Magan Lal v. District Judge, Bulandshahr — 1978 DIGILAW 727 (ALL)

JUDGMENT K C. Agrawal, J.:- This is a petition under Article 226 of the Constitution filed against the judgment of the District Judge, Bulandshahar dated September 9, 1976. 2. The dispute in the present writ petition is with respect to a shop number 522 Ansari Road, Bulandshahar. One Srimati Chameli Devi was the tenant of this shop. 'Magan Lal, the petitioner had a general merchandise shop adjacent to the shop in dispute. On June 17, 1975, three applications were filed to the Rent Control and Eviction Officer for the allotment of the said shop on the ground that the same was likely to be vacated by Srimati Chameli by 10 the July, 1975. On being directed the Rent Control Inspector submitted a report on 21.6.1975 confirming the likely vacancy of the shop and also expressing his opinion that Magan Lal, who was also applicant for allotment was unemployed. On 21.6.1975 the Rent Control and Eviction Officer notified the vacancy and thereafter passed an allotment order on July 2, 1975 in favour of Magan Lal. On July 9, 1975, Krishna Kumar respondent no. 3, filed an application for allotment and on 18th July, 1975, he preferred an appeal against the order allotting the shop to Magan Lal. 3. The appeal was allowed by the learned District Judge on 9.9.1976 with the findings that the allotment order had been procured by Magan Lai by making false representation of facts. The learned District Judge also observed that Hargovind Prasad Pandey, who was the Rent Control and Eviction Officer and had passed the allotment order in favour of Magan Lal had abused his powers by passing the same in contravention of the provisions of law. The learned District Judge also held that Magan Lal had already a shop in his possession in the neighbourhood of the disputed shop and that he obtained the allotment order by concealing this fact. Aggrieved by the said judgment, Magan Lal filed the present writ petition. 4. The learned counsel for the petitioner made only one submission before me, the same was that as the petitioner had come in possession of the shop in dispute in July 1975 before U P. Act No. 28 of 1976 came into force, he was entitled to regularisation of his occupation under section 14 of U.P. Act No 13 of 1972. The learned counsel for the petitioner made only one submission before me, the same was that as the petitioner had come in possession of the shop in dispute in July 1975 before U P. Act No. 28 of 1976 came into force, he was entitled to regularisation of his occupation under section 14 of U.P. Act No 13 of 1972. In this connection, the learned counsel invited my attention to the relevant averments made in the writ petition as well as in the rejoinder-affidavit and urged that as he was in possession of the shop in question with the consent of the landlord, the learned District Judge committed an error in not conferring the benefit of section 14 of the Act. 5. Section 14, as originally stood, was drastically amended by U.P. Act No. 28 of 1976. By this amendment, a licensee or a tenant in occupation of a building with the consent of the landlord before the commencement of U.P. Act No. 28 of 1976 has to be deemed to be an authorised licensee or tenant of such building. The condition precedent being that no proceeding for eviction was pending before any court or authority on the date of the commencement of the Act. A submission, was, however, made on behalf of the learned counsel for the respondent that as an application for the cancellation of the allotment order had been filed against the petitioner much before coming into force of U P. Act No. 28 of 1976, and the allotment order had been challenged by means of an appeal before the District Judge, as well, the petitioner pas not entitled to get the benefit, of section 14. This raises a controversy as to whether the proceedings for the cancellation of an allotment could be considered as 'or proceeding for eviction " within the meaning of section 14 of the Act. The learned counsel for the respondent also contended that the consent given by a landlord in pursuance of an order of allotment, would not be one contemplated by Section 14 of the Act. According to the learned counsel for the respondent, the consent must have been a voluntary act of the landlord. The learned counsel for the respondent also contended that the consent given by a landlord in pursuance of an order of allotment, would not be one contemplated by Section 14 of the Act. According to the learned counsel for the respondent, the consent must have been a voluntary act of the landlord. Lastly, the submission advanced was that as the petitioner did not claim the benefit of section 14 in the court below he was not entitled to get the judgment of the court below set aside in the present proceeding. 6. As I am inclined to accept the contention of the learned counsel for the respondent on the third point, I do not consider it necessary to express my opinion on the other matters referred to above. 7. For conferring the benefit of section 14 of the Act, the question of fact which is required to be decided is whether the consent had actually been given by the landlord. There is nothing in the judgment of the learned District Judge showing that the benefit of Section 14 was claimed by the petitioner. U.P. Act No. 28 of 1976 had come into force before the appeal was heard by the District Judge. The petitioner ought to have made a claim of regularisation of his occupation before him. If he would have claimed the benefit before the District Judge, the said question could have been inquired into and a decision could have been given. The learned counsel drew my attention to Annexure "4" to the writ petition which is claimed to be an agreement entered into between the petitioner and the landlord. The agreement ought to have been filed by the petitioner before the court below. As the petitioner did not claim the benefit of section 14 at the appropriate stage, it is not possible to entertain that plea at the stage of the writ petition. 8. The learned counsel for the petitioner, however, invited my attention to paragraph 17 of the writ petition and 19 of the rejoinder-affidavit and tried to argue on the basis of the averments made therein that the counsel appearing for the petitioner had made a claim of regularisation of the occupation of the petitioner on the basis of section 14 of the Act, before the District Judge. This his been, however, controverted in the counter-affidavit. This his been, however, controverted in the counter-affidavit. The respondents stated in paragraph 19 that the petitioner never urged before the District Judge that he was entitled to the benefit of Section 14 of the Act. In view of these conflicting averments, it is not possible to accept the submission of the petitioner's learned counsel that the point had although been urged but was not decided. One fails to understand as to why would have the District Judge, not decided the point, when he decided several others, raised on behalf of the petitioner. It leads me to hold that the petitioner had not raised this controversy, and having not done so, cannot now be permitted to do so in the writ petition. It is not possible, therefore for me to accept the contention of the learned counsel for the petitioner that the point was, in fact, put forth and argued in the court below as is well settled, the presumption is that it was not urged there being no mention of it is in the judgment of the District Judge, (See : Shrimati Krishna Pramodasi vs. Dhirendra Nath Ghosh ( AIR 1929 PC 50 ). If the petitioner wanted to establish that the point had been urged, the proper course for him was to file an affidavit of a counsel who argued the appeal. In the absence of such an affidavit, I am not inclined to accept that the point was raised but was not decided. As already pointed out above, this was not a point purely of law. Its decision depended on the determination of the factual position. As the landlord has not even been impleaded as a party in the writ petitioner, it is not possible for me to decide whether the petitioner was in possession of the shop with the consent of the landlord. 9. Apart form the above, as would be noticed from the judgment of the District Judge, the petitioner had fraudulently obtained the allotment order in collusion with the Rent Control authorities. This being the background, this Court should not in exercise its extra ordinary jurisdiction to uphold such an order. 9. Apart form the above, as would be noticed from the judgment of the District Judge, the petitioner had fraudulently obtained the allotment order in collusion with the Rent Control authorities. This being the background, this Court should not in exercise its extra ordinary jurisdiction to uphold such an order. It cannot be forgotten that he entered into possession of the shop under an order of allotment which was fraudulently procured and for which the District Judge was compelled to write that the conduct of Sri Hargovind Prased Pandey Rent Control Officer deserved disapproved. 10. The learned counsel also attempted to challenge the findings of the learned District Judge given on the question that the allotment order was illegal but having realised that the said finding was of a fact he did not pursue the matter. He however contended that Krishna Kumar being not a person aggrieved could not challenge the order of allotment by means of appeal under section 18 of the Act. Its meaning has to be ascertained with reference to the purpose and object of the statute. We must look to the context on which it has been used. Looking from the point of view, it appears to me that it being of the wide import, could include a person who could have filed an application for allotment but could not do so due to an order of allotment in a clandestine manner. The entire proceedings were kept a guarded secret by not following the procedure provided. Accordingly, this submission also has no substance. 11. In the result, the writ petition fails and is dismissed with costs.