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Judgment
Shishir Kumar, J.—This writ petition has been filed for quashing the order dated 6.8.2004, passed by Respondent No. 1 (Annexure-1 to writ petition) and further prayer that proceeding in pursuance thereof in Case No. 185 of 1997 be remained stayed.
The facts arising out of writ petition are that Petitioner was inducted as tenant in the house in question by one Rajesh Kumar Agarwal, who is the owner and landlord, on monthly rent of Rs. 105. Respondent No. 2 set up one Munna Lal and got allotment application filed in respect of house in question. A report was called for from Rent Control Inspector and after inspection of house in question, submitted a report that Petitioner is tenant in the house in question for last three years. Notice was issued to parties. Petitioner filed an objection against allotment application dated 28.8.1978. Sri Rajesh Kumar Agarwal owner of house and landlord, who is son of Respondent No. 2 filed his own affidavit stating that Petitioner has been inducted by him in the month of January, 1976 and he is paying rent including water tax and house tax. Respondent No. 2 did not file any counter-affidavit in opposition of affidavit of Rajesh Kumar Agarwal. A registered sale deed was executed by Rajesh Kumar Agarwal in favour of Petitioner on 14.9.1979. Respondent No. 2 filed an application for declaration of vacancy of the house in question. An objection was filed by Petitioner that he has purchased this house by a registered sale deed, therefore, question of vacancy does not arise. This fact was admitted by Rajesh Kumar Agarwal, Respondent No. 2. After going through the material on record passed an order to the effect that there is no question of vacancy of house in question and Petitioner is residing in the house since before 5.7.1976 with the consent of landlord Rajesh Kumar Agarwal, therefore, he will be treated to be lawful tenant. Respondent No. 3 did not challenge the said order dated 25.10.1982 and that has become final against him.
On 23.11.1982, Respondent No. 2 filed a review application u/s 16(5) of U. P. Act No. 13 of 1972 against the order dated 25.10.1982. Petitioner filed an objection against the review application stating therein that review application is not maintainable u/s 16(5) of the Act. Respondent No. 2 filed his objection against the objection dated 22.3.1983 and prayed for declaring the house in question as vacant and same may be notified for allotment. Respondent No. 2 only to linger the case, again filed an affidavit on 7.4.1989 which was also replied by Petitioner but proceeding was going on and subsequently after hearing both the parties, on 6.8.2004, Respondent No. 1 has allowed the review application after about 22 years and set aside the order dated 25.10.1982. It has also been brought to the notice that Respondent No. 2 has also filed a suit for cancellation of the sale deed dated 14.9.1979 executed by Rajesh Kumar Agarwal. The said suit was dismissed in default and an application under Order IX, Rule 9 of CPC was also filed. The said application was dismissed and First Appeal From Order No. 1065 of 1990 was filed before this Court but subsequently same has been transferred to District Judge, Varanasi due to change in pecuniary jurisdiction and first appeal from order was dismissed as abated by Vth Addl. District Judge on 15.1.2001. A writ petition has been filed and writ petition was allowed and delay was condoned in filing of substitution application and appellate court was directed to decide the appeal on merits.
Learned Counsel for Petitioner submits that points for considering by this Court is whether application filed by Respondent No. 2 for review of the order dated 25.10.1982 was maintainable or not and the order impugned dated 6.8.2004, passed by Respondent No. 1 was beyond the scope of power of review as contemplated u/s 16(5) of the Act. It has further been submitted that in view of the fact that Petitioner has already purchased the house in question and litigation regarding ownership of house is also going on between the parties in Civil Suit No. 375 of 1981 then in that view of matter, whether proceeding u/s 16 of the Act can continue. Further question for consideration before this Court whether Rent Control and Eviction Officer is competent to decide the dispute regarding title and relationship of landlord and tenant.
Petitioner submits that review application filed by Respondent No. 2 was not maintainable in view of Section 16(5) against the order of allotment or release passed u/s 16(a)(b). The order dated 25.10.1982, passed by predecessor of Respondent No. 1 is not a allotment or release of the house in question. This is an order exercising power u/s 14 of the Act as it was found that Petitioner was tenant prior to 5.7.1976 with the consent of landlord Rajesh Kumar Agarwal. Therefore, the order passed by Respondent No. 1 is an order having no jurisdiction. A finding to this effect that review application is maintainable u/s 16(5) against the order dated 25.10.1982 because the order has been passed u/s 14 of the Act, the order dated 6.8.2004 on the face of record is illegal and without jurisdiction because once the finding was recorded by Respondent No. 1 that order dated 24.10.1982 is u/s 14 of the Act, review application is not maintainable.
The power u/s 16, Sub-clause (5) of the Act can be exercised by the authority to review its earlier order only if it is found that it has not been passed in accordance with Clause (a) or Clause (b) as the case may be of Sub-section (1) of Section 16 of the Act when a particular party has not been given a notice of the proceedings or where material fact has been suppressed or fraud has been exercised then in that case review application can be entertained. Respondent No. 1 has taken into consideration the affidavit of Ballabh Das filed on July 14th, 1986 and the affidavit of Respondent No. 2 filed after 25th October, 1982 which is beyond the scope of power of review. No objection was ever raised against the report of Rent Control Inspector. A finding to this effect has been recorded by Respondent No. 1 that power of Rent Control and Eviction Officer was in violation of Rule 8 is beyond the scope of Section 16(5) of the Act No. 13 of 1972. The said order should have been challenged before the higher Court but same Court cannot review the order. The District Magistrate can proceed to review its earlier order only if he finds that the order is not made in accordance with Clause (a) or Clause (b) of Sub-section (1) of Section 16 of the Act. As both the parties were heard which is clear from the material on record, therefore, it was beyond the scope to entertain and allow the said application. Learned Counsel for Petitioner has relied upon the following judgments, which are being quoted below:
Case Law Smt. Noor Jahan v.I Ind Addl. District Judge, Kanpur and Ors., 1982 (1) ARC 264.
Sub-section (5) of Section 16 of the Act confers a restricted power on the District Magistrate to review an order of release or allotment passed by him. The District Magistrate can proceed to review his earlier order only if he finds that the order was not made in accordance with Clause (a) or Clause (b), as the case may be of Sub-section (1) of Section 16 of the Act. This is the essential requirement to confer jurisdiction on the District Magistrate. If it is not made out, that the earlier order was not made in accordance with a Clause (a) or Clause (b) the District Magistrate will have no jurisdiction to review his earlier order. Sub-section (5) does not confer an unlimited and general power of review. Where a party against whom an order of release or allotment has been passed, was not given notice of the proceedings or where material facts were suppressed or fraud was exercised by the successful party, it may be said that the order passed by the Magistrate was not made in accordance with Clauses (a) and (b) of Section 16(1) of the Act, entitling a review of the order.
In the instant case, the Petitioner did not make out any ground which would show that the order passed on 18.11.1978 was not made in accordance with Clause (b) of Section 16(1) of the Act. It is the common case of the parties that the Petitioner had contested the proceedings and had adduced evidence in support of her case and in rebuttal of the case of the landlords the order was passed by the Rent Control and Eviction Officer on a consideration of this material. While moving for review, the Petitioner did not allege any fraud or misrepresentation on the part of the landlords. She merely referred to two documents, but did not say why those two documents could not be filed earlier. In these circumstances, the essential ground which would have conferred jurisdiction on the Rent Control and Eviction Officer to review his earlier order, was not made out. The Rent Control and Eviction Officer, therefore, had no jurisdiction to review the order dated 18.1.1978, the view taken by the learned Additional District Judge was correct.
Case Law Smt. Munni Devi v. Rent Control and Eviction Officer, Moradabad and Ors., 1980 ARC 580 (DB),
The learned Counsel for the Respondents raised a preliminary objection that in view of decision of the Supreme Court in M/s. T. Singh and Company v. Districts Magistrate, Lucknow, the writ petition was not maintainable. In that case it was held that an order notifying vacancy was a step-in-aid of the order of allotment or release and it was only when such an order of allotment or release was passed that the landlord or the tenant as the case may be, could have a grievance. Those orders were appealable. Consequently the writ petition against the order directing the vacancy to be notified was premature in the sense that it did not affect the interest of the tenant. To the same effect are the observations of this Court in Dr. Gopi Mohan Saxena v. State. These decisions in our opinion are distinguishable. The Petitioner''s grievance is that she was in occupation as a tenant and she has been adversely affected by the impugned order which declares the accommodation in her possession to be vacant and open for allotment. She has come to this Court against the order reviewing the earlier order by which it was held that there was no vacancy. In the present case, the order with respect to the proceedings for declaring the accommodation vacant is not being challenged. What is challenged is the subsequent order reviewing the earlier decision. The Petitioner''s grievance is that there was no valid ground on which the Rent Control Officer could review his predecessor''s earlier order on an application filed hardly two weeks after the previous decision was given.
A perusal of the impugned order of review shows that the succeeding officers had re-assessed the evidence himself and had come to the contrary conclusion. This was not open in a proceedings for review. He has not indicated that any fact was suppressed or any fraud was played. In the absence of these features the succeeding officer was not entitled to re-assess the evidence and come to a contrary conclusion. The impugned order dated 4th July, 1978 in our opinion is without jurisdiction and cannot be sustained.
Case Law Shri Nasir Abbas v. District Judge, Rampur and Ors., 1977 ARC 29.
Having heard learned Counsel for the parties, we are of the opinion that this appeal must fail. It is important to notice that in his subsequent order cancelling the allotment order, the District Supply Officer has not found that any fraud was played or misrepresentation made by Mashkoor Ahmad in respect of his assertion that he was a partner of the deceased Saddan Mian and had been working with him. On the material that was available before him at the time of passing the first order of allotment, the District Supply Officer was satisfied with the case set up by Mashkoor Ahmad and recorded a finding of fact that he was a partner of Saddan Mian and had been working with him for four years. This finding was the sole basis for the allotment in favour of Mashkoor Ahmad and, in the subsequent order, there is not a word to show that this finding was obtained by Mashkoor Ahmad by fraud or misrepresentation. That being so, there was no occasion for the District Supply Officer to cancel the earlier allotment order in favour of Mashkoor Ahmad in respect of the premises on the ground floor. It is further to be noticed that this finding was recorded in the presence of the Appellant and after he had full opportunity to contest the assertions made by Mashkoor Ahmad. The Appellant never filed any appeal against the allotment order and submitted to it. Now he wishes to take advantage of the review application filed by the landlord. So far as the review application filed by the landlord is concerned, we find that he made out no ground for review of the allotment order in respect of the ground floor portion. It is true that the landlord was not heard before the allotment order was made but he has neither asserted nor shown that he was, in any way, prejudiced by the allotment order. He did not, at any time, express any desire to have the premises released in his favour. He only expressed a desire that the premises be allotted in favour of the Appellant. There is no provision in the Act or in the rules which provides for the taking into consideration of the wishes of the landlord at this stage and in these circumstances in making the order of allotment. Therefore, in our opinion, no case had been made out by the landlord for reviewing the order of allotment made in respect of the premises on ground floor.
Learned Counsel for the Appellant has complained that the District Judge has not considered a number of affidavits filed by him in respect of the merits of the case. In our opinion, the merits of the original allotment order inter se the Appellant and Mashkoor Ahmad were no longer open either before the District Supply Officer in the review application or in the appeal against the order of review. This matter was finally concluded by the first allotment order when it was not challenged in appeal by any party and when no assertion was made in the review application that this finding was obtained by fraud or misrepresentation. That being so, there was no occasion for the District Supply Officer to cancel the allotment in favour of Mashkoor Ahmad in respect of the ground floor portion and to allot the same to the Appellant. The District Judge was justified, in appeal, in restoring the original order of allotment in favour of Mashkoor Ahmad in respect of the premises on the ground floor. We may incidentally mention that the landlord, at whose instance the proceeding were re-opened by the District Supply Officer, has not complained against the order of the District Judge, restoring the allotment in favour of Mashkoor Ahmad.
It has further been argued that from the material on record it was clear that title suit for cancellation of sale deed dated 14.9.1979 was dismissed in default as well as restoration application was also dismissed. Therefore, it cannot be said that proceedings were in continuation. Respondent No. 2 has admitted this fact that Rajesh Kumar Agarwal was a co-owner of the house in question. As regards the relationship of landlord and tenant. Rent Control and Eviction Officer is having full jurisdiction to decide it but the finding to that effect is not res judicata in a regular suit as Respondent No. 2 himself has admitted this fact regarding share of Rajesh Kumar Agarwal in the mortgage deed dated 26.4.1969. Petitioner has further placed reliance upon following two judgments. The same are being quoted below:
Kunwar Gulab Singh v. Zila Purti Adhikari and two others, 1981 ARC 43.
Thus, even though the question as to who out of the two, namely Gaya Prasad Mehrotra and Achal Behari Mehrotra was the landlord may be in dispute, the proceedings u/s 16 cannot be put off indefinitely merely because of the existence of the dispute. The Rent Control Authorities are not concerned with the question of ownership. They are concerned only with the question as to who was the landlord. Even though there may be disputes as between co-owners who may be in actual possession or indirect possession through parents over separate portions of joint property, it is clear that so far as letting out the premises is concerned, the co-owner who had been letting out the premises earlier should be deemed to have the right to continue to let out the premises in future as well until the dispute between the co-owners is resolved by partition or otherwise. The Rent Control Authorities cannot disturb the possession of one co-owner over any portion of the joint property. As held by one of us in D. S. Victor v. District Judge, Bareilly and in Kedar Nath Tandon Trust v. District Judge, the person to be deemed to be landlord for the purposes of these proceedings in the person who was realizing rent immediately before the occurrence of vacancy. This matter being directly connected with the passing of an order u/s 16, the Rent Control Authorities have inherent jurisdiction to decide the question. Their decision may not operate as res judicata when the dispute relating to title ultimately comes up for decision before a civil court, but the decision would be operative as far as proceedings u/s 16 are concerned. A reference may in this connection be made to the law laid down in Om Prakash Gupta v. Dr. Ratan Singh, by a Constitution Bench of the Supreme Court. The view expressed by two learned single Judges respectively in D. S. Victor v. District Judge and Smt. Kailashwati v. Additional District Judge, that where a serious dispute arises with regard to title, it can only be decided by the civil court and not by the Rent Control Authorities, does not take into account the law laid down by the Supreme Court in Om Prakash Gupta (supra) and cannot therefore, be accepted as correct.
In this view of the matter it was necessary for the Rent Control and Eviction Officer to consider for the purposes of proceedings u/s 16 as to which of the contending parties was the landlord and in case Gaya Prasad Mehrotra was found to be landlord also to consider the question of release raised by him. The question of allotment as prayed for by the Petitioner will also thereafter be considered by the Rent Control and Eviction Officer. The Petitioner''s contention is that the release application moved by Gaya Prasad Mehrotra was belated and was not maintainable. This matter can also be agitated before the Rent Control and Eviction Officer.
Mangi Lal v. Vth Additional District and Sessions Judge, Lucknow and Ors., 1981 ARC 493.
On the question of title and relationship of landlord and tenant, the contention of Sri R. N. Trivedi is that as serious controversy was raised in this regard, it was not open to the prescribed authority or to the Additional District Judge, Appellant authority u/s 22 of the Act, to have gone into the question and that the matter could only be decided by the civil court. He has in this connection relied on D. S. Victor v. District Judge, Bareilly and Smt. Kailashwati v.I Vth Addl. District Judge. These cases, however, have been overruled by a Division Bench decision in Kunwar Gulab Singh v. Zila Purti Adhikari in which it was held that the cases were contrary to the law laid down in Om Prakash Gupta v. Rattan Singh and Anr., a decision of the Constitution Bench, which was not brought to the notice of the learned single Judges who had decided the above noted cases. Sri R. N. Trivedi has tried to distinguish Kunwar Gulab Singh''s case on the ground of facts inasmuch as the dispute there in was as to which of the co-owners was landlord and that dispute had arisen in a case u/s 16 and not u/s 21. The principle applicable, is however, the same, and the single Judge decision were expressly overruled by the Division Bench whose decision is binding on me. The contention of learned Counsel Sri R. N. Trivedi that the Supreme Court ruling is applicable only where the controversy with regard to title is not of a serious nature does not appeal to me. Every controversy which constitute a list between the parties is required to be determined by the Court or the Tribunal before which it is presented, and the competency of the Tribunal cannot be dependent on the simplicity or complicated nature of lis. It was made clear by their Lordships of the Supreme Court that the Tribunal had the jurisdiction to decide such dispute, though the decision of the Tribunal may not be in res judicata a regular suit in which a similar suit may directly arise for decision."
In such situation learned Counsel for Petitioner submits that the order passed by Respondents is wholly illegal and without jurisdiction and liable to be set aside.
On the other hand Sri Manish Goel, learned Counsel appearing for Respondent No. 2 submits that present writ petition is not maintainable in view of the fact that it is against an interlocutory order and does not decide the rights of parties and Petitioner has a remedy by means of filing a revision u/s 18 of the Act. Further submission has been made that Petitioner being an unauthorized occupant has got no legal right over property in dispute inasmuch as the effect of the order is that he will be afforded full opportunity to lead evidence and appropriate orders be passed. It has further been submitted that review application filed by Petitioner was maintainable against the order dated 25.10.1982. As it was held that house in question is not lying vacant and is not available for allotment, only on the point that Petitioner is living in the said accommodation from 5.7.1976 with the consent of Rajesh Kumar Agarwal and he has purchased the same from him. As there was no compliance of Rule 8, therefore, immediately an application for review was filed. The burden was upon Petitioner to prove that he was living in the house lawfully prior to 1976 with the consent of landlord, therefore, application filed by Petitioner itself was not maintainable. Admittedly, an application was filed u/s 16 of the Act on 28.7.1980 for declaration of vacancy of the house in question. The said application was filed inter alia on the ground that Petitioner is an unlawful occupant of the house in question and he is not entitled for any benefit u/s 14 of the Act. Being an unlawful occupant he is prohibited under the Act to be inducted in the building in any lawful capacity and, therefore, the house in question may be declared as vacant. The order of rejection of the said application will be treated as an order u/s 16(1) of the Act and, therefore, the application u/s 16(5)(a) will be applicable and application filed by Petitioner is maintainable. Rule 16 (5) (a) is being quoted below :
Allotment and release of vacant building.
(5) (a) Where the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with Clause (a) or Clause (b), as the case may be, of Sub-section (1), the District Magistrate may review the order ;
Provided that no application under this clause shall be entertained later than seven days after the eviction of such person.
From the perusal of aforesaid section discloses that right to seek review has been given to every person who claims to be a lawful occupant. It is a necessary requirement under the law. Therefore, review of the order passed under Sub-section (1) becomes procedural were substantive right to seek review flows from the legal right of being an authorized occupant. Therefore, District Magistrate placed the burden of proof upon the answering Respondent even though burden was upon Petitioner which was never discharged by him. Petitioner has not led any evidence to show that Section 14 applies in his case and he was living prior to 5.7.1976. Petitioner being an unlawful occupant by virtue of Section 11 of the Act and, therefore, orders could not have been passed in favour of Petitioner by holding him a lawful occupant of the building. The son of answering Respondent was having no legal right in the life time to execute a sale deed in favour of Petitioner, who was in unlawful occupation of the house and alleged sale deed is a subject-matter of consideration before the competent court of law. The application was filed immediately after the order, i.e., on 23.11.1982 and Petitioner has filed his objection. The application was fully maintainable but it has taken a considerable long period of time, therefore, the answering Respondent cannot be held responsible for the same. Any order passed u/s 16(1) is subject to the provision of Section 16(5) of the Act.
Sri Manish Goel appearing for Respondent further submits that scope of Section 16(5) is wider than scope of the proceedings under Order XLVII, Rule 1 of CPC Code. The person claiming to be a lawful occupant has been given absolute authority to approach the District Magistrate on merits as well as maintainability to seek review, unlike Order XLVII, Rule 1 of CPC Code. Therefore, u/s 16(5) of the Act, the District Magistrate has full authority to set aside the order passed in exercise of the proceedings u/s 16(1) of the Act and also can record conclusions on the basis of material produced before him in the said proceedings without any limitation. It is only the satisfaction of the District Magistrate that earlier orders passed were not in accordance with the provisions of the Act. Once such satisfaction is recorded. District Magistrate was having full competency to set aside the order under the proceedings u/s 16 of the Act. This is evident from the intention of the Legislature as can be culled out from Section 16(5)(d) of the Act. Learned Counsel for Respondents has relied upon following judgments which are being quoted below :
Nand Lal v. District Judge, Dehradun and Ors., 1981 UPRCC 276.
Section 12 of the Act lays down various circumstances where the authorities concerned can declare, that the property should be deemed vacant. Section 12 of the Act creates a legal fiction. The provisions of this section are to be very strictly construed. The question of allotment would only arise if under the provisions of Section 12 of the Act the property could be deemed vacant in the eye of law. Section 16 of the Act gives a power to the District Magistrate by order requiring the landlord to let any building which is or has fallen vacant or is about to fall vacant. In the case of deemed vacancy also, therefore, once the authorities come to the conclusion that it should be deemed vacant u/s 12 of the Act, then the District Magistrate can pass an allotment order. Section 16(5) of the Act enables the landlord or any other person claiming to be lawful occupant of the building or any part thereof comprised in the allotment order to file a review application before the District Magistrate alleging that the allotment order was not made in accordance with Section 16(a) of the Act. Section 16(a) of the Act would come into effect only if either the property is fallen vacant or is about to fall vacant or if the property deemed to be vacant in the eye of law. Therefore, while considering a review application u/s 16(5) of the Act, the District Magistrate has to determine two jurisdictional facts, namely, whether the property can be deemed vacant in the eye of law and secondly as to whether the applicant who may be either the landlord or any other person, whether he is a lawful occupant of the building or not.
In the instant case, the Rent Control and Eviction Officer decided the review application u/s 16(5) of the Act as I have already stated above on 17th July, 1980 holding that the property should be deemed vacant and further that the Petitioner was not a tenant of the premises in dispute and as such could not be held to be a lawful occupant as required by Section 16(5) of the Act.
Section 16 of the Act empowers an aggrieved party aggrieved by the order passed by the District Magistrate to file a revision before the District Judge. The District Judge in the exercise of his jurisdiction has to examine whether the jurisdictional facts decided by the Rent Control and Eviction Officer have been rightly decided or not. The allotment order can be held to be valid only if the vacancy deemed u/s 12 of the Act was a valid fiction applicable to the facts of the case and secondly if the applicant u/s 16(5) of the Act was not a lawful occupant. Both these jurisdictional facts have to be determined by the revisional court before the application for review can be rejected by the District Judge. In the instant case, the District Judge has not considered any of these jurisdictional fact at all. No evidence has been considered and in fact, the District Judge has not applied his mind at all to these two jurisdictional facts. In the circumstances, so far as the first contention raised by the learned Counsel for the Petitioner is concerned, in my opinion, is well founded.
Dr. (Smt.) Keshav Devi Vs. Girdhari Lal Pahwa and Others,
Learned Counsel for the Appellant urged that the Addl. District Magistrate had no power to allow the review application made by G. L. Pahwa or to recall his order dated 4.1.1978 allotting the premises in dispute to the Appellant. Section 16(5) provides for review of an order of allotment at the instance of a landlord on an application made within 7 days. In the instant case, the Addl. District Magistrate by his order dated 14.12.1981 recalled his order dated 4.1.1978 allotting the premises in dispute to the Appellant on the ground that no notice of the proceeding had been served on the landlord, Respondent No. 1 and that there was enough evidence on record to show that the premises in dispute was a part of the landlord''s accommodation, yet he was not given opportunity to nominate a tenant of his choice. The Addl. District Magistrate therefore, recalled the order on the ground that the allotment order had been issued in violation of the mandatory provision of Section 17(2) of the Act. No exception can be taken to the correctness of the merit of the order of the Addl. District Magistrate. As discussed above we have already expressed our opinion that the allotment order dated 4.1.1978 issued in Appellant''s favour was rendered illegal for the non-compliance of the mandatory provisions of Section 17(2) of the Act. In that view even if there was any procedural defect in entertaining the review application, it would not be proper and desirable to interfere with the order of the Addl. District Magistrate more so, when the High Court has already upheld that order.
Madhu Gopal v.VIth Additional District Judge, Agra and Ors., 1988 (2) ARC 1: 1988 (2) AWC 818.
Having heard learned Counsel for the parties and given the matter a careful consideration we have not the slightest hesitation in holding that a landlord can apply for review of an order of allotment u/s 16(5)(a) even if he is not in actual physical possession thereof. The words "claiming to be a lawful occupant of a building or any part thereof" qualify only the words any other person and not the landlord occurring in Sub-section (5) (a) of Section 16. It is only in regard to a person other than a landlord that the right to apply for review is restricted to those who claim to be a lawful occupants of the building. This restriction, upon the plain terms of Sub-section (5) (a) cannot be read in relation to the landlord applying for review under that provision. Neither the language of that provision nor the scheme of the enactment as we shall presently demonstrate, justifies the contention that it is only those landlords who may be in actual physical possession on whom the right of review u/s 16(5) has been conferred by the statute.
In the case of Niren Kumar Das (supra), Hon''ble N. D. Ojha, J., (as he then was) had occasion to consider the same contention, namely, that is it only that landlord who is in actual physical occupation of the building who can apply for review u/s 10(5)(a). The contention was examined in depth and rejected after a careful and exhaustive analysis of Sub-section (5) (a) of Section 10 and the scheme of the enactment. With respect, we cannot usefully add to the reasoning adopted by his Lordship and would therefore, content ourselves with quoting the relevant exerpts from the judgment. See paragraph 8 or the report at page 52 which reads thus :
According to counsel for the Petitioner the words claiming to be lawful occupant'' in Sub-section (5) of Section 16 would govern not only any other person but also the landlord. It was urged that since the instant case the landlord could not be said to be a person who was in lawful occupation of the building, Sub-section (5) was not applicable. In my opinion, if this construction is put to Sub-section (5), no landlord would be in position to make an application for setting aside an order of allotment passed under Clause (a) of Section 10(1) of the Act. In those cases where the accommodation has actually fallen vacant and has been occupied by the landlord, his occupation would be lawful in his capacity of being the owner of the property only till the order of allotment has been passed in respect of the said accommodation. The moment an order of allotment is passed which has the effect of issuing a direction to the landlord to let out the accommodation to the allottee the landlord is bound to place the allottee in possession over the accommodation. If he fails to do so and continues to occupy the property, his continuance would become unlawful. Likewise, if it is a case falling u/s 12 of the Act, viz., even though the accommodation has not actually been vacated by the sitting tenant but in respect of which a deemed vacancy can be presumed the landlord will not be in a position to make an application under Sub-section (5) inasmuch as he is not actually occupying the house. The distinction between possession and occupation is well-settled. When the Legislature specially conferred a right on the landlord to make an application for setting aside an order of allotment passed u/s 16(1)(a) that right cannot be negatived by interpreting the said Sub-section in a manner as suggested by counsel for the Petitioner. In my opinion, the words ''claiming to be lawful occupant'' apply only to other persons. They do not apply to the landlord. The matter can be looked at from another angle. Had the intention of the Legislature been, as has been submitted by counsel for the Petitioner, the words, the landlord or any other person would not have been used at all. In place of these words the words ''any'' could have served the purpose. In that event Sub-section (5) would have started with the words ''where any person claiming to be lawful occupant.'' I am, therefore, of opinion that the application which had been made by Respondent No. 4 on January 4, 1972 would be an application of the nature contemplated by Sub-section (5) of Section 16 of the Act and the order of the Rent Control and Eviction Officer dated August 26, 1972 would in view of Section 43(2)(b) be one u/s 10(5) and would accordingly be appealable u/s 18 of the Act.
We respectfully agree with the entire reasoning offered in support of the conclusion that the restriction arising from the words ''claiming to be a lawful occupant'' cannot be read into Section 16(5)(a) where the person applying for review happens to be the landlord. We also agree with the opinion expressed in the case of Shyam Dass (supra) and the observation made by the learned Judge in paragraphs 18 and 19 of the report which are extracted here for convenience sake :
Section 16(5)(a) has been quoted above. Clause (a) of Sub-section (5) of Section 16 refers to category of persons who are competent to file an application, one is the landlord and the other is a person claiming to be a lawful occupant of the building. It cannot be urged that a landlord who is not in occupation of the building is excluded from the purview of the person competent to file an application u/s 16(5) of the Act.
What is generally known as an order of allotment is made u/s 16(1)(a) and it requires a landlord to let a building. The landlord is vitally affected by the making of an order u/s 16(1)(a). The Legislature, therefore, intended that he can file an application u/s 16(1)(a). Similarly, a person claiming to be a lawful occupant of a building can be vitally affected by both an order u/s 16(1) (a) and (b). u/s 16(1)(a) and allotment order is made which would affect the person who is in occupation of the building possibly on being evicted. Similarly, when an order of release is made u/s 16(1)(b) releasing the whole or a part of a building in favour of the landlord. The person in occupation of the building is vitally affected. I am, therefore, unable to agree with the view taken in the case of B. Soloman (supra) that unless the landlord is in physical occupation of the building, he cannot file an application u/s 16(5) of the Act. I would therefore, hold that an application u/s 16(5) can be filed by a landlord even if he is not in physical occupation of the building in question.
Section 16(5)(a) provides for review on the ground that the allotment order has not been made in accordance with Clause (a) or Clause (b), as the case may be, of Sub-section (1). By an order made under Clause (a) the landlord is directly and vitally affected whether he is in actual physical occupation or not, as we will presently demonstrate. By an order of release under Clause (b) as well as an allotment order under Clause (a) it is the person claiming to be a lawful occupant who is hit. The Legislature has, therefore, conferred the right of review on these two: the landlord and the person claiming to be a lawful occupant. Let us now examine how the landlord is affected by an order made u/s 16(1)(a). Upon a building falling vacant, the landlord may apply for its release under Clause (b) on the ground that he requires it for his personal use and occupation. If he happens to be occupying a part of the building the remaining part of which has fallen vacant, he has right to nominate a tenant of his choice (Section 17). If, as in the present case, it is a case of first allotment, he has again been invested with the right to nominate (Rule 10 (9)).
It will, thus be seen that in each of these situations even though the landlord is not in actual physical occupation of the building can there be the slightest doubt that he is not any the less directly and vitally hit by an illegal order of allotment than the landlord who is in actual physical occupation of the building? The answer must, in our considered view, be in the negative as well have been able to discern not valid reason in the language of the provision other scheme of the Act making any such distinction between the two classes of the landlords.
Having conferred these and other important rights on the landlord the Legislature seems to have felt that in addition to the remedy by way of revision the landlord should also enjoy a simple and quicker remedy by way of review before the very authority which made the order of allotment, such a remedy being undeniably for more convenient and expeditious than a regular revision u/s 18 for effecting such a purpose, there seems no warrant whatever either upon the plain terms of Section 16(5) or the statutory scheme in which it is set which may justify restricting the remedy only to those landlords who are in actual physical occupation. It should not be forgotten that the landlords who are not in actual physical occupation are deemed to be in juridical possession and, therefore, directly affected by any direction issued to them under Clause (a) to let the building.
We, therefore, hold that an application for review u/s 16(5)(a) of the Act by the landlord is maintainable even if he is not in actual physical occupation. The words ''claiming to be a lawful occupant of the building in Sub-section (5) (a) refer only to the words ''any other person'' and not the landlord. With respect, we endorse the opinion of Hon''ble N. D. Ojha, J., (as he then was) in the case of Niren Kumar Das (supra) as well as of brother Sapru in the case of Shyam Dass (supra) we think that the decision in the case of B. Soloman (supra) in so far as it holds that it is only that landlord who is in actual physical occupation of the building, who can maintain an application u/s 16(5)(a) does not lay down the correct law.
Before we pass on to the second contention urged in support of the petition we may mention that in somewhat similar context in the case of Dr. (Smt.) Keshav Devi Vs. Girdhari Lal Pahwa and Others, their Lordships of the Supreme Court observed that if the order of allotment is demonstrated to have been made in contravention of Clauses (a) and (b) of Section 16(1) of the Act and if that defect is rectified upon an application for review filed u/s 16(5) of the Act, it would not be a sound exercise of discretion to interfere with that order even if there was some procedural defect in maintaining the review application. The position obtaining in the present case is substantially similar. In any case, we have already found that the review application filed by Dr. Saxena was maintainable and was rightly entertained by the Respondent Nos. 1 and 2.
Relying on a decision of the Supreme Court in the case of Sri Ram Pasricha Vs. Jagannath and Others, , Sri S. P. Gupta submitted that as a co-owner Veeresh Saxena would be deemed to be owner of every bit of the property in question and consequently notice to him under Rule 9 (3) and Rule 10 (9) was sufficient compliance with those provisions. We are unable to agree. Like Veeresh Saxena his other brothers would also be owners of the entire property and, therefore, on the same reasoning, the landlords entitled to have their say in the matter covered by Rule 10 (9), if not Rule 9 (3). Where a building is being let out for the first time, every co-landlord ought, in our opinion, be entitled to a notice under Rule 10 (9) and to express his willingness whether or not to throw open the building for letting and, in case he is willing to throw open the building for letting, to nominate a tenant. It is for this reason the District Magistrate is enjoined to serve notice on the landlords to ascertain whether he is willing to throw the building open for allotment and, if so, to nominate a person in whose favour the allotment may be made. He made also intimation to the District Magistrate that he does not want to let out the building in which case it shall not be allotted. If he makes a nomination the building has to be allotted only in favour of that nominee.
Our conclusions finally are that the courts below were competent to entertain the application for review. They were further right in reviewing the order of allotment and setting aside the same. They, however, did not carry the enquiry to its logical conclusion by issuing notices to other landlords and ascertaining their wishes before taking a final decision in the matter of allotment. To that limited extent the Petitioner is entitled to succeed.
Madhu Gopal Vs. VI Additional District Judge and Others,
Mr. G. L. Sanghi, learned Counsel appearing for the tenant, has sought to argue that by virtue of the proviso a landlord who was not in occupation, was not entitled to apply. We are unable to accept this. The proviso puts an embargo of 7 days in making the application for review. It can only apply to those who were in lawful occupation at the time of the making of the original order. It cannot curtail the rights of the landlord, as such, it only affects any other person who was in lawful occupation. In any event, it is a well-settled principle of construction that unless clearly indicated, a proviso would not take away substantive rights given by the section or the Sub-section. A landlord has a right to the property. The section should not be so construed as to defeat the right to possession of property in appropriate cases unless the intention of the Legislature is manifest. We find no such clear intention in the facts of this case.
We are, therefore, of the opinion that the High Court came to the correct conclusion that a landlord, even though not in actual physical possession at the time of the possession of the property, can ask for review of the order of release or allotment. It must be borne in mind that this view was also expressed by Mr. Justice N. D. Ojha, as our learned brother then was, in his judgment in Niren Kumar Das Vs. The District Judge, Pilibhit and Others, We agree with that interpretation.
Further submission has been made that order impugned has been passed by the authority concerned after due perusal of record after considering provisions of the Act that it was followed properly as it would have been followed and the order dated 25.10.1982 was passed contrary to Rule 8 of the Act No. 13 of 1972. As burden was shifted upon landlord to establish that tenant was not inducted prior to 5.7.1976, in such circumstances, the District Magistrate has considered the same and entertained the application for review filed by the answering Respondent. The contention of Petitioner to this effect that order dated 25.10.1982 is an order u/s 14 of the Act is totally misconceived. From perusal of Section 14 of the Act, it discloses that it does not require passing of any specific order. What is required is satisfaction of certain conditions which confers certain rights upon the occupants. A fiction is created by law in favour of an occupant, if it is established, has got no right to be considered on the question of declaration of vacancy by the competent authority. The Act, therefore, places a check upon the own powers of the authority to declare vacancy so as to put lawful occupant in possession and to eliminate illegal occupants.
As regards the argument raised by Petitioner regarding stepping into the shoes of the co-owner, the said defence is baseless and does not confer any right of legal occupation upon tenant. The suit for cancellation of sale deed is still pending, therefore, tenant cannot confer title as co-owner for the purposes of the Act. Petitioner has failed to establish any partition of the property and any family settlement amongst the family members of landlord, therefore, he cannot claim exclusive ownership of the property in question. Further, it is well-settled in law that co-owner cannot be permitted to sale the share in the joint property.
Sri Manish Goel, further submits that in the present case there were three remedies available to the answering Respondent (1) by means of filing a writ petition against order dated 25.10.1982, (2) to challenge the said order u/s 18 of the Act and (3) to file a review application u/s 16(5)(a) of the Act.
In such situation, he has availed one of the said remedies, therefore, it cannot be said that order passed could not have been passed by Respondent. Reliance has been placed in Achal Misra Vs. Rama Shanker Singh and Others, The same is being quoted below :
On the scheme of the Act, it is clear that the preliminary step is to declare a vacancy. At this stage, an enquiry has to be made including an enquiry involving at least two respectable neighbours. It is thereafter that the vacancy has to be notified and objections invited. This is followed by either dropping of the proceedings on the objections being upheld that there was no vacancy or by allotment to a tenant on finding the vacancy or in ordering a release of the building, in case a landlord was found entitled to have such a release under the Act. Therefore, the notifying of a vacancy is only a step in the process of making an allotment of the building to a tenant. The Act contemplates that no building should be let out by a landlord except through the process of allotment by the Rent Control Authority. Since the order notifying a vacancy is only a step in passing the final order in a proceeding under the Act regarding allotment, it is clear that the same could be challenged while challenging the final order, unless there is anything in the Act precluding such a challenge or conferring a finality to the order notifying a vacancy. It was held long ago by the Privy Council in Maheshur Singh v. Bengal Government.
We are not aware of any law or Regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not do so, of forfeiting forever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing, whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities.
In Sheonath v. Ramnath the privy council reiterated that a party is not bound to appeal from every interlocutory order which is a step in the procedure that leads to a final decree. It is open on appeal from such final decree to question an interlocutory order.
It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taking to challenge the final order, as being an order which is a preliminary step in the process of decision making and in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy''s case, which has disapproved the ratio of the decision in M/s. Trilok Singh and Co., cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy''s case and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody''s case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Smt. Kunj Lata v. Xth Additional District Judge, Kanpur Nagar and Ors. (supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter to approach the High Court. It would really be a case of election of remedies.
We are, therefore, satisfied that the High Court was in error in allowing the writ petition solely on the ground that the landlord had not challenged the original order notifying the vacancies then and there. The decision of the High Court in the writ petition, therefore, requires to be set aside and the writ petition remanded to the Court for a fresh hearing and disposal in accordance with law, including the question whether the order notifying the vacancy was proper. It would also be necessary for the High Court to consider the effect of the cancellation of the order in favour of Respondent No. 2 considering the nature of the allotment made in his favour, even assuming that the High Court does not find any reason to interfere with the order notifying the vacancy or with the order making the allotment. The appeal is hence allowed. The judgment of the High Court in the writ petition filed by the allottees is set aside and the writ petition is remanded to the High Court for afresh disposal in accordance with law and in the light of the observations contained in the judgment. The High Court, it is hoped, will expeditiously dispose of the writ petition afresh pursuant to this order of remand, in the circumstances of the case preferably within a period of six months of the receipt of a copy of this judgment.
Virtually Petitioner wants to grab the property on the aforesaid basis. In view of aforesaid fact, it is clearly established that initially Petitioner claims himself to be tenant but subsequently only to defeat the rights of answering Respondents, documents have got manufactured in order to grab the house in question. Learned Counsel for Respondent has placed reliance upon a judgment in Mohan Lal Mehra v. State of U. P. and Ors., 1995 (1) ARC 553. The same is being quoted below :
After hearing learned Counsel for the parties, I am satisfied that the allegations in the petition are correct as they are supported by overwhelming evidence on record. This is another case in the series of cases of ''illegal house grabbing which has become the order of the day in the State of Uttar Pradesh today. Unless the Court intervenes and stops these brazan acts of lawlessness democracy and rule of law will totally collapse in the State. Several cases of illegal house grabbing have come to the notice of this Court and in many of them orders of restoration has been passed. It is indeed deeply regrettable that the administrative authorities have turned a blind eye on all these illegal and brazen acts of lawlessness by politicians and Ors. and they are not doing their duty of upholding law and order. This Court will be failing in its duty under the Constitution if it does not intervene in these matters as it is evident that the administrative authorities have abdicated their solemn duty to protect the rights of the citizens and uphold the law and order which is deeply regrettable.
As regards the facts of the present case, the law is well-settled that when a release application is filed no prospective allottee has a right to object. As held by the Supreme Court in Vijay Kumar Sonkar v. incharge District Judge, and others, 1995 (2) ARC 1 , a tenant has no right to be heard in a release application of a landlord. In the present case, although in the order dated 10.2.1995 the Rent Control and Eviction Officer has stated that the prospective allottees have no right to object but it is evident from the facts that he has permitted such prospective allottee to object and thus, the Rent Control and Eviction Officer has clearly committed an illegality and has violated the law laid down by the Supreme Court in Vijai Kumar Sonkar''s case (supra). In fact from a perusal of the order-sheet dated 10.1.1995 which is part of Annexure-11 to the writ petition it is evident that the Rent Control and Eviction Officer gave time to the Respondent No. 6 to object. This is also evident from the order-sheet dated 8.2.1995 where it is stated that the objections were filed to the release application by prospective allottees. Moreover, from the very fact that it was a composite order both rejecting the release application as well as allotting the premises to Respondent No. 6, it is evident that the Rent Control and Eviction Officer not only permitted objections to the release application by the prospective allottees but in fact he was sitting with a predetermined mind to reject the release application and allot it to Respondent No. 6. This impression is fortified by the fact that after passing the following order on 8.2.1995, Heard and fixed 10.2.1995, for order the Respondent No. 4 thereafter on the same day by another order entertained the objections of the prospective allottees including Respondent No. 6 (vide order-sheet which is Annexure-11 to the writ petition). Thus, it is evident that objections were entertained by Respondent No. 4 even after the hearing of the release application was over.
I have already observed in a large number of cases which have come up before me that many of the Rent Control and Eviction Officers of the State of U. P. are passing collusive and illegal orders either under political or other pressure or because of some illegal inducement. The modus operandi in almost all the cases of illegal house grabbing (which is a phenomenon which has arisen in this State since the last 6 months or so) is practically the same. A collusive order of allotment is obtained from the Rent Control and Eviction Officer by putting political or other pressure on him or offering him some inducement, and then storming into the house with a mob of armed hooligans, forcibly evicting the occupants, and throwing their goods on the street. The same has happened in the present case also as the facts disclose and the time has now come when this Court must take strong action in these cases otherwise law and order will collapse.
In view of aforesaid fact, learned Counsel for the Respondents submits that the present writ petition is liable to be dismissed.
I have considered the submissions made on behalf of parties and have perused the record. From the record it is clear that an application for vacancy was filed and from perusal of report of Rent Control Inspector, it appears that there is no compliance of Rule 8 which provides that it shall be made in the presence of landlord-tenant or any other occupant. The fact mentioned in the report should whereever practicable be elicited from at least two respectable persons in the locality and conclusion of the inspection report shall be pasted on the notice board of the office of District Magistrate for information of general public. From the perusal of report, it does not appear that strictly the rule has been followed. Further one thing has to be seen that Rent Control Inspector himself has mentioned this fact that Petitioner is living in house in question for the last three years. How this conclusion has been drawn and no reasons have been recorded. As regards the ownership, which is claimed by Petitioner appears to be incorrect approach of the Respondent. While considering the affidavit filed by Sri Rajesh Kumar Agarwal in favour of Petitioner, it was to be seen whether when father is alive and property has not been partitioned, how a sale deed can be executed by a son instead of the fact that father is alive and an objection to that effect was filed by Respondent No. 2. As regards the finding that burden was upon landlord to proof, in my opinion, it is not correct. Burden was upon the tenant to proof that he is occupying the premises in dispute with the consent of landlord prior to 5.7.1976, therefore, the order dated 25.10.1982 was not passed in accordance with law taking into consideration the relevant provisions of law. Further, it is to be noted that if the provision of particular rule and provision of law has not been complied with then aggrieved party can file an application u/s 16(5) of the Act. Admittedly, the order was passed contrary to the Rule 8 of the U. P. Urban Buildings (Regulation of Letting and Eviction) Rules, 1972 as well as to the principles applicable while deciding the application u/s 16 of the Act. From perusal of the order dated 25.8.1982, it is clear that tenant-Petitioner has not discharged the burden by proving the fact on the basis of relevant record to show that he remained in occupation prior to 5.7.1976. An observation has been made to this effect in the order impugned dated 25.10.1982 was an order u/s 14 cannot have any relevance for giving footage to the case of tenant. In the opinion of the Court, if certain provision of law has not been complied with the application u/s 16(5) was maintainable. The contention of Petitioner to this effect that application filed by answering Respondent was not within the parameters of the Section 16 of the Act, is not correct. The said application was filed on the ground that Petitioner is an unlawful occupant of the house in question, therefore, he is not entitled for benefit u/s 14 of the Act. It is well-settled in law that an unauthorized occupant have got no legal right to pursue the remedy. In such situation, in my opinion, the application filed by Respondents u/s 16(5) was maintainable and the court below was justified in reviewing the earlier order and has observed that now opportunity will be given to the parties to plead their case.
In view of aforesaid fact, I find no merit in the writ petition. The writ petition is devoid of merits and is hereby dismissed, however, without imposing any cost.