C.S.P. Singh, J.@mdashThis is an appeal by the landlord-petitioners. An application was moved by him u/s 16 of the Rent Act for release of the
accommodation. It was alleged that the premises had been allotted to one Sri R. P. Dangwal, A. D. M. (J) with the rider that the allotment order
shall stand terminated on the expiry of 15 days from the date of making over charge of the post of A. D. M. (J), Bareilly. It was asserted that Sri
R. P. Dangwal has already been transferred from Bareilly and that as a result, the house had fallen vacant and the premises should be released in
favour of the landlord-appellants. The Rent Control and Eviction Officer held that a vacancy had occurred by the operation of law, and as such
released the premises in favour of the landlord-appellants.
On appeal, the District Judge found that the need of the landlord-appellants was genuine but held that inasmuch as the accommodation was neither
factually nor notionally vacant, the application u/s 16 of the Act was misconceived. He was of the view that the proper remedy was by way of an
application u/s 21 of the Act. In the operative portion of the order, he partly allowed the release application to the extent that he directed that the
release of the accommodation would take place on the premises falling vacant on being vacated by Sri Dangwal.
2. The landlord-appellants thereupon filed writ petition No. 6041 of 1974 out of which the present appeal arises. The learned single Judge held
that inasmuch as Sri Dangwal continued to be in occupation of the premises, no factual or notional vacancy existed, and as such the premises in
dispute could not be released u/s 16 of the Act. The contention on behalf of the landlord-appellants that the application made by him should be
treated as one u/s 21, was not countenanced, on the consideration that neither the District Magistrate, nor the District Judge had compared the
needs of the landlord and the tenant as envisaged u/s 21 of the Act.
3. Counsel for the appellants contended that as u/s 43 (2) (k) of the Rent Act, the allotment made under the old Act became final, a vacancy
occurred on the expiration of that order, and as such an application u/s 16 was in order, and, further that the tenant was estopped from taking the
stand that the premises were not vacant, on account of the allotment order passed earlier. It was also contended that as only family members of the
tenant were residing in the premises, the premises should be deemed to be vacant.
4. We are unable to accept these contentions. Section 7 (2) of the old Rent Act did not contemplate any conditional allotment order. That section
postulated an order by the District Magistrate to the landlord to let, or not to let any accommodation which has fallen vacant or was likely to fall
vacant. The direction which the District Magistrate issued under that section had in the circumstances to be confined only to the letting out of the
accommodation. No further direction u/s 7 (2) could be validly issued. Thus the rider in the allotment order that the allotment will stand terminated
on the expiry of fifteen days from the date of making over charge of the post of A. D. M. (J), was a mandate which did not fall within the four
corners of Section 7 (2) and was not honest in the eye of law.
Thus, on the passing of the new Act, inasmuch as the possession of the tenant could not be said to be unlawful, no vacancy either notional or
factual occurred so as to enable the landlord to take proceedings u/s 16 of the Act. No question of estopped also arises in this view of the matter,
as that latter part of the allotment order was a nullity. The fact that the tenant acting on that allotment order took possession, would also not create
any estopped, as the order cannot be said to contain any representation on the part of the tenant which induced the landlord to alter his position to
his detriment.
5. The third contention also does not have any substance. It has been found for a fact the wife of the tenant and his other family members are
residing in the premises. This being so, the mere fact that the tenant has been transferred to another city, would not create a vacancy so long as it
remained occupied by his family members. The provisions of Section 12 of the Act which create a fictional vacancy cannot possibly be applied to
a case where the premises are in factual occupation of the tenant or his family members.
6. As a last resort counsel for the appellants urged as he did before the learned single Judge, that as his application u/s 16 of the Act had all the
requisites of an application u/s 21 of the Act, the appellate authority should have granted a relief to the appellants under that provision. We cannot
bring ourselves to agree with this contention, for the nature and the scope of proceedings under Sections 16 and 21 of the Act are riot similar, and
neither have the parties fought out the case on this basis. Further, the authorities deciding applications u/s 16 and 21 are different. u/s 16 of the Act,
it is the District Magistrate who disposes of applications; while u/s 21 it is the Prescribed Authority, and they need not be the same officers in all
cases.
7. For all these reasons, we uphold, the judgment of the learned single Judge and dismiss the appeal. There shall, however, be no order as to
costs.