Mahipal Singh v. District Judge Allahabad — 1996 DIGILAW 446 (ALL)

Judgment : A. B. Srivastava, J. 1. The reliefs in the two writ petitions though apparently not similar, the questions involved being the same, these have been heard together at admission stage, and are being disposed of by a common order. 2. The dispute in these petitions relates to premises No. 5 Jawahar Lal Nehru Road, Allahabad, of which the petitioner was a tenant. Applications for allotment of the building in question being moved before the R. C. and E. O. on the ground of deemed vacancy under Section 12 (3) of Act No. 13 of 1972 (hereinafter referred to as the Act), on account of the petitioner-tenant having constructed another house, the R. C. and E. O. after necessary inquiry, by his order dated 29-2-1980 declared the building to be vacant. Subsequently, by his order dated 30-1-1981 the R. C. and E. O. allotted the building in favour of the respondent No. 3 under Section 16 of the Act. The petitioner thereupon filed a revision under Section 18 of the Act, being Rent Control Revision No. 85 of 1981, before the District Judge, Allahabad on various grounds, including non-existence of vacancy, lack of jurisdiction of the incumbent R. C. and E. O. to adjudicate the matter and wrong exercise of jurisdiction in making allotment in favour of the respondent. The District Judge by his order dated 6-5-1982 allowed the revision on the ground of lack of jurisdiction with Shri K. M. Pandey, the concerned R. C. and E. O., to decide the matter, and remanded the case to another Rent Control and Eviction Officer, named, Brijendra Singh, to consider and decide the question of allotment, after hearing the various applicants for allotment, in accordance with law. On a writ petition (No. 8576 of 1982) preferred by the respondent No; 3, this Court by its order dated 30-11-1994 quashed the order of the District Judge, holding that Shri K. M. Pandey, the then R. C. and E. O., who passed the order dated 30-1-1981, was duly appointed by. the District Magistrate under Section 3 (C) to exercise the powers under the Act ft was also held by this Court that as far as the declaration of vacancy by order dated 29-2-1980 of the R. C. and E. O. is concerned, the same not having been challenged by means of a writ petition, has become final. the District Magistrate under Section 3 (C) to exercise the powers under the Act ft was also held by this Court that as far as the declaration of vacancy by order dated 29-2-1980 of the R. C. and E. O. is concerned, the same not having been challenged by means of a writ petition, has become final. This Court accordingly, directed the District Judge to decide the revision on merits in accord ance with law. The petitioner filed a special Leave Petition before the Supreme Court against the order dated 30-11-1994 which was later withdrawn and was dis missed by the Supreme Court on 8-3-1995. 3. On a review application being preferred by the petitioner, for deleting the observations regarding the declaration of vacancy having become final, this Court by its order dated 28-11-1995, in view of the law laid down by the Supreme Court in Ganpat Roy and others v. Additional District Magistrate and others, reported in 1985 (2) Allahabad Rent Cases 73, declined the said review application. 4. The petitioner filed writ petition No. 371003 of 1995, in effect, containing the same prayer which was declined in the review proceedings, to the effect that the District Judge be commanded by a writ of mandamus to decide the Rent Revision No. 85 of 1981 in accordance with the law prevalent at the time of passing of the impugned order of the R. C. and E. O., ignoring the law subsequently declared by the apex Court in Ganpat Roy's case (supra ). While the Writ Petition No. 37003 of 1995 was so pending admission, the District Judge, Allahabad by his order dated 13-3-1996 heard and dismissed the Rent Control Revision No. 85 of 1981 and other connected Revisions, upholding the order of allotment dated 30-1-1981 in favour of the respondent No. 3. While the Writ Petition No. 37003 of 1995 was so pending admission, the District Judge, Allahabad by his order dated 13-3-1996 heard and dismissed the Rent Control Revision No. 85 of 1981 and other connected Revisions, upholding the order of allotment dated 30-1-1981 in favour of the respondent No. 3. The Writ Petition No. 9706 of 1996 is directed against the same, inter alia, on the ground of the declaration of vacancy dated 29-2-1980 being unsustainable on facts and in law, lack of authority in Shri K. M. Pandey, the R. C. and E. O. concerned, to decide the matters relating to the premises in question, the matter relating to the declaration of vacancy being not governed by the law laid down in Ganpat Roy's case (supra) in view of the earlier declaration of law by the apex Court in Trilok Singh and Company v. District Magistrate, Lucknow and others, A. I. R. 1976 S. C. 1988, and the impugned order of allotment being unsustainable. 5. The Court has considered the submissions made by learned counsel for both sides in the matter of these two writ petitions. It would be found that the entire controversy in these petitions is linked to the question of existence or otherwise of vacancy in respect of the premises in question, for in the absence of any vacancy there could be no question of the premises being available for allotment or release under Section 16 of the Act. If on the other hand, the premises was rightfully declared to be vacant in view of the deeming clause in Section 12 (3) of the Act, the question of allotment will be a matter between the R. C. and E. O., the landlord, and the applicants for allotment, and the petitioner who does not come in any of these categories, will have no right to contest the allotment proceedings or to question the validity of the allotment. 6. Now on the question of occurrence of a deemed vacancy, as stated above, it has already been held by this Court, relying on the dictum in Ganpat Roy's case (supra), in Writ Petition No. 8576 of 1982 that the declaration of vacancy by order dated 29-2-1980 has become final. 6. Now on the question of occurrence of a deemed vacancy, as stated above, it has already been held by this Court, relying on the dictum in Ganpat Roy's case (supra), in Writ Petition No. 8576 of 1982 that the declaration of vacancy by order dated 29-2-1980 has become final. There could thus be no jurisdiction with the District Judge to decide on the validity or otherwise of the order dated 29-2-1980 of declaration of vacancy, nor such a direction as sought in Writ Petition No. 37003 of 1995 could be given to the District Judge. For this Court also for the same reasons, there can be no occasion to pronounce upon the question of the alleged invalidity of the order dated 29-2-1980 which has attained finality. The contention that the declaration of vacancy by R. C. and E. O. is illegal and the observation of this Court regarding its finality is non est in view of the fact that the provisions of Section 12 (3) of the Act were not attracted in view of a Full Bench decision of this Court in Mangi Lal v. Additional District and Sessions Judge, Lucknow and others, reported in 1980 A. L. R. 1, is also not tenable. It is true that according to both the parties, the building on account of construction, of which the deeming clause in Section 12 (3) was made operative, was built before the commencement of Act 13 of 1972, but simply because of it the said provision would not be inapplicable. The proviso to Section 12 (3) takes care of the situation when it says that where the tenant or any member of his family had built a residential building before the dale of commencement of the Act then such tenant shall be deemed to have ceased to occupy the building under his tenancy, upon the expiry of a period of one year from the said date. The Court in Mangi Lal's case (supra) was not pronouncing upon the validity or otherwise of the proviso to Section 12 (3) of the Act, or regarding the effect of construction of a building by the tenant for the purposes of Section 12 (3 ). The Court in Mangi Lal's case (supra) was not pronouncing upon the validity or otherwise of the proviso to Section 12 (3) of the Act, or regarding the effect of construction of a building by the tenant for the purposes of Section 12 (3 ). This authority thus does not come to the rescue of the petitioner and by no stretch of interpretation the exercise of jurisdiction of determining the vacancy under Section 12 (3) by the R. C. and E. O. and the consequential order dated 29-2-1980, be called to be an exercise without jurisdiction and a nullity, nor can the conclusion of this Court regarding the said order having attached finality be ignored as being null and void. 7. The decisions cited on behalf of the petitioner reported in AIR 1966 S. C. 893, or AIR 1971 SC 1558 and AIR 1980 SC 1206 thus do not come to the rescue of the petitioner for the above stated reasons. 8. During the course of submissions, the learned Senior Advocate, appearing on petitioner's behalf, sought leave to refer to the state of occupation of family property amongst the petitioner and his collaterals, as at present, and sought a reappraisal of the declaration of vacancy and the consequential orders on its basis. Such an exercise however, in the opinion of this Court, is not permissible in view of the fact that the position with regard to the occurrence of vacancy has to be seen at the time when the proceedings were initiated on application for allotment being moved, and not at this stage after more than a decade. In view of all the above stated facts and circumstances, therefore, both these writ petitions do not merit admission and deserve to be dismissed in limini. 9. The two writ petitions are, accordingly, dismissed in limine. Petition dismissed.