Mani Ram Lehia v. Ghansbyam Dass Richariya — 1985 DIGILAW 963 (ALL)

JUDGMENT A.N. Dikshita, J. - By means of this petition Under Article 226 of the Constitution the Petitioner, Mani Ram Lohia. has prayed for issuing a writ of certiorari quashing the Order dated 06.09.1980, passed by Respondent No 3 (Annexure 7 to the petition) allowing the revision of Respondent No. 1 and remanding the case to the Prescribed Authority for disposal in accordance with the directions given in provisional order. 2. The facts giving rise to this petition are: The Petitioner is the owner and landlord of premises No. 68 Parwaran, Jhansi. One Shri Kishori Lai Sharma, Advocate, was a tenant in a portion of the said premises. On 13.06.1971 Sri Kishori Lai Sharma intimated to the Rent Control and Eviction Officer, Jhansi, that he will be vacating the portion in his occupation on 17.06.1971. However, no notice of this fact was given to the landlord (the Petitioner). Ghanshyam Dass Richariya, Respondent No. 1, who was a clerk of Sri Kishori Lai Sharma, Advocate, the out-going tenant, made an application for the allotment of the said portion. A report from the Rent Control Inspector was obtained without any knowledge to the Petitioner and the portion in dispute was allotted to Respondent No. 1 vide Order dated 15.07.1971. Pursuant to the allotment order the Respondent No. 1 obtained possession of the portion in dispute. On coming to know about the said allotment order the Petitioner filed an application before the Rent Control and Eviction Officer, Jhansi, for the cancellation of the allotment order on the ground that it had been obtained by fraud and misrepresentation. The Petitioner also prayed for release of the disputed portion on the ground of personal need to settle his son Dr. Dhirendra Kumar. During the tendency of the said proceedings before the Rent Control and Eviction Officer, the Respondent No. 1 moved an application before the District Magistrate, Jhansi, for the transfer of the case from the court of Rent Control and Eviction Officer to some other court. The District Magistrate, Jhansi, thereupon transferred the case to Km. Uma Verma, Sub-Divisional Officer, Moth, Jhansi, who was also the Prescribed Authority. The Prescribed Authority, Respondent No. 4, maintained the order of allotment in favor of Respondent No. 1, and rejected the application for release made by the Petitioner. The District Magistrate, Jhansi, thereupon transferred the case to Km. Uma Verma, Sub-Divisional Officer, Moth, Jhansi, who was also the Prescribed Authority. The Prescribed Authority, Respondent No. 4, maintained the order of allotment in favor of Respondent No. 1, and rejected the application for release made by the Petitioner. Aggrieved by the aforesaid order of the Prescribed Authority the Petitioner filed an appeal before the District Judge, Jhansi, which was transferred for disposal to the court of Sri B.N. Srivastava, 1st Additional District Judge, Jhansi. The appeal was allowed and the allotment Order dated 15.07.1971 passed in favor of Respondent No. 1 was set aside and the matter as regards consideration of the release application was remanded to the Prescribed Authority vide judgment and Order dated 20.05.1975. Thereupon Respondent No. 1 filed Civil Misc. Writ No. 9749 of 1975 in this Court against the Order dated 20.05.1975. Along with the petition a stay application was also filed but the same was rejected by this Court on 06.05.1976. The Rent Control and Eviction Officer after the case was remanded by the 1st Additional District Judge, Jhansi, released the disputed portion in favor of the Petitioner vide Order dated 21.04.1976 After the remand the Rent Control and Eviction Officer was fully competent to decide the release application of the Petitioner u/s 16oftheAct. Under that Section it is the District Magistrate or an officer authorized by him who can order release of any accommodation. While remanding the case for consideration of the release application the District Judge could not authorize the Prescribed Authority to decide the same as such power lay with the District Magistrate alone u/s 16(2) of the Act. It may also be mentioned here that ultimately the writ petition filed by Respondent No. 1 was dismissed by this Court on 03.05.1979. The Respondent No. 1 being aggrieved by the Order dated 21.04.1976 passed by the Rent Control and Eviction Officer releasing the portion in dispute in favor of the Petitioner preferred a revision to the court of the District Judge, Jhansi, which was numbered as Civil Revision No. 41 of 1976. By Order dated 06.09.1980 the Respondent No. 3, 1st Addl. District Judge, Jhansi, set aside the Order dated 21.04.1976 passed by the Rent Control and Eviction Officer releasing the disputed portion in favour of the Petitioner. By Order dated 06.09.1980 the Respondent No. 3, 1st Addl. District Judge, Jhansi, set aside the Order dated 21.04.1976 passed by the Rent Control and Eviction Officer releasing the disputed portion in favour of the Petitioner. The case was again remanded to the Prescribed Authority for disposal according to law and in the light of the observations given by the 1st Addl. District Judge, Jhansi, in his judgment and Order dated 20.05.1975. The instant petition has been filed against the impugned Order dated 06.09.1980 for quashing the same. 3. No counter-affidavit has been filed. Learned Counsel for the Petitioner has been heard at length. The case of the Petitioner is that Respondent No. 3, the 1st Additional District Judge, Jhansi, committed an error of law in failing to consider that Km. Uma "Verma, the Prescribed Authority, was specially authorized by the District Magistrate, Jhansi, to consider the question of release as well as the legality of the allotment order. The 1st Additional District Judge, Sri B.N. Srivastava, after canceling the allotment order had remanded the case for disposing of the release application. The case was rightly heard by the Rent Control and Eviction Officer who was the competent authority to dispose of the release application as enjoined u/s 16 of the Act and it cannot be said that the Rent Control and Eviction Officer acted without jurisdiction and the view taken by Respondent No. 3 that the release application ought to have been disposed of by the Prescribed Authority is manifestly erroneous and against the provisions of law. Further such a revision as contemplated by Section 18 of the Act was not maintainable as the unauthorized occupant, i.e. Respondent No. 1, was not a person 'aggrieved' within the meaning of the Act. 4. The controversy in a narrow compass is whether Respondent No. 1 whose allotment order had been cancelled by Sri B.N. Srivastava, 1st Additional District Judge, Jhansi, was a person aggrieved to have the right to prefer a revision against the Order dated 21.04.1976 passed by the Rent Control and Eviction Officer. 5. Before proceeding to judge the merit of- the contention it is necessary to extract from the Act the definition given to the " District Magistrate, " which apparently includes the Rent Control and Eviction Officer, as well as the " Prescribed Authority ". 5. Before proceeding to judge the merit of- the contention it is necessary to extract from the Act the definition given to the " District Magistrate, " which apparently includes the Rent Control and Eviction Officer, as well as the " Prescribed Authority ". 3 (c) " District Magistrate " includes an officer authorized by the District Magistrate to exercise, perform and discharge all or any of his powers, functions and duties under this Act, and different officers may be so authorized in respect of different areas or cases or class, and the District Magistrate may recall any case from any such officer and either dispose of it himself or transfer it to any other such officer for disposal: (e) " Prescribed Authority ", means a Civil Judicial Officer or Judicial Magistrate authorized by the District Judge to exercise, peats and discharge all or any of the powers, functions and duties of the Prescribed Authority under this Act, and different such officers may be so authorized in respect of different areas or cases or classes of cases, and the District Judge may recall any case from any such officer and may transfer it for disposal to any other such officer; ". 6. Initially, it is not disputed, that the Respondent No. 1 preferred an application for the allotment of the accommodation in dispute before the Rent Control and Eviction Officer but at the instance of Respondent No. 1 himself the case for cancellation of the allotment order as well as the release application were transferred by an order of the District Magistrate to Km. Uma Verma, S.D.O. Moth, Jhansi, who was at the relevant time designated as the Prescribed Authority. It was at the instance of Respondent No. 1 that the case was transferred from the file of the Rent Control and Eviction Officer to that of the Prescribed Authority. However, after the allotment Order dated 15.07.1971 was cancelled by the 1st Additional District Judge, Jhansi, vide his Order dated 20.05.1975, the case for considering the release application was remanded. It was at the instance of Respondent No. 1 that the case was transferred from the file of the Rent Control and Eviction Officer to that of the Prescribed Authority. However, after the allotment Order dated 15.07.1971 was cancelled by the 1st Additional District Judge, Jhansi, vide his Order dated 20.05.1975, the case for considering the release application was remanded. No doubt after allowing the appeal the appellate court sent back the case for a consideration of the release application to the Prescribed Authority but it is also manifest that the Prescribed Authority who was allowed initially at the instance of the District Magistrate to hear the application for release and the matter of cancellation of the allotment order could not hear the case again without any authorization by the District Magistrate and it could only be decided by the Rent Control and Eviction Officer to whom the powers had been delegated by the District Magistrate. Such powers at the instance of the District Judge could not be delegated. The authorization could only be done by the District Magistrate and accordingly the matter was rightly heard by the Rent Control and Eviction Officer who was competent to do so. The Petitioner and the contesting Respondent No. 1 were both heard by the Rent Control and Eviction Officer and it was thereafter that the accommodation in dispute was released in favor of the Petitioner. It may be significant to mention here that no objection as to the competence of the Rent Control and Eviction Officer of as regards the assumption of jurisdiction by him were ever made by Respondent No. 1. The Respondent No. 1 thus succumbed to the jurisdiction of Rent Control and Eviction Officer and had acquiesced into it. It was only after the passing of the Order dated 21.04.1976 releasing the accommodation in dispute in favor of the Petitioner that a grievance was made by Respondent No. 1 by filing a revision before the District Judge as provided u/s 18 of the Act. Section 18 of the Act provides as under: 18. It was only after the passing of the Order dated 21.04.1976 releasing the accommodation in dispute in favor of the Petitioner that a grievance was made by Respondent No. 1 by filing a revision before the District Judge as provided u/s 18 of the Act. Section 18 of the Act provides as under: 18. Appeal against order of allotment or release-(1) (1) No appeal shall lie from any Order Under Section16 or Section19, whether made before or after the commencement of this section, but any person aggrieved by a final order under any of the said sections, may, within fifteen days from the date of such order, prefer a revision to the District Judge on any one or more of the following grounds, namely-that the District Magistrate has exercised a jurisdiction not vested in him by law ; (a) that the District Magistrate has failed to exercise jurisdiction vested in him by law ; (b) that the District Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity. (2) The revising authority may confirm or rescind the final order made Under Sub-section (1) or may remand the case to the District Magistrate for rehearing, and pending the revision, may stay the operation of such order on such terms, if any, as it thinks fit. Explanation.-The power to rescinded the final order under this Sub-section shall not include the power to pass an allotment order or to direct the passing of an allotment order in favour of a person different from the allotted mentioned in the order under revision. (3) Where an Order Under Section16 or Section 19 is rescinded, the District Magistrate shall, on an application being made to him on that behalf, place the parties back in the position which they would have occupied, but for such order or such part thereof as has been rescinded, and may for tha1 purpose use or cause to be used such force as may be necessary. 7 It has now to be seen whether in view of the above provision of law Respondent No. 1 can be deemed to be a person 'aggrieved'. Admittedly the revision was filed against the Order dated 21.04.1976 passed by the Rent Control and Eviction Officer allowing the release application of the Petitioner and releasing the accommodation in question to cater the requirements of the son of the Petitioner Dr. Admittedly the revision was filed against the Order dated 21.04.1976 passed by the Rent Control and Eviction Officer allowing the release application of the Petitioner and releasing the accommodation in question to cater the requirements of the son of the Petitioner Dr. Dhirendra Kumar for opening an indoor Patients Hospital. It has to be seen whether any person can participate in the proceedings pending for the consideration of the release application or may raise any objection thereto. Section 16(1)(b) of the Act provides: 16. Allotment and release of vacant building-(1) Subject to the provisions of the Act, the District Magistrate may by Order-(b) release the whole or any part of such building, or any land appurtenant thereto, in favor of the landlord (to be called a release order). 8. It is thus clear that the matter of release is a matter concerning the District Magistrate alone vis-r-vis the landlord. Any other person has not been given any such right either to participate in such proceedings or to file objections against it Earlier the U.P. (Temporary) Control of Rent and Eviction Act, 1947, though it was extended from time to time was made as a temporary measure, was ultimately replaced by UP. Act xIII of 1972. In the old Act identical provisions corresponding to Section16(1) may be found as below in Rule 6 as framed u/s 17 of the Act: Rule 6 Occupation by landlord.-When the District Magistrate is satisfied that an accommodation, which has fallen vacant or is likely to fall vacant is bona fide needed by the landlord for his own personal occupation, the District Magistrate may permit the landlord to occupy it himself. 9. In the case of Parmeshwar Dayal v. Addl. Commissioner 1963 All WR 220 it was ruled by a Full Bench of this Court that the need of the landlord is not to be balanced against other claimants and the matter would be deemed to be interest between the landlord and the District Magistrate. In the case of Ram Surat Singh v. Rent Control and Eviction Officer, Allahabad 1964 AWR 177 another Full Bench of this Court reiterated the view taken in the case of Permeshwar Dayal (Supra). For determination of the need of the landlord the district Magistrate has to be satisfied before releasing the accommodation in favor of the landlord that it is bona fide and genuine. For determination of the need of the landlord the district Magistrate has to be satisfied before releasing the accommodation in favor of the landlord that it is bona fide and genuine. No other person has any right of raising an objection against the release application or against the order passed by the District Magistrate releasing the accommodation in favor of the landlord. Similar view was expressed in the following cases: I. Yogendra Tiwari v. District Judge, Gorakhpur 1984 AWC 369 (SC) 2. Smt. Brij Kumar v. Ilnd Additional District Judge Muzafiarnagar l980 ARC 125. 3. Ashok Kumar Misra and Another Vs. District Judge and Others, (1979) AWC 550 . 4. Sri Kant Dwivedi v. 3rd Additional District Judge, Hardoi 1981 ARC 49. 10. The Respondent No. 1 in view of the law laid down in Sri Kant Dwivedi's case (Supra) had thus no right to maintain the revision. He was not an ' aggrieved ' person within the meaning of the Act. After the cancellation of the allotment order his possession became unauthorized. No doubt he entered into possession on the basis of an allotment order but after its cancellation the said order became non-est. in law. Respondent No. 1 is holding the possession in an unauthorized manner and is liable to be evicted. Such an intention may also be found in Section 13 of the Act which is as under: 13. Restrictions on occupation of building without allotment or release.- Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release u/s 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorized occupant of such building or part. The status of Respondent No. 1 after the cancellation of the allotment order is that of an unauthorized occupant. Further a void order as has been found in the instant case by the 1st Additional District Judge while canceling the same does not confer any right upon Respondent No. 1-Section Moin Uddin Vs. Dy. Director of Consolidation, (1979) AWC 94 . Further a void order as has been found in the instant case by the 1st Additional District Judge while canceling the same does not confer any right upon Respondent No. 1-Section Moin Uddin Vs. Dy. Director of Consolidation, (1979) AWC 94 . The Respondent No. 1 though an unauthorized occupant holding possession illegally has denied the Petitioner the fruits of the release order for a period of about 10 years and is thus liable to be evicted according to law. The revision filed by Respondent No. 1 before the District Judge was not maintainable and the judgment and order passed by the 1st Additional District Judge, Jhansi, dated 06.09.1980 deserves to be quashed. It will be wholly competent for the Petitioner to seek the eviction of Respondent No. 1 who is an unauthorized occupant without any loss of time as contemplated by Section 18 (3). It might also be observed that the Respondent No. 3 fell in error in setting aside the Order dated 21.04.1976 passed by the Rent Control and Eviction Officer. The Order dated 21.04.1976 releasing the accommodation in dispute in favor of the Petitioner deserves to be restored. 11. In the result the petition succeeds and is hereby allowed with costs and the Order dated 06.09.1980 passed by Respondent No. 3 is quashed. The Order dated 21.04.1976 passed by the Rent Control and Eviction Officer releasing the accommodation in dispute in favour of the Petitioner is restored.