Brijeshwar Tyagi v. R. C. & E. C. Meerut — 1979 DIGILAW 958 (ALL)

ORDER S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India. The premises in dispute is a shop No. 954, P. L. Sharma Road, Begam Bagh, Meerut. The tenant is carrying on the business of sale of fire-arms in the said accommodation. 2. The petitioner is the tenant. Ashok Kumar Gupta respondent No. 3 is the owner and landlord of the premises and respondent No. 4, S. C. Gupta is the father of Ashok Kumar Gupta. The petitioner tenant made an application under Section 3-A of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, hereinafter referred to as the old Act. This application was decided on 11th August, 1971. Thereafter an application for review was made by respondent No. 3 on 18th February, 1972. This application was dismissed on 19th March, 1976 by the District Supply Officer/Delegated Authority Meerut on 19th March, 1976. Respondent No. 3 filed an appeal before the District Judge, Meerut. This appeal was decided by the IV Additional District Judge, Meerut on 19th December, 1978. The order dated 19th March, 1976 was set aside and the case was remanded to the Rent Control and Eviction Officer for deciding the application under Section 3-A of the old Act afresh in accordance with law'. The petitioner has challenged the order dated 19th December, 1978 by means of the present writ petition. 3. Learned counsel for the petitioner has made two submissions. His first contention is that the application for review was not maintainable in law' and his second contention is that in any case no appeal lies against the order dated 19th March, 1976 and as such the impugned order is wholly without jurisdiction. Learned counsel for the respondent in reply has contested the above two contentions and has further submitted that since there is material suppression of facts by the petitioner and the petitioner had submitted to the remand order dated ,19th March, 1976 as well as since the petitioner is guilty of laches it is not a fit case for interference under Article 226 of the Constitution of India. It is not necessary for me to get into the contentions raised by the respondents counsel as I am of the view that an application for review was maintainable as well as an appeal lay against the order dated 19th March, 1976. 4. It is not necessary for me to get into the contentions raised by the respondents counsel as I am of the view that an application for review was maintainable as well as an appeal lay against the order dated 19th March, 1976. 4. Initially the shop in dispute belonged to the joint family of which respondent No. 4 S. C. Gupta was the karta. On 1st September, 1968 S. C. Gupta as Karta of the family entered into an agreement with the petitioner and let out the shop to the petitioner at an agreed rent of Rs. 250/- per mensem. On 1-11-1968 partition took place in the family. This partition was confirmed by a decree dated 9-5-1969 passed in original suit No. 6 of 1969 Ashok Kumar Gupta v. S. C. Gupta and others. In view of this partition the shop in dispute came to the share of Ashok Kumar Gupta. The petitioner thereafter executed a second agreement on 1st January, 1970 with Ashok Kumar Gupta. Under this agreement the petitioner agreed to pay a sum of Rs. 250/- per mensem with enhancement of rent after a certain period of time. The petitioner continued to pay rent at the rate of Rs. 250/- per month to Ashok Kumar Gupta from 1st November, 1968, up to 31st August, 1970 against proper receipts. 5. It appears that thereafter the petitioner obtained an allotment order dated 28th August, 1970 though in fact he was in possession of the shop by virtue of an agreement with the landlord with effect from 1st September, 1968. After the petitioner obtained an allotment order he moved an application under Section 3-A of the old Act for fixation of the annual reasonable rent in respect of the premises. The declaration of annual reasonable rent under Section 3-A of the old Act is final subject to any suit having been filed under Section 5, sub-clause (4) of the old Act. The order passed under Section 3-A of the old Act is in the nature of a declaration and is effective against all persons dealing with the property. In this application the petitioner with a mala fide motive did not mention at all about the factum of agreement which he had entered into. The order passed under Section 3-A of the old Act is in the nature of a declaration and is effective against all persons dealing with the property. In this application the petitioner with a mala fide motive did not mention at all about the factum of agreement which he had entered into. He only made S. C. Gupta as a party to the application and did not make Ashok Kumar Gupta as a party though he fully knew that Ashok Kumar Gupta was the owner and landlord with whom he had entered into an agreement on 1st January, 1970 and in fact had been paying rent to him. 6. When notices were served on S. C. Gupta he filed a reply stating therein about the factum of an agreement having been entered into by the petitioner with him in respect of the premises and in the end categorically stated in the reply that he does not have any concern with this application impliedly because the property in dispute had gone to the share of Ashok Kumar Gupta. In spite of this specific pleading on the part of S. C. Gupta the petitioner did not implead Ashok Kumar Gupta as a party to those proceedings and obtained an order from the Rent Control and Eviction Officer on 11th August, 1971 in his favour declaring the rent of the property at the rate of Rs. 65/- per mensem. Since there was no contest on the part of Ashok Kumar Gupta and the petitioner fraudulently concealed the fact of an agreement with Ashok Kumar Gupta the Rent Control and Eviction Officer held that there was no agreement and as such he declared the rent under Section 3-A of the old Act. The fact as to whether there is an agreement or not was material for determining the reasonable annual rent under Section 3-A of the old Act as Section 5, sub-clause (1) of the old Act clearly provided that the rent payable for any accommodation shall be such as may be agreed upon between the landlord and the tenant. If there was an agreement the petitioner was bound to pay rent at the rate mentioned in the agreement. The petitioner, therefore, obtained this order by misrepresenting that there was no agreement and further acted fraudulently in not making the real owner and landlord Ashok Kumar Gupta as a party to the proceedings. 7. If there was an agreement the petitioner was bound to pay rent at the rate mentioned in the agreement. The petitioner, therefore, obtained this order by misrepresenting that there was no agreement and further acted fraudulently in not making the real owner and landlord Ashok Kumar Gupta as a party to the proceedings. 7. The petitioner did not stop at this stage after obtaining an order under Section 3-A of the old Act. He further filed a suit No. 443 of 1971 in the court of the 1st Civil Judge, Meerut under Section 5, subclause (4) of the old Act for a declaration that the agreements executed on 1st September, 1968 and 1st January, 1970 were unfair and had been obtained by respondents Nos. 3 and 4 by exercising undue influence and coercion upon the petitioner. The 1st Civil Judge Meerut by his judgment dated 9th August, 1974 dismissed the suit after holding that the agreements dated 1st September, 1968 and 1st January, 1970 are not unfair nor they have been brought about by exercising .any undue influence or coercion upon the petitioner. A revision was filed against the said order before this Court and it is admitted by the parties that the revision has been dismissed by this Court and as : such the findings recorded in the order elated 9th August, 1974 have become final as the petitioners counsel has further :stated that he had not challenged the -order passed in revision by this Court. 8. In the meantime after the filing of the suit, Ashok Kumar Gupta, when he came to know of this order under Section 3-A of the old Act passed against him on 11th August, 1971, moved a review application before the Rent Control and Eviction Officer. This application was dismissed. Against the order dismissing the application on 19th March, 1976 an appeal has been filed which has been allowed by the District Judge on 19th December. 1978. The appellate court had held that the appeal was maintainable and that since the petitioner had not impleaded Ashok Kumar Gupta, who was the owner and landlord of the premises, and that the order dated 11th August, 1971 had been obtained on his back the order dated 11th August, 1971 was set aside to prevent miscarriage of justice. 9. 1978. The appellate court had held that the appeal was maintainable and that since the petitioner had not impleaded Ashok Kumar Gupta, who was the owner and landlord of the premises, and that the order dated 11th August, 1971 had been obtained on his back the order dated 11th August, 1971 was set aside to prevent miscarriage of justice. 9. From the above facts it is clear that the petitioner had obtained the order dated 11th August, 1971 by fraud and misrepresentation. He concealed the fact of his having entered into an agreement initially with S. C. Gupta and thereafter with Ashok Kumar Gupta. He further concealed the fact that Ashok Kumar 'Gupta was the landlord and owner of the premises in dispute and obtained an order against Ashok Kumar Gupta without impleading him as a party to the application under Section 3-A of the old Act. In fact he played fraud and misrepresented to the court and obtained the order by fraud. 10. Learned counsel for the petitioner in support of his first submission relied upon certain cases for the proposition that no review lies against the order passed by the Rent Control and Eviction Officer on 11th August, 1971. This proposition is well settled. In R. S. Chaube v. Distt. Inspector of Schools (1978 All WC 40) a Division Bench of this Court of which I was also a member, had decided that it is open to a statutory authority to recall or revoke its order if it is obtained by mistake, misrepresentation or fraud. In Writ Petn. No. 10398 of 1978, Mohan Lal Agarwal v. Prescribed Authority decided by me on 9-8-1979 : 1979 (U. P.) RCC 544, I have extended the said principle to the provisions of the old Act and held that the order could be reviewed if the order is based on mistake, misrepresentation or fraud. In Devi Datt Mai v. R. C. & C. O. (1964 All LJ 848) a learned single Judge of this Court relying upon the case of Mahabir Prasad v. District Magistrate, Kanpur (1955 All LJ 252) held that the Rent Control and Eviction Officer can recall or review his previous order in case it is obtained by fraud and misrepresentation. In Devi Datt Mai v. R. C. & C. O. (1964 All LJ 848) a learned single Judge of this Court relying upon the case of Mahabir Prasad v. District Magistrate, Kanpur (1955 All LJ 252) held that the Rent Control and Eviction Officer can recall or review his previous order in case it is obtained by fraud and misrepresentation. In Mahabir Prasads case (supra) a Division Bench of this Court has held that the power of the Rent Control and Eviction Officer does come to an end except in a case where order was secured by fraud, misrepresentation of facts or some other undesirable method. 11. In the instant case since I have come to the conclusion that the order dated 11th August, 1971 has been obtained by fraud and misrepresentation at the back of respondent No. 3 the review application was maintainable in law. 12. In regard to the second contention of the learned counsel the application for review was filed on 18th February, 1972 prior to the coming into force of the new Act. Section 43 (2) (c) of the new Act provides that any proceeding under Section 3-A or Section 5-A of the old Act pending immediately before the commencement of the new Act shall stand transferred for disposal to the prescribed authority and the decision of the prescribed authority shall be deemed to be a decision under Section 8 or 9 of the new Act and shall be subject to an appeal accordingly. It is noteworthy that sub-clause (c) does not speak of the word application. It speaks of proceedings. The application under Section 3-A of the old Act may have been disposed of but the proceedings under Section 3-A were pending as a review had been filed before the commencement of the new Act and as such any order passed in these proceedings would be treated as an order under Section 8 or 9 of the Act which is not only appealable under Sec. 43 (2) (c) of the new Act but also under Section 10 of the new Act. In the circumstances an appeal lay against the order dated 19th March, 1976 and the District Judge acted within his jurisdiction in setting aside the order dated 19th March, 1976 and remanding the case for decision afresh in accordance with law. 13. In the circumstances an appeal lay against the order dated 19th March, 1976 and the District Judge acted within his jurisdiction in setting aside the order dated 19th March, 1976 and remanding the case for decision afresh in accordance with law. 13. In the end I may further mention that the order dated 18th August, 1971 had been obtained against the back of the real owner and landlord Ashok Kumar Gupta this order has been set aside and the case remanded and as such in the ends of justice it is not a fit case tor interference under Article 226 of the Constitution as it has not resulted in any substantial failure of justice. 14. In the result the petition fails and is accordingly dismissed with costs.