Shakil Ahmad and Others vs Anurag Verma and Others

Rakesh Tiwari, J.—Heard Sri J.J. Munir, counsel for the Petitioner and perused the record.

The Petitioner has prayed for issuance of a writ of mandamus commanding the prescribed authority, Aligarh to decide their application for setting aside the order of release dated 9.12.1998 being misc. case No. 14 of 2002 within a stipulated period and further that until decision of the aforesaid case, proceedings in execution case No. 13 of 2002, Ramji Lal v. Maqbool Ahmad and Ors., be directed to remain stayed as against the Petitioners.

Release application u/s 21(1)(a) of U.P. Act No. 13 of 1972 filed by the landlord Respondent was allowed by the Prescribed Authority vide judgment and order dated 9.12.1998. Rent Appeal No. 36 of 1998 preferred by one of the tenant Maqbool Ahmad, has also been dismissed and writ petition No. 33293 of 2002 challenging the aforesaid orders of the prescribed authority as well as appellate authority, has also been dismissed by the High Court vide judgment and order dated 13.8.2002.

According to the Petitioner, the order of release passed by the Prescribed Authority, is a nullity as far as the Petitioners are concerned as the predecessor in interest of the Petitioner No. 1 and 2 namely Mohd. Ahmad was dead at that time and no substitution application had been preferred by the landlord. It is stated that tenant late Mohd. Ahmad was never served with notice of release proceedings and he had no knowledge of the proceedings. It is further submitted that order of release is ex parte against the predecessor in interest of Petitioner No. 3 and 4 as he was never served with notice or summons of proceedings after restoration of the release application.

Taking the aforesaid grounds , the Petitioners have moved an application for setting aside the judgment and order of the prescribed authority which is registered as misc. case no . 14 of 2002, in respect of which a writ of mandamus has been prayed for commanding the prescribed authority to decide it expeditiously and staying the proceedings of execution case No. 13 of 2002, filed by the landlord Respondent.

No other point has been argued by the counsel for Petitioner.

It is not disputed that after death of original tenant Abdul Rahman, the tenancy devolved upon three brothers namely Maqbool Ahmad, Sultan Ahmad (father of Petitioner No. 3 and 4), and Mohd. Ahmad (father and husband of Petitioner No. 1 and 2) and that the matter has been contested by Maqbool Ahmad, who is brother of Sultan Ahmad and Mohd. Ahmad up to the Apex Court. In these circumstances, contention of the counsel for Petitioner that Sultan Ahmad and Mohd. Ahmad had no knowledge about the proceedings. cannot be accepted and in the facts and circumstances of this case, notice to one of the brothers shall be deemed to be sufficient notice to the remaining brothers.

Besides it, the execution case was filed by the Respondent landlord in the year 2002 and the present writ petition had been filed in the year 2003. There being no interim order staying the proceedings of the execution case in this petition, the execution case must have been concluded and possession delivered to the Respondent landlord by now, rendering the writ petition in fructuous by efflux of time.

Even otherwise, this Court in the aforesaid facts and circumstances of the case, is not inclined to interfere in the matter in exercise of its extra ordinary powers under Article 226 of the Constitution.

For the reasons stated above, the writ petition fails and is accordingly dismissed. No order as to costs.