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2003 DIGILAW 1961 (ALL)

Ram Gopal v. 10th Additional District Judge

2003-08-29

S.P.MEHROTRA

body2003
JUDGMENT : S.P. Mehrotra, J. The present writ petition under Article 226 of the Constitution of India has been filed, inter alia, making the following prayers: (a) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 10.7.2003 (Annexure-9 to the writ petition) passed by Respondent No. 1/2. (b) To, issue a writ, order or direction in the nature of mandamus commanding the transfer of Rent Control Appeal No. 36 of 2000 Ram Gopal v. Krishen Chandra Verma, from the Court of Respondent No. 2 to some other Court of competent jurisdiction. (c) To issue any such order suitable writ order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case. (d) To award the costs of this writ petition to the Petitioner. 2. The dispute relates to a shop situated in Building No. 45/66, Gaya Prasad Lane, Mani Ram Ki Bagia, Kanpur Nagar. The said shop has hereinafter been referred to as the "disputed shop". 3. It appears that the Respondent No. 3 filed a release application u/s 21(1)(a) of the U.P. Act No. XIII of 1972 (in short the 'Act') against the Petitioner seeking release of the disputed shop on the ground that the same was required by him for doing business. 4. The prescribed authority by its judgment and order dated 21.2.2000 allowed the release application filed by the Respondent No. 3. 5. Thereupon, the Petitioner filed an appeal u/s 22 of the Act which was registered as Rent Control Appeal No. 36 of 2000. 6. It further appears that during the pendency of the said Rent Control Appeal No. 36 of 2000, the Petitioner filed an application dated 29.10.2001 (No. 81-C) for appointment of an Advocate Commissioner to go to the spot and submit his report on the points mentioned in the affidavit accompanying the application. Copy of the said application and its accompanying affidavit has been filed as Annexure No. 1 to the writ petition. 7. It further appears that on the said application, the appellate authority passed an order dated 13.2.2002 inter alia, observing that in case, after hearing the said appeal, the appellate authority reached the conclusion that the issuance of commission was necessary then suitable order would be passed at the stage of decision. 7. It further appears that on the said application, the appellate authority passed an order dated 13.2.2002 inter alia, observing that in case, after hearing the said appeal, the appellate authority reached the conclusion that the issuance of commission was necessary then suitable order would be passed at the stage of decision. Copy of the said order dated 13.2.2002 has been filed as Annexure No. 2 to the writ petition. 8. It further appears that by the order dated 25.1.2003 (Annexure No. 3 to the writ petition), the appellate authority allowed the said application (No. 81-C) and directed for issuance of commission to an Advocate Commissioner to visit the spot and submit report in the light of the said application (No. 81-C) by 15.2.2003. 9. It further appears that pursuant to the said order dated 25.1.2003, the Advocate Commissioner submitted his report dated 13.2.2003. 10. It further appears that the Petitioner filed his objection dated 24.2.2003 (Annexure No. 4 to the writ petition) against the said report dated 13.2.2003 submitted by the Advocate Commissioner. 11. Sri A. K. Gupta, learned Counsel for the Petitioner states that after filing of the said objection dated 24.2.2003, the said report dated 13.2.2003 submitted by the Advocate Commissioner was confirmed in the light of the evidence adduced by the respective parties, by the order dated 8.4.2003 passed by the appellate authority. Sri A. K. Gupta, learned Counsel for the Petitioner further states that there is typographical error in the typed copy of the order dated 8th April, 2003 filed as Annexure-5 to the writ petition and supplied photostat copy of the said order dated 25.4.2003 which is taken on record. 12. It further appears that thereafter, the Petitioner sought to file an affidavit along with certain documents. Copy of the said affidavit has been filed as Annexure-6 to the writ petition. 13. Sri A. K. Gupta, learned Counsel for the Petitioner submits that the question as to whether the said affidavit and its accompanying documents could be taken on record of the said Rent Control Appeal No. 36 of 2000 was considered by the appellate authority on 9.7.2003, and the arguments were heard on the said question on the said date, i.e., 9.7.2003. Sri Gupta further submits that after hearing the arguments, the appellate authority fixed 11.7.2003 for orders. 14. Sri Gupta further submits that after hearing the arguments, the appellate authority fixed 11.7.2003 for orders. 14. It is further submitted by Sri Gupta, learned Counsel for the Petitioner that on 10.7.2003, the appellate authority passed an order declining to take the said papers on record and directing the same to be returned to the Petitioner. The said order dated 10.7.2003 is impugned in the present writ petition. 15. I have considered the submissions made by Sri A. K. Gupta, learned Counsel for the Petitioner. Section 22 of the Act provides: 22. Appeal.-Any person aggrieved by an order u/s 21 or Section 24 may within thirty days from the date of the order prefer an appeal against it to the District Judge, and, in other respects, the provisions of Section 10 shall mutatis mutandis apply in relation to such appeal. 16. In view of the provisions of Section 22 of the Act, it is evident that the provisions of Section 10 of the Act shall mutatis mutandis apply in relation to an appeal u/s 22 of the Act. Section 10 of the Act lays down as follows: 10. Appeal against order under Sections 8, 9 and 9A.- (1) Any person aggrieved by an order of the District Magistrate u/s 8 or Section 9 (or Section 9A) may, within thirty days from the date of the order, prefer an appeal against it to the District Judge, and the District Judge may either dispose of it himself or assign it for disposal to any Additional District Judge under his administrative control, and may recall it from any such officer, or transfer it to any other such officer. (2) The appellate authority may confirm, vary or rescind the order, or remand the case to the District Magistrate for rehearing and may also take any additional evidence, and pending its decision, to stay the operation of the order under appeal on such terms, if any, as it thinks fit. (3) No further appeal or revision shall lie against any order passed by the appellate authority under this section, and its order shall be final. 17. A perusal of Sub-section (1) of Section 10 of the Act shows that the District Judge may either dispose of the appeal himself or he may assign the appeal for disposal to any Additional District Judge under his administrative control. 17. A perusal of Sub-section (1) of Section 10 of the Act shows that the District Judge may either dispose of the appeal himself or he may assign the appeal for disposal to any Additional District Judge under his administrative control. It is further provided in Sub-section (1) of Section 10 of the Act that the District Judge may recall the appeal from any such officer (i.e., Additional District Judge) and transfer the same to any other such officer (i.e., Additional District Judge). 18. In view of the aforesaid provisions of Section 22 read with Section 10 of the Act, it is evident that so far as prayer (b) in the writ petition quoted above is concerned, the Petitioner has remedy of approaching the District Judge for appropriate orders. In view of the aforesaid, the writ petition in so far as regards the prayer (b) is concerned, is liable to be dismissed on the ground that the Petitioner has got an alternative remedy of approaching the District Judge u/s 22 read with Section 10 of the Act. It is however, made clear that this Court has not considered the merits of the prayer (b) made by the Petitioner as it will be for the District Judge to consider the same in the light of facts and circumstances of the case, in case, the Petitioner approaches the District Judge in this regard. 19. As regards prayer (a) made in the writ petition, it will be noticed that the impugned order dated 10.7.2003 is an interlocutory order and it will be open to the Petitioner to challenge the same before this Court, in case, the aforesaid appeal, namely, Rent Control Appeal No. 36 of 2000 is ultimately decided against the Petitioner. Hence, without going into the merits of the impugned order dated 10.7.2003, I am of the opinion that no interference is called for with the impugned order at this stage. 20. In view of the aforesaid discussion, the writ petition is dismissed subject to the observations made above.