BECHAN PRASAD v. XITH A D J VARANASI — 1994 DIGILAW 212 (ALL)

A. B. SRIVASTAVA, J. Affidavit having been exchanged between the parties, the petition is being finally disposed of after hearing the learned counsel for both sides in accordance with rules of the Court. 2. The petitioner No. 1 Bechan Prasad is the landlord of House No. CK-39/8 Dalmandi, Varanasi, Banarasi Lal and Mangal Prasad, the petitioner Nos. 2 and 3 are occupants of the 1st and IInd floor portion of the said premises. One Smt. Sita Devi a dancing girl, was tenant of the premises in question (1st and 2nd floor ). According to the petitioners she was forcibly ousted by the police in their drive to evict dancing girls from the said locality. On the report of the police, the R. C. & E. O. without following due process of law, allotted the said premises on 17-5-1972 to the respondent No. 3. However, the landlord again put back Sita Devi in occupation of the said premises. 3. Subsequently application was moved by the landlord and Sita Devi to cancel the said allotment order, whereas the respondent No. 3 moved an application to the R. C. & E. O. to restore the possession to him. R. C. & E. O. by his order dated 29-9-1972 declined to cancel the allotment order and also rejected the prayer of respondent No. 3 for restoration of possession on the ground that once the allottee came into possession of the allotted premises the allotment order stood exhausted and against subsequent dispossession, the petitioner could not approach R. C. & E. O. rather had his remedy before the Civil Court. In appeal the District Judge declined to interfere. 4. The respondent No. 3 thereupon filed Civil Suit No. 375 of 1973 for possession before the Munsif Varanasi. The learned Munsif dismissed the suit on 21-12-1981 with a finding that the respondent No. 3 has failed to prove that he took possession in pursuance of the allotment order. On 1-2-1982 the respondent No. 3 again moved R. C. & E. O. for eviction of Smt. Seeta Devi. The R. C. & E. O. by order dated 15-6-1988 rejected the said application and directed the record to be consigned. 5. The petitioner Nos. 2 arid 3 who allege to have been residing with Smt. Seeta Devi in her life-time, claim to have, inherited the tenancy after her death on 20-2-1983. The R. C. & E. O. by order dated 15-6-1988 rejected the said application and directed the record to be consigned. 5. The petitioner Nos. 2 arid 3 who allege to have been residing with Smt. Seeta Devi in her life-time, claim to have, inherited the tenancy after her death on 20-2-1983. The respondent No. 3 appears to have moved another application under S. 16 (4) of Act 13 of 1972 read with Section 151, C. P. C. for delivery of possession. The same was allowed by R. C. & E. O. vide order dated 26-7-1988 and notice in Form C was directed to be issued, The revision filed by the petitioners before the District Judge was dismissed by his order dated 22-9-1994. These orders of R. C. & E. O. and the revisional court, are sought to be quashed by means of writ of certiorari. 6. The petitioners during the course of argument have sought to chal lenge the validity of the allotment order dated 17-5-1992, although no such relief to that effect has been claimed in the prayer of the writ petition. On facts and in law, however, there does not appear any illegality in the order of allotment which was passed as far back as 22 years ago and was affirmed by the appellate court and was not challenged by means of any writ petition. 7. The moot question in this writ petition however, is not as much the validity of the allotment order dated 17-5-1972, as the steps now being taken by the R. C. & E. O. to enforce the same. 8. The contention in this regard of the petitioners is that on the own showing of the respondent No. 3 he had taken possession in pursuance of the allotment order. There thus remains no cause or occasion to execute the said order. In case the respondent No. 3 has been unauthorisedly evicted by the petitioners, thereafter, his remedy did not lie in getting executed an order of allotment which had been executed and consequently exhausted in that aspect. There thus remains no cause or occasion to execute the said order. In case the respondent No. 3 has been unauthorisedly evicted by the petitioners, thereafter, his remedy did not lie in getting executed an order of allotment which had been executed and consequently exhausted in that aspect. The plea on behalf of the respondent No. 3 on the other hand is that he is entitled to get the allotment order enforced under the provisions of Section 16 (4) of Act 13 of 1970 and further it is contended that learned Munsif having returned a finding to the effect that the respondent No. 3 has failed to prove his entry into possession over the premises in question, the R. C. & E. O. has full jurisdiction to issue notice in Form C of the rules, to effect delivery of possession by dispossessing the petitioners Nos. 2 and 3. it is also contended that the petitioner Nos. 2 and 3 being unauthorised occupants they have no locus standi to object to the process issued by the R. C. & E. O. 9. As far as the question of locus standi is concerned. True it is that the petitioner Nos. 2 and 3 are not tenants and also not heirs of the outgoing tenant Sita Devi and as such may be liable to be evicted but- they have a right to challenge the impugned order on the ground of lack of jurisdiction. 10. Now as far as the impugned orders under challenge in this writ petition are concerned, from the facts stated above it would be clear that it has been the stand of respondent No. 3 from the very beginning that he had got possession over the premises in pursuance of the allotment order dated 17-5- 1972 and that he was subsequently ousted by the petitioners. 11. It was under these circumstances that R. C. & E. O. and rightly so, rejected the application of the respondent No. 3 for redelivery of possession and directed him to approach the Civil Court. The said order of the R. C. & E. O. was admittedly confirmed by the District Judge and was not challenged in 4ny higher forum. The respondent No. 3 in fact, filed a suit for recovery of Possession which was dismissed by the Munsif. Here again the said order was not challenged by way of appeal. The said order of the R. C. & E. O. was admittedly confirmed by the District Judge and was not challenged in 4ny higher forum. The respondent No. 3 in fact, filed a suit for recovery of Possession which was dismissed by the Munsif. Here again the said order was not challenged by way of appeal. Yet another application moved there after to the R. C. & E. O. was rejected on similar grounds and curiously enough at this stage recourse to Section 16 (4) of the Act was sought to be taken and was allowed by the R. C. & E. O. and the District Judge, ignoring the concluded finding rendered earlier by the R. C. & E. O. as well as appellate court, as also the own stand of the respondent No. 3, to the effect that he had entered into possession after allotment and was subsequently dispossessed. 12. Perusal of Section 16 (4) would go to show that it was also not attracted. It applies where the allottee or the landlord has not been able to obtain possession of the building allotted or released. In the instant case possession having already been obtained according to the own version of the respondent No. 3, it was too late in the day to make an application under Section 16 (4 ). The R. C. & E. O. thus had no jurisdiction to issue notices in Form C for delivery of possession to the respondent No. 3. 13. It has been contended on behalf of the respondent that in a situa tion where civil suit has been dismissed and the R. C. & E. O. is held not to have the jurisdiction to re-execute the allotment order, it would amount to perpetuating the occupation of the unauthorised occupants, the petitioners Nos. 2 and 3. There is however. no occasion of perpetuating unauthorised possession, because the very fact of possession of the petitioners Nos. 2 and 3 being unauthorised, will lead to a conclusion about the building being vacant in the eyes of law, and available for necessary action under Section 16 of the Act, in which it may be open even to the respondent No. 3 to pursue his claim for allotment or re-allotment in accordance with law. 14. 2 and 3 being unauthorised, will lead to a conclusion about the building being vacant in the eyes of law, and available for necessary action under Section 16 of the Act, in which it may be open even to the respondent No. 3 to pursue his claim for allotment or re-allotment in accordance with law. 14. On the facts and reasons stated above, therefore, the orders of the R. C. & E. O. and the District Judge impugned in this writ petition suffer from manifest error of law and error of jurisdiction and are liable to be quashed. 15. The writ petition is accordingly allowed. The impugned orders dated 26-7-1988, 28-10-1988 of the R. C. & E. O. and 22-9-1994 of the Addl. District Judge are hereby quashed, leaving it open to the R. C. & E. O. to proceed under Section 16 of Act 13 of 1972. The respondent No. 3 shall be eligible to pursue his claim for allotment or re-allotment on merits in accor dance with law in such proceedings. There is no order as to costs. Petition allowed. .