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2003 DIGILAW 228 (ALL)

SANTOSH KUMAR GUPTA v. ZAHUR MOHAMMAD

2003-01-31

S.P.MEHROTRA

body2003
S. P. MEHROTRA, J. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 3-1-2003 (Annexure No. 1 to the writ petition ). 2. The dispute relates to an accommodation on the first floor in House No. 235, Topchiwara, Meerut. The said accommodation has hereinafter been referred to as the "disputed accommodation". 3. From the allegations made in the writ petition, it appears that the vacancy was declared in respect of the disputed accommodation, whereupon, the respondent through his Power of Attorney holder filed a release application under Section 16 (1) (b) of the U. P. Act No. XIII of 1972 (in short "the Act" ). 4. It further appears that by the judgment and order dated 19-3- 1998, the release application filed by the respondent through his Power of Attorney holder was dismissed by the Delegated Authority/a. D. M. (C. S.), Meerut. Copy of the said order dated 19- 3-1998 has been filed as Annexure No. 3 to the writ petition. 5. Thereupon, it appears that the respondent through his Power of Attorney holder filed a revision under Section 18 of the Act against the said order dated 19-3-1998. The said revision was registered as Revision No. 177 of 1998. 6. It further appears that during the pendency of the said revision, the petitioner filed an application dated 7-2-2001 under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded in the said Revision No. 177 of 1998. The said application was supported by an affidavit of the petitioner (Santosh Kumar Gupta ). The petitioner, inter alia, alleged in the said affidavit that the petitioner was in occupation of the ground floor portion of House No. 236, Topchiwara, Meerut; and that the petitioner had filed an application on 8-3-1996 for allotment of the disputed accommodation; and that the disputed accommodation was on the first floor of House No. 235, Topchiwara, Meerut. Copy of the said application dated 7-2-2001 under Order 1 Rule 10 of the Code of Civil Procedure has been filed as Annexure No. 5 to the writ petition. 7. By the order dated 3-1-2003, the learned Special Judge (E. C. Act), Meerut rejected the said application for impleadment filed on behalf of the petitioner. 8. Thereafter, the petitioner has filed the present writ petition seeking the reliefs mentioned above. 7. By the order dated 3-1-2003, the learned Special Judge (E. C. Act), Meerut rejected the said application for impleadment filed on behalf of the petitioner. 8. Thereafter, the petitioner has filed the present writ petition seeking the reliefs mentioned above. 9. I have heard Sri P. K. Jain, learned counsel for the petitioner. 10. Sri Jain, learned counsel for the petitioner submits that the petitioner was entitled to be impleaded in the said Revision No. 177 of 1998, and the learned Special Judge (E. C. Act), Meerut committed patent illegality in passing the order dated 3-1-2003. 11. Having considered the facts and circumstances, and the submissions made by the learned counsel for the petitioner, I find myself unable to accept the same. It is well established that if an accommodation is declared vacant, the release application filed by the landlord under Section 16 (1) (b) of the Act is to be considered first. At this stage, the prospective allottee has got no locus-standi. It is only when the application for release filed by the landlord under Section 16 (1) (b) of the Act is rejected, that the question of considering the allotment application arises. Reference in this regard may be made to certain judicial decisions : 12. In Talib Hasan and another v. Ist Additional District Judge, Nainital and others, 1986 (1) ARC 1 (FB), a Full Bench of this Court laid down as follows (paragraphs 25, 26, 27, 28 and 29 of the said ARC): " (25) Having regard to the meaning assigned to the term "release" in various Judicial Dictionaries, it seems to us that the true import of the words `release the whole or any part of such building in favour of the landlord under Section 16 (1) (b) is that the building is being set free and is being taken out of the purview of allotment under clause (a) of Section 16 (1 ). In our opinion, the term clearly implies that when the rent control authorities decide to release the accommodation in favour of the landlord against whom the right of allotment was enforceable it shall no longer be available for allotment. (26) The right of a prospective allottee is not an absolute right. It is contingent upon, firstly, the accommodation being vacant and, secondly, the building being available for allotment. Rule 13 (4), as it stands, at present reinforces this conclusion. (26) The right of a prospective allottee is not an absolute right. It is contingent upon, firstly, the accommodation being vacant and, secondly, the building being available for allotment. Rule 13 (4), as it stands, at present reinforces this conclusion. It provides that no allotment in respect of a building covered by an application under Section 16 (1) (b) shall be made unless such application is rejected. The right of a prospective allottee to have his application considered hence arises only after the rejection of the landlords application under Section 16 (1) (b ). A fortiori the prospective allottee comes into the picture only after the disposal of the landlords application for release under Section 16 (1) (b), and, only if the same is rejected. (27) So far, therefore, as the scheme of the Act and the rules framed thereunder is concerned, the same, in our opinion, clearly points to the conclusion that a prospective allottee has no right of objection against the release application filed under Section 16 (1) (b ). As mentioned above, this right to have this application considered for allotment accrues only after the rejection of the release application. Indeed the consideration of the applications for allotment is taken up only after the rejection of the application under Section 16 (1) (b ). Neither the Act nor the rules framed thereunder thus postulate any right in a prospective allottee to file objections against the release application. (28) The prospective allottee has also no right or interest in the property or claim against the landlord so as to be entitled to any hearing in the disposal of the release application on general principles or doctrine of audi alteram partem. (29) We have reached the above conclusion on a systematic analysis of the statute even without the aid of the old Rule 13 (4 ). The old Rule 13 (4), in our opinion, which was dropped in 1977, merely recognized the long settled legal position as spelled out by series of decisions rendered on the construction and scope of Rule 5 framed under the 1947 Act. It was purely declaratory in nature and appears to have been inserted by way of reiteration of the existing legal position. It was purely declaratory in nature and appears to have been inserted by way of reiteration of the existing legal position. Its deletion hence did not, in our considered view, bring about any change in the legal position, namely, that prospective allottees have no locus standi in the disposal of an application for release under Section 16 (1) (b ). " 13. In Swaroop Narain Srivastava v. IVth Additional District Judge and others, 1994 (2) ARC 407 (SC), their Lordships of the Supreme Court laid down as follows (paragraph 8 of the said ARC): " (8) When Rule 10 of the Rules which provides for allotment procedure is seen, nowhere it is provided that an application for allotment of a vacant building should be considered in preference to the application made for release of the vacant building by the landlord. On the other hand, Rule 13 which provides the procedure for consideration of the application made for release of a vacant building by the landlord, by its sub-rule (4) requires that landlords application for release under the Rules shall, as far as possible, be decided within one month from the date of its presentation and no allotment in respect of a building covered by an application in that Rule shall be made unless such application has been rejected. Thus, when the sub-rule (4) of Rule 13 expressly states that unless an application made by the landlord for release of a vacant building is rejected, no allotment of the vacant building covered by that application could be made, it in terms requires consideration of the application for release of vacant building at the first instance in preference to other application for allotment. Therefore, it must be held that the Rules requires the consideration of the application for release made by the landlord in respect of the vacant building and decision thereon in preference to consideration of any other application for allotment or re-allotment made in respect of that vacant building. If that be our answer to the question under consideration the orders of the District Court and the High Court appealed against in this appeal become unsustainable and require to be interfered with. " 14. If that be our answer to the question under consideration the orders of the District Court and the High Court appealed against in this appeal become unsustainable and require to be interfered with. " 14. In Vijay Kumar Sonkar v. Incharge District Judge and others, 1995 (2) ARC 1 (SC), their Lordships of the Supreme Court upheld the Full Bench decision of this Court in Talib Hasan case (supra) and held as follows (paragraph 2 of the said ARC): " (2) The distinction between the two orders envisaged in sub- section (1) is well marked. In the case of an allotment order the result is brought about by a dialogue between the prospective tenant and the District Magistrate, thereafter, under whose orders the landlord is required to let any building to the prospective tenant. On the other hand in the case of a release order the dialogue takes place between the District Magistrate and the landlord and the prospective tenant does not figure in it at all. The allotment order and the release order, as the case may be, being mutually exclusive, have separate areas of operation permitting no encroachment of one over the other. The mere fact that the focal point is the District Magistrate from whom flow the respective orders is of no consequence. It is on this understanding of the law that the High Court relying on its Full Bench decision in the case of Talib Husain v. Ist Addl. District Judge, 1986 (1) ARC 1 (SC): 1986 SCFBRC 369 (Alld) (FB): AIR 1986 Alld 196 (FB) : 1986 All LJ 845 (FB), rejected the prayer of the prospective tenant that he had a right to be heard in a release application of the landlord based as it was on the provisions of sub-section (2) of Section 16 on ground of bona fide requirement. On the allowing of the release application the premises in question ceased to be allotable and since the District Magistrate, thereafter, would have no jurisdiction to make an allotment thereof and the prospective tenant consequently has no right to resist the landlord in release proceedings. The view of the High Court seems to us to be correct in the circumstances of the case as also in law because as of today no allotment order subsists in favour of the appellant and yet he continues to be in possession. The appeal is, therefore, dismissed. The view of the High Court seems to us to be correct in the circumstances of the case as also in law because as of today no allotment order subsists in favour of the appellant and yet he continues to be in possession. The appeal is, therefore, dismissed. The appellant is directed to vacate the premises within one month. It is made clear that he is not debarred from seeking another allotment order of any other premises if he has any such right in accordance with law. The appellant shall pay costs to the respondents throughout which we quantity at Rs. 5,000. " 15. In Ram Narayan Sharma v. Shakuntala Gaur, 2002 (2) ARC 1 (SC), their Lordships of the Apex Court laid down as follows (Paragraph 12 of the said ARC): " (12) In the writ petition the High Court found the appellant was rightly treated as a prospective allottee and the need of the landlady having been found to be a bona fide by the revisional Court, it committed no error in releasing the accommodation in her favour. So far the legal position is concerned, we feel that there is hardly any doubt that a prospective allottee shall have no right to oppose an application for release moved by the landlord. The need of the landlord is bona fide or not is a matter for satisfaction of the District Magistrate and on being so satisfied, an order of release can be passed. The release application is to be disposed of first before passing an order on the application for allotment. " 16. In view of the aforesaid legal position that the prospective allottee has got no right to be heard at the stage of consideration of the release application filed by the landlord under Section 16 (1) (b) of the Act, it follows that the petitioner had no locus-standi to oppose the release application filed by the respondent under Section 16 (1) (b) of the Act. As noted above, the said Revision No. 177 of 1998 was filed by the respondent through his Power of Attorney holder under Section 18 of the Act against the rejection of the release application under Section 16 (1) (b) of the Act. Hence, the question of release in favour of the respondent was/is the subject-matter of the said Revision No. 177 of 1998. Hence, the question of release in favour of the respondent was/is the subject-matter of the said Revision No. 177 of 1998. As the petitioner had no locus- standi to oppose the release application filed by the respondent under Section 16 (1) (b) of the Act, it was not open to the petitioner to seek impleadment in the said Revision No. 177 of 1998. 17. Therefore, in my opinion, the application for impleadment filed by the petitioner in the said Revision No. 177 of 1998 has rightly been rejected by the impugned order dated 3-1-2003. 18. In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed. Petition dismissed. .