JUDGMENT J.C. Gupta, J.
1. Heard petitioner's counsel Sri K. M. Garg and learned counsel for the caveator Sri Anil Sharma. Supplementary-affidavit filed on behalf of the petitioner is taken on record.
2. By means of the present writ petition, the petitioner challenges the orders dated 17.7.1998, 31.8.1998 and 3-9.1998 passed by respondent No. 2, the Rent Control and Eviction Officer. Bijnor. and also the order dated 11.9.1998 passed by, respondent No. 1 in the revision filed by the petitioner before the said authority. it appears that on the applications moved by petitioner for allotment and for release by respondent Nos. 3 to 5, the premises in question was got inspected by the Rent Control Inspector who reported that the petitioner was in unauthorised occupation of the premises in question as she was occupying the same without an order of allotment, for the last 5-6 years. it further appears that the case of the petitioner before the R.C. and E.O. was that she has been in occupation of the accommodation in question since the time of the predecessor-in-title of respondent Nos. 3 to 5 for the last 15-16 years. She further pressed her prayer for making allotment of the accommodation in question in her favour. By the order dated 17.7.1998, the R.C. and E.O. declared vacancy and thereafter by a subsequent order dated 31.8.1998 he has made an order of release in favour of the landlords respondent Nos. 3 to 5 and thereafter notice in Form C was issued on 3.9.1998. The petitioner then filed revision before the District Judge. Bijnor, who has been pleased to dismiss the same by the order dated 11.9.1998.
Kumar v. IInd Addl. District Judge, Banda and others, 1993 (2) ALJ 437, and when the petitioner was in unauthorised occupation, the District Magistrate, under the provisions of the Act, had power to proceed to consider the applications for release or allotment, as the case may be, by treating the building in question vacant.
4. Next, it has to be considered as to whether the R.C. and E.O. committed any error of jurisdiction in allowing the release application of the landlord and rejecting the application of the petitioner for allotment. it has been held by me in Smt. Kartla Devi v. District Judge, Muzzafamagar, 1998 (2) ARC 64, that an unauthorised occupant has no right to contest the claim of the landlord for the release of the accommodation wherein reliance was placed on the decision of the Full Bench of this Court in the case of Talib Husain v. 1st Addl. District Judge, 1986 (1) ARC 1 ; Brij Bhushan Lal Sriuastava v. IIIrd Addl. District Judge, Varanasi and others. 1995 (1) ARC 158 and the Apex Court decision in the case of Narayani Devi v. Mohendra Kumar Triparhi and others, 1998(1) ARC 153. The Supreme Court in the case of Vi/ay Kumar Sonkar v. Incharge District Judge and others, 1995 (2) ARC 1, also approved the Full Bench decision of this Court in the case of Talfb Husain (supra). in view of the settled position of law, the petitioner whose status was that of unauthorised occupant even as per her own case, could not be permitted to object to the claim of the landlord for the release of the accommodation in question. it was a matter between the R.C. and E.O. and the landlord and no third person had a right to participate in such proceedings.
5. it is also well-settled law which admits of no doubt that once an application for release is made by the landlord, application for allotment can be considered only after when the claim of the landlord for the release is refused. in this connection a reference may be made to the aforesaid decision of the Full Bench in the case of Talib Husain (supra) as well as to my own decision in the case of Ram Kumar Maheshwart v. A. D. M. and others. 1998 (2) ARC 62. Similar view was expressed in the decision of Patverdhan Singh v. District Judge, Kanpur Nagar and others. 1998 (2) AWC 1181. The Apex Court in the case of Swaroop Narain Srivastaua v. IVth Addl. District Judge and others. JT 1994 (5) SC 221, held that no where it is provided that an application for allotment of a vacant building should be considered in preference to the application made for release of the vacant building by the landlord. On the other hand, Rule 13 which provides the procedure for consideration of the application for release of a vacant building by a landlord by its sub-rule (4) requires that the landlord's application for release under the Rule shall, as far as possible, be decided within one month frorn the date of its presentation and no allotment in respect of a building covered by an application in that rule shall be made unless such application has been rejected. From the above, it would thus follow that as soon as the release application of landlord is allowed, all the applications for allotment become infructuous and the mere fact that the R.C. and E.G. while allowing the release application of the landlord rejected the application for the allotment also by the same order would not make the order of release invalid. The contention of the learned counsel for the petitioner in this regard is wholly misconceived and untenable. it may not be out of place to mention here that the petitioner herself had applied for the order of allotment in her favour and in the facts and circumstances of the case, when the petitioner does not possess any enforceable right in herself, she being an unauthorised occupant, she cannot be permitted to blow hot and cold at the same time by saying that no vacancy had occurred and in any view of the matter .t is also well-settled law that this Court in its writ jurisdiction grants equitable relief only to these who are shown to possess a right enforceable in law and to whom injustice has been done on account of infringement of that right.
6. For the reasons stated above, this writ petition has no force and is dismissed in limine.
7. At this juncture, learned counsel for the petitioner prayed that some reasonable time may be allowed to the petitioner to make her own arrangement and for vacating the accommodation in question. Learned counsel for the respondents opposes this prayer on the ground that the petitioner possesses her own accommodation in the same city as was reported by the Rent Control Inspector in his report.
8. On a consideration of facts and circumstances of the case, the petitioner is allowed lime to vacate the premises in question on or before 31st December, 1998 by handing over the vacant possession of the accommodation in question to the landlords without inducting any third. person therein, subject to her filing an undertaking on affidavit before the Rent Control and Eviction Officer concerned within three weeks from today to the effect that she shall comply with the order and hand over the vacant possession to the landlords on or before the said date. in the event of no such undertaking being filed within the aforesaid period of three weeks, it shall be open for the party concerned to get the order of release enforced in accordance with the provisions of the Act. if the required undertaking is filed and respected, the enforcement of the release order shall remain suspended upto 31.12.1998.