitioners were not suitable for the posts,
which they held. Hence there was no material
before the State Government which can be
said to be adverse against the petitioners. The
order passed by the State Government does
not indicate any reason as to why their term
was not renewed, when in accordance with
the instructions contained in para 7.08 their
term
could
be
renewed
by the State
Government.

In view of what we have indicated herein
above both the writ petitions succeeds. A writ
order in the nature of certiorari quashing the
order of Government dated 30.4.99 refusing
to renew the term of the petitioners is issued
and the State Government is further directed
to consider the cases of the petitioners in the
light of the recommendation made by the
District Judge and the District Magistrate as
well as the observations of this Court. Till the
State Government takes its final decision the
petitioners will continue to discharge their
duties which were assigned to them.
Petition Allowed.
----------

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By the Court

1. This writ petition is directed against the
order dated 14.10.1980 passed by the Rent
Control and Eviction Officer allotting the
accommodation to respondent no3 and the
order of respondent no1 dismissing the
revision against the said order no19.12.1980.

2. Briefly the facts are that one Harbans
Lal was tenant of Premises no.64 Munnugang,
Dehradun , of which the petitioner is landlord.
He constructed is oven house at Keshav Nager
, Dehradun and intimated to the landlord on
16.6.1980 that would vacate the house in the
lost week of the month and will hand over its
possession. On the basis of this information,
the petitioner intimated to the District
Magistrate under Section 15(1) of U.P. Urban
Building (Regulation of Letting, Rent and
Eviction) Act, 1972 (in short the Act) that
Harbans Lal, the tenant, is to vacate the
accommodation. In the prescribed form in
column the actual or expected date of vacancy
he mentioned the date of vacancy as
24.6.1980. The Rent Control and Eviction
Officer, on receiving this intimation, asked
the Rent Control Inspector to submit a report.
The Inspector made a local inspection. The
tenant informed him that he has constructed
his house at Keshav Nagar and is likely to
vacate within two or three days. The Inspector
submitted a report on 10th July 1980 to the
Rent Control and Eviction Officer. The Rent
Control and Eviction Officer declared the
accommodation in question as vacant.

3. The petitioner on 16th July 1980
nominated Sri Datar Singh, respondent no .4,
for the purpose of allotment under section
17(1) of the Act. Sri Datar Singh applied for
allotment of the premises. Respondent no3
also made an application for allotment of the
premises. The Rent Control and Eviction
Officer vide order dated 14.10.1980 held that
section 17(1) of the Act was not applicable
inasmuch as the vacancy was not notified
under Section 17(1) but under Section 12(3)of
the Act and therefore the premises in question
could not be allotted to the nominee of the
petitioner. He allotted the accommodation in
question in favour of respondent.no3 Against
this order the petitioner and Datar Singh filed
separate
revision.
Respondent
no.1
has
dismissed the revision on 19.12.1980

4. I have heard Sri Rajesh Tandon, learned
counsel for the petitioner, and Sri H.L.
Nigam, learned counsel for respondent no3.
2ALL] Sri Shamsad Ahmad V The District Judge, Dehradun & others 49
5. The core question is whether on the
facts and circumstances of the case the Rant
Control and Eviction officer was justified in
ignoring the nomination made by the landlord
on the ground that if the vacancy is notified in
a case of deemed vacancy which is covered
by Section 12(3) of the Act, the nomination
shall be treated as invalid under Section 17(1)
of the Act. In this context the provision of
Section 15 as well under Section 12 of the
Act. The vacancy may arise in three ways :
i. When the tenant or the landlord
ceases to occupy the building i.e. physical
vacancy;
ii. When the tenant or landlord is likely
to vacate the building; and
iii. When the tenant continues to
occupy it but it shall be deemed as vacant
under Section 12of the Act.

6. Under Section 12 (1) the landlord or
tenant of a building shall deemed to have
ceused to occupy the building or a part
thereof, if, (a) he has substantially removed
his effect therefrom; (b) he has allowed it to
be occupied by any person who is not a
members of his family (c)in a case of
residence building he as well as the members
of his family have taken up residents not
being temporary residence elsewhere.

7. Sub- section 12 provides that in the case
of non residential building ,where a tenant
carrying on business in the building admits a
person who is not a member of his family as a
partner or a new partner, as the case may be,
the tenant shall be deemed to have ceased to
occupy the building. Sub section (3) further
provides that in the case of a residential
building, if the tenant or any member of his
family builds or otherwise acquires in a
vacant state or gets vacated a residential
building in the same city, municipality,
notified area or town which the building under
tenancy is situate, he shall be deemed to have
ceased to occupy the building under his
tenancy .

8. Section 15 (1) of the Act provides that
every landlord, shall on a building falling
vacant by his ceasing to occupy it or by the
tenant vacating it o by release from requisition
or any other manner whatsoever gives notice
of the vacancy in writing to the District
manager not later then seven day after the
occurrence of such vacancy, and such notice
many at the option of the landlord be given
before the occurrence of the vacancy. The
duty is also cast upon the tenant under Subsection (2) to give notice in writing to the
District Magistrate and also to the landlord
not lees then fifteen days before the vacancy
.Section 2 of the Act contemplates deemed
vacancy where the tenant or landlord has not
left possession. In one case the cessation of
the vacancy is a fact and in other case it is a
deemed cessation of vacancy. The effect in
both case the same i. e. vacancy of the
building by the landlord or tenant. Section 17
of the Act takes into account the vacancy and
the expected vacancy both. Section 17(1)
reads as under:-

"17(1). Where the District Magistrate
receives an intimation, under Sub-section (1)
of section 15, of the vacancy or expected
vacancy of building any allotment order in
respect of the building shall be made
communicated to the landlord within twenty -
one days from the date of receipt of such
intimation, and where no such order is so
made or communicated within the said period,
the landlord many intimate to the District
Magistrate the name of a person of his choice,
end thereupon the District Magistrate shall
allot the building in favour of the person
nominated unless for special and adequate
reason to be recorded hie allots it to any other
person within ten days from the receipt of
intimation of such nomination :
Provided that were the landlord has made
an application under clause (b) of Sub-section
(1) of section 16, for the release of the whole
or any part of the building or land appurtenant
thereto in his favour, the said period of
twenty- one days shall be computed from the
50 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
date of decision on that application or where
an application for review or on appeal is filed
against such decision, from the date decision
on such application or appeal."

9. Section 16 of the Act which
provides that the District Magistrate by the
order require the landlord to let any building
which is or has fallen vacant or is about to fall
vacant. He will have jurisdiction to pass
allotment order in case there is a deemed
vacancy under section 12 of the Act. The
landlord
can
intimate
to
the
District
Magistrate/Rate Control and Eviction Officer
about the vacancy whether it is actual
vacancy,
deemed
vacancy
or
expected
vacancy. In, Irshad Ahmad Vs. VII Additional
District Judge. Aligarh and others, 1994(2)
ARC37, it was held that the intimation can be
given by the landlord in regard to deemed
vacancy as contemplated under section 12 of
the Act.

10. Secondly in the present case the tenant
himself has intimated the date of expected
vacancy to the landlord and the landlord in
pursuance of the said intimation had given
notice
to
the
District Magistrate. The
intimation given by the landlord is fully
covered under the section 15 (1) of the Act.

11. In view of the above the writ petition is
allowed. The order passed by the Rant
Control
and
Eviction
Officer
dated
14.101.980
and
the
order
passed
by
respondent no.1 dated 19.12.1980 are hereby
quashed. The Rate Control and Eviction
Officer shall now decide the allotment
application in accordance with law taking into
account the nomination made by the landlord.
Considering the facts and circumstances of
the case the parties shall bear their own costs.

Petition Allowed.
----------

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