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2005 DIGILAW 85 (ALL)

Ramakant Mishra v. Surendra Kumar Mishra

2005-01-19

ANJANI KUMAR

body2005
ANJANI KUMAR, J. ( 1 ) HEARD learned Counsel for the petitioner. ( 2 ) THE petitioner by means of this writ petition has challenged the orders dated 23rd August 2004 passed by Rent Control and Eviction Officer and the order dated 30th October, 2004 passed by the In-charge District Judge, Varanasi in R. C. R. No. 27 of 2004. The petitioner, Ramakant mishra, who claims to be occupant of the accommodation in question, is aggrieved by an order passed by the Rent Control and Eviction Officer dated 23rd August 2004 whereby the Rent control and Eviction Officer, after rejecting the objection filed by the petitioner, declared the accommodation in the possession of Ramakant Mishra i. e. House No. D-34/190, Mohalla ganesh Mahal Dashaswamedh, Varanasi to be vacant and directed the vacancy to be notified in accordance with law. Aggrieved by the aforesaid order passed by the Rent Control And Eviction officer the petitioner filed Revision No. 27 of 2004 before the District Judge. ( 3 ) I will first dealt with the order passed by the District Judge in deciding the revision filed by the petitioner which has been dismissed on the ground that revision is not maintainable under section 18 of U. P. Act No. 13 of 1972. In view of law laid down by Apex Court in the case of ganpat Roy and Ors. v. Additional District Magistrate and Ors. , (1985) 2 SCC 307 : 1985 (2)ARC 73, revision under Section 18 of the Act is not maintainable against the order declaring vacancy. Learned Counsel for the petitioner relied upon a decision of two Honble Judges of supreme Court in the case of Achal Misra v. Ram Shankar Singh, 2000 (2) ARC 446, wherein the Apex Court has held that papers of Achal Mishras case be placed before Honble the Chief justice of India to be referred to a Larger Bench. ( 4 ) LEARNED Counsel for the petitioner has stated that in the aforesaid case of Achal Misra the apex Court has observed that the matter may be referred to the larger Bench, as it requires reconsideration of the case of Ganpat Roy (supra), which is a decision by a three Judges Bench, therefore, the view taken by the District Judge that revision is not maintainable is not correct. In view of the observations made in the case of Achal Mishra (supra), referred to above, the argument of the petitioner that a revision lies against an order declaring the vacancy before the revisional authority under Section 18 of the Act cannot be accepted. The District Judge committed no error in rejecting the revision as not maintainable. ( 5 ) NOW coming to the order passed by the Rent Control and Eviction Officer it is admitted case of the parties that the petitioner is occupying the accommodation in question without any allotment order under the provisions of the Act. Learned Counsel for the petitioner has submitted that in view of decision of the Supreme Court in Nutan Kumar and Ors. v. IInd Additional district Judge and Ors. , AIR 2002 SC 3456 : 2002 (2) ARC 645, whereby Full Bench of this court has been over-ruled and the Apex Court ruled as under: "a person who occupies a premises without an allotment order in his favour shall be deemed to be an unauthorized occupant of such premises as he is in unauthorized occupation like a trespasser. " ( 6 ) IN this view of the matter the Rent Control and Eviction Officer, in my opinion, has rightly declared the petitioner to be an unauthorized occupant and, therefore, there is no error committed by the Rent Control and Eviction Officer declaring the accommodation to be vacant. ( 7 ) SINCE both the arguments have been rejected, I dot not find any merit in this writ petition. It is accordingly dismissed. . .