Sushila Dwivedi v. Ashok Kumar Sahai — 1989 DIGILAW 793 (ALL)

Judgment: B.L.Loomba, J. 1. Controversy in this writ petition rellates to (southern) half portion of House no. B-5 Sector A Mahanagar, Lucknow. Respondent Ashok Kumar Sahai claimed ownership of this house by inheritance from his mother. One S. K. Misra was the tenant of this disputed portion of the house. Smt. Asha Misra wife of S. K. Misra built their house in another section of Mahanagar. Respondent Ashok Kumar Sahai moved application under Section 16 (1) (b) of U. P. Act XIII of 72 on 6-11-1981 seeking release of this accommodation on the ground that this was his only house at Lucknow or elsewhere and it was needed by him for use and occupation by him and his wife and that it will not be let out to any one The need was stated to be bonafide, genuine and pressing. Smt Sushila Dwivedi, the petitioner in this writ petition moved an application before the Rent Control Officer stating about its vacancy by S. K. Misra and praying for allotment thereof in her favour. This application for allotment and Ashok Kumar Sahai's application for release were taken up together by Additional District Magistrate (Civil Supplies) Lucknow and were disposed of by his judgment and order dated 12-10-1983 (Annexure-4). Ashok Kumar Sahai at that time was posted as Wing Commaner Air Force at Agra. The learned Additional District Magistrate (Civil Supplies) rejected the release application on the ground that the landlord was posted at-Agra and his family was also residing with him,' and as such this accommodation was not bonafide needed by him. Release was held unjustified on another ground also. The northern half portion of the house was found to have been let out to the State Government for N. C. C. Office since 1979 and it was observed that if the landlord really needed any accommodation at Lucknow he would not have extended the lease in favour of U. P. Government for N. C. C. Office. Another factor referred to was that the northern portion was let out to the N. C. C. Department without involving the Rent Control Authorities. Another factor referred to was that the northern portion was let out to the N. C. C. Department without involving the Rent Control Authorities. The contention raised on behalf of the landlord that prospective allottee had no say in the matter of release of an accommodation in favour of the landlord was repelled with the observation that the matter of release is no doubt between landlord and the State but since the court does not have any agency to dig out reality and the same is sought to be brought on record by prospective allottee and it is help ful in the lawful and just decision of the case it should not be shut out. The need of Smt. Sushila Dwivedi for allotment of the accommodation was found to be genuine and pressing. Accordingly, the release application was rejected and this accommodation was allotted in favour of Smt. v Sushila Dwivedi, petitioner. 2. The order of the Additional District Magistrate (Civil Supplies) dated 12-10-1983 was challenged in revision under Section 18 of the Act before the District Judge, Lucknow on the ground that the landlord being Squadron Leader in the Air Force is an Indian Soldier and is entitled to have the premises released for residence of his family and that the Additional District Magistrate (Civil Supplies) failed to consider this aspect of the matter and acted illegally and with material irregularity in accepting the affidavit of opposite Smt. Sushila Dwivedi behind the back of the landlord. This revision was opposed by the present petitioner. Subsequent development intervened; meanwhile Ashok Kumar Sahai, landlord was granted premature retirement as Squadron Leader in the Air Force on 31-7-1987. He moved application for release of the northern half portion of the house against the State of U. P. in the N. C. C. Department under Section 21 of the Act. This release application (P. A. Case No. 21 of 87) was allowed on the basis of compromise on 30-3-1988. Consequently, the landlord took over possession of the northern half portion of the house and started living therein with his family. This fact was brought on record in the revision proceedings by the present petitioner as a subsequent development in order to make out that the landlord having already secured possession over identical portion on the northern side of the house no more needed the accommodation in question. This fact was brought on record in the revision proceedings by the present petitioner as a subsequent development in order to make out that the landlord having already secured possession over identical portion on the northern side of the house no more needed the accommodation in question. Earlier the fact of premature retirement of landlord was brought forth by way of amendment in the revision application. Two small points of controversy which appear to have been raised in the proceedings may require mention. One of them being that Ashok Kumar Sahai was not the landlord of the accommodation and his wife was in fact the landlord because she h;id been dealing with this property and had agreed to extend the term of the lease in favour of N. C. C- Department and the second one related to the challenge to the legality of the amendment sought and allowed in the revision application. The first point did not find favour with the Additional District Magistrate or the revisional Court because it was found that Ashok Kumar Sahai was the owner landlord and it is in his favour that rent was deposited by the present petitioner in court under Section 30 of the said Act. The second point was also not sustained, and rightly so because of the legal position being well settled that subsequent developments on the question of genuine and bona fide need of the landlord for release can and ought on record for proper and just decision of the case. Both these points merit, no further consideration. 3. Revision of the landlord was allowed by 1st Additional District Judge, Lucknow by his judgment and order dated 19-12-1988 (Annexure-1) on the basis of Full Bench decision of this Court in Talib Husain v. Additional District Judge, Nainital, 1985 ARC 1001, it was held that the prospective allottee or a outgoing tenant has no right to file objection and contest the release proceedings under Section 16 of the Act and the matter of release is essentially between the landlord and the court. Subsequent developments having bearing on the matter was taken note of, namely, that the landlord had in the meanwhile been granted compulsory retirement from 31-7-1987 his need for the entire house was genuine and bona fide. Subsequent developments having bearing on the matter was taken note of, namely, that the landlord had in the meanwhile been granted compulsory retirement from 31-7-1987 his need for the entire house was genuine and bona fide. The fact that the wife of the landlord had earlier given her consent for lease in favour of the N. C. C. Department in respect of northern portion was held to inconsequential. A glaring mistake was said to have been committed by the Additional District Magistrate in considering the affidavit filed by petitioner Smt. Sushila Dwivedi allottee. In this way, the revision application was allowed. The release application of the landlord was allowed and the order of allotment in favour of petitioner Smt. Sushila Dwivedi was set aside. 4. The allottee occupant Smt. Sushila Dwivedi being aggrieved by the order of the revisional authority dated 19-12-1988 filed this writ petition. The challenge is raised on the ground that the jurisdiction to allow or reject ' the release application solely vests with the District Magistrate and the matter of allotment of a vacant accommodation also falls within the jurisdiction and authority of the District Magistrate and, as such the order of the revisional court is without jurisdiction. It has been pleaded that the revisional Court had the only alternate to have remanded the matter to the District Magistrate instead of proceeding to decide it himself. Another submission raised is that the revisional Court, failed to consider the most material development to the effect that the landlord had already got possession of the northern half of the house and was living there with his family comfortably. The writ petition contains an averment that the landlord converted the front verandah and the drawing room into two.. shops and has started using the same for running a business in the name and style of 'Rajasthan Silk Emporium.' Another fact alleged is that the landlord had made some further constructions on the back-yard of the house in the form of two rooms with independent amenities. shops and has started using the same for running a business in the name and style of 'Rajasthan Silk Emporium.' Another fact alleged is that the landlord had made some further constructions on the back-yard of the house in the form of two rooms with independent amenities. In his counter affidavit filed in this writ petition, the respondent landlord has accepted the fact that he has converted the verandah into shop and has started a business in the name and style 'Kanjivaram Silk and Handicrafts.' This, it is pleaded, has been done with a view to rehabilitate himself in the Civil life after having been granted compulsory retirement from the Air Force. Since other part of the allegation contained in para 17 of the writ petition has not been expressly controverted it has to be accepted that the landlord has also made some more constructions in the back-yard of the house. Another thing accepted in reply to para 21 of the writ petition is that a part of the lawn of the house has been converted into a stall by erecting tin shed and therein GoGo Ice Cream is being sold by the landlord. This is also sought to be justified saying that he is entitled to rehabilitate himself and earn his livlihood after retirement. 5. In the counter-affidavit it has been pleaded that the entire house provides only two bed rooms accommodation and it is wholly insufficient for the needs of his family which consists of landlord, his wife, young son aged about 20 years and two daughters aged about 17 and 15 years. The Additionally constructed accommodation being used for commercial purposes is said to be unavailable for residential use of the family. 6. The two main points arising for consideration in this writ petition are; whether a prospective allottee has right to object to the release application of the landlord under Section 16 of the Act and be a participative party in the proceedings to assist the Court in providing relevant material which 1 may enable the Court to right fully assess the question of genuineness arid bona fide need of the landlord for release and the second relates to the scope of jurisdiction of the revisional court to reverse the finding recorded by the Prescribed Authority on the factual aspect of the bonafide and genuine need of the landlord for release. The first point has been decided by the revisional court on the basis of the Full Bench Decision of this Court in Talib Husain's case (supra)............. As would appear on perusal of this decision it was held in clear and categorical terms that a prospective allottee has no right to file an objection and contest the application for release made by the landlord for a building or a part thereof even after the deletion of the original Rule 13 (4) of the Rules framed under the said Act. It was observed that a prospective allottee has no right or claim against the landlord nor any interest in the accommodation in dispute. As such, he has no right to be heard in opposition to an application for release on the principle of Audi Alteram Partem. The objection of the prospective allottee is liable to be rejected not on the merits of her claim but on the ground that the same is not entertain able because the accommodation is not available for allotment. If the District Magistrate is satisfied that the accommodation is.bonafide required by the landlord, it goes out of the pool of allotment. A submission, it appears, was made before the Full Bench that if the prospective allottee does not get a right to contest release application, the landlord may collude with the Rent Control Authorities and obtain an order in his favour on false allegation. This submission was rejected with the observation that "we are not impressed by this argument. We cannot assume that the Rent Control Authorities will act dishonestly. Nor can a statute be interpreted on such assumptions. Further, a complete answer to this submission is provided by Section 19 of the Act which lays down that an accommodation can be re-allotted in the event of landlord's abusing the release order." 7. Learned counsel for the petitioner has not been able to refer to any decision on this point after the pronouncement of the Full Bench. There is, however, an order of Honourable Supreme Court in Civil Appeal No. 5103 of 1985 decided on 25-11-1985 G. K. Pillai v. Addl. District Judge IV Lucknow, 1986 Vol. 4 LCD 86. Learned counsel for the petitioner has not been able to refer to any decision on this point after the pronouncement of the Full Bench. There is, however, an order of Honourable Supreme Court in Civil Appeal No. 5103 of 1985 decided on 25-11-1985 G. K. Pillai v. Addl. District Judge IV Lucknow, 1986 Vol. 4 LCD 86. This order is reproduced below i- "After hearing learned counsel for the parties, we feel that the following order will meet the ends of justice i "In view of the peculiar facts of this case, the impugned Order of the High Court dated April 18, 1985 as also the ex parte order of release passed in favour of the landlord are set aside and the matter is remanded back to the Prescribed Authority to dispose of the questions involved, after giving notice to and hearing both the parties in accordance with law. The Prescribed Authority will dispose of the matter as expeditiously as possible, preferably within a period of two months from receipt of this order. In the meantime, the appellant will contine in possession of the suit premises." Whether the order of Honourable Supreme Court in G. K. Pillai's case has the effect of overruling the Full Bench decision in Talib Husain's case. It is submitted by the learned counsel for the petitioner that by implication the Full Bench decision of this Court stands overruled. Obviously, it is difficult to accept this contention. Nowhere, it appears from the contents of the order of the Honourable Supreme Court that Full Bench Decision of this Court dated 3-10-1985 was brought to the notice of their Lordships of the Supreme Court. Further more, in the order there is no discussion on the points raised discussed and decided by Full Bench. As is mentioned in the order of the Supreme Court itself it was passed "in view of the peculiar facts of this case," and it has as such to be taken that right of hearing in favour of the prospective allottee was granted in the back-ground of the peculiar facts of the particular case and the order cannot be taken to have overruled the principle of law laid down in the Full Bench decision. LEARNED counsel for the petitioner has canvassed, the reasoning underlying the order of the Prescribed Authority in permitting the material placed by the prospective allottee to be considered. LEARNED counsel for the petitioner has canvassed, the reasoning underlying the order of the Prescribed Authority in permitting the material placed by the prospective allottee to be considered. Speaking for myself I see some merit in jthe process of reasoning and from practical view point, the remedy provided in Section 19 of the Act is hardly of any effective value and consequence. In most cases the allottee loses interest after the release and the time limit within which application can be moved under Section 19 makes it unrealistic and hardly of any practical utility. However, I am bound . by the Full Bench decision and it has to be held that the prospective allottee has no right of hearing and participation in the release proceedings. 8. Coming to the second point relating to the scope of jurisdiction of the revisional court Section 18 of the Act empowers the revisional court to confirm or rescind the final order or may remand the case to the Prescribed Authority for re-hearing, on any of the grounds that the Prescribed Authority has exercised jurisdiction not vested in him by law, that he has failed to exercise jurisdiction vested in him by law or has acted in the exercise of his jurisdiction illegally or with material irregularity. What amounts to exercise of jurisdiction illegally or with material irregularity has been subjected to interpretation in various decisions of this Court. Learned counsel for the petitioner argues that the words used in sub-section (2) are confirm or rescind the order and not to reverse the order. The explanation to sub-section (2) lays down that the power to rescind the final order 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 allottee mentioned in the order under revision. The restriction referred to in the explanation is relating to the power to pass an allotment order. No such restrictive provision is contained in the explanation regarding the power to release. Omission in this regard appears material. The restriction referred to in the explanation is relating to the power to pass an allotment order. No such restrictive provision is contained in the explanation regarding the power to release. Omission in this regard appears material. It is well settled position of law that subsequent development and new facts can and ought to be considered by the appellate court under Section 22 of the Act and for that purpose by the revisional court under Section 18 of the Act, This appears necessary as subsequent development directly effect the plea of existence or non-existence of the genuineness of need of the landlord for release. Further, if some material is not considered or is wrongly relied, it is a case of failure to exercise jurisdiction. The revisional court would, thus, be entitled to interfere. Exercise of power to rescind implies the right to allow release in suitable cases and it is not necessary in every such case to direct remand. It is obvious that remand involves delay and expense to the authorities and it would be in the advancement of cause of justice that the revisional court have the power to allow release when justified on facts made out clearly and in law. Section 19 of the Act makes the position further clear indicating about the release allowed in revision under Section 18. One decision in support of this view I could lay hand is in writ petition No. 2334 of 1978 Lokesh Kumar Dwivedi Additional District Judge, Lucknow, decided on October 30. 1979. Full judgment, it appears, has not been reported. However, this decision is reported in Short Notes of Cases at Serial No. 57 in 1981 ARC Short Notes of Cases. It was held clearly that where a revision was filed by the landlord against an order refusing to release the disputed accommodation and allot the same to some other person, the revising authority can pass an order setting aside allotment order and releasing the accommodation in landlord's favour. It was observed that it is apparent from the fact that Section 19 of the Act speaks of a release order being passed in revision under Section 18 of the Act. 9. Yet another aspect requires consideration. Subsequent development which have taken place after decision of the revisional court have been alleged in paragraph 17 of the writ petition. It was observed that it is apparent from the fact that Section 19 of the Act speaks of a release order being passed in revision under Section 18 of the Act. 9. Yet another aspect requires consideration. Subsequent development which have taken place after decision of the revisional court have been alleged in paragraph 17 of the writ petition. 1 herein it is alleged that the landlord has converted front verandah and so called drawing room into two shops and is doing business in the name and style of Rajasthan Silk Emporium. It is further stated that open passage was also converted in the form of a garage and the garage already existing is converted into a room and further that some constructions have been made in the form of two rooms in the backyard of the house with independent amenities besides the construction of servant quarters. This paragraph has been replied by the landlord in his counter-affidavit dated 20-2-1989, vide paragraph 17 the roof conversion of the verandah into the shop and using it for the business in the name of Kanjivaram Silk and Handicraft has been admitted. The other allegations have not been precisely answered and only thing stated is that the respondent has constructed some additional accommodation for fulfilling his requirements of accommodation according to his status. 10. Another material fact brought forth in the writ petition vide paragraph 13 is that the landlord got released the other half portion of the house vide order dated 30-3-1988. The grievance raised is that this material fact was suppressed and has not been considered by the revisional court. The fact that the other portion of the house has been released in favour of the revisionist is admitted. It is, however, stated that it was not required under law to inform the revisional court with regard to the release of this part of the accommodation though in reply to the petitioner's application this fact was admitted. In any case, from perusal of the judgment of the re-visional court, it appears that this development subsequent to the order of Prescribed Authority did not receive consideration of the revisional court. Question before me is whether to consider the subsequent developments and dispose off the writ petition or remand the matter to the revisional Court. In any case, from perusal of the judgment of the re-visional court, it appears that this development subsequent to the order of Prescribed Authority did not receive consideration of the revisional court. Question before me is whether to consider the subsequent developments and dispose off the writ petition or remand the matter to the revisional Court. Upon consideration of the factual position as it stands, I think, it would be expedient and appropriate to direct remand of the matter to the revisional court particularly when the precise factual position as to the additional constructions raised in the house is not clear. The matter to be considered by the revisional court which will go into the details of the subsequent developments namely, the release of the other portion of the house and new constructions raised in the house and in that context 'to assess the need of the landlord for the disputed accommodation. The revisional Court will be free to admit additional evidence including issue of commission and make inspection which is permissible under Section 34 of the Act. It is, however, made clear that the petitioner allottee will have no right of participation on the question of release of the accommodation. 11. For what is stated above, the writ petition is allowed and the impugned order of the revisional court dated 29-12-1988 is set aside. The matter is remanded to the District Judge for decision of the revision afresh either by himself or by any Additional District Judge according to law and keeping in view the observations contained in this judgment. Petition allowed.