JAGMOHAN AGARWAL v. ADDITIONAL DISTRICT JUDGE COURT NO 1 LUCKNOW
2008-08-22
O.P.SRIVASTAVA
body2008
DigiLaw.ai
O. P. SRIVASTAVA, J. Petitioners file rejoinder affidavit. Keep on record. Jagmohan Agarwal-petitioner No. 1, who was admittedly the tenant in the shop in question, moved an application purporting to be under Rule 10 (6) (a) of U. P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972, framed under the U. P. Act No. XIII of 1972, before the District Magistrate for permission to induct the petitioners No. 2 and 3 as partners and to carry on business in the name and style of M/s. Uma Vastra Bhandar. 2. At the very outset, it may be pointed out that in the said application, no one except State was arrayed as party. It was only in the body of application in para-2 the reference of landlord finds place. 3. The Rent Control Inspector presumably under the direction of District Magistrate made local inspection and submitted report. The process server also submitted report regarding service of notice. The petitioner Jagmohan Agarwal filed affidavit in support of his contentions. In absence of any objection and upon consideration of the evidence and contention of Jagmohan Agarwal, Additional District Magistrate allowed the application of Jagmohan Agarwal. 4. Laxmi Narain Agarwal, Kailash Chand Agarwal, Ashok Kumar Agarwal and Ghanshyam Das Agarwal claiming themselves to be landlords, filed revision before the District Judge, inter alia, on the ground that order of District Magistrate was ex parte and no opportunity of hearing was afforded to them before the order dated 10. 5. 2000 was passed. Learned District Judge after hearing the parties Counsel remanded the matter for deciding afresh after hearing both the parties. 5. The present writ petition has been filed by the tenant Jagmohan Agarwal along with two persons inducted as partners by order of District Magistrate against the revisional order dated 12. 9. 2007. 6. Since the petitioners disputed that the order of District Magistrate was not ex parte as claimed by the landlords, the matter has been heard on this point alone. 7. Learned Counsel for the petitioners submitted that from the report of Process Server, it is clear that when he visited the spot, the landlord met him and notice was served on him but the landlord himself preferred not to file any objection against the application and, therefore, it cannot be said that no op portunity of hearing was afforded to the landlord.
It has also been submitted that rent was paid to Laxmi Narain Agarwal and, therefore, he alone has right of audience before the Court but he chose not to appear inspite of service of notice. 8. On the other hand, learned Counsel for the opposite parties submitted that even in the body of application, the correct address of the landlord was not given and, therefore, there was no question of service of notice. It has also been submitted that from the report of process server also, it is not clear that on whom the notice was served. Learned Counsel for the opposite parties further submitted that in the garb of order of District Magistrate, Jagmohan Agarwal has inducted new persons as tenant which is ground for the petitioner to seek eviction but in view of the impugned order, he has not been able to file suit for eviction. 9. I have considered the rival contentions made before me and gone through the record. 10. The landlord while moving application under Rule 10 (6) (a) had not arrayed even Laxmi Narain Agarwal as party in the case. Jagmohan Agarwal was admittedly only the tenant and if any new order under the Act is sought obviously it goes without saying that landlord has right to be heard as any or der passed in favour of the petitioner or against the landlord is going to affect the right/interest of the landlord. A person whose right/interest is affected, has right of hearing before the order is passed, as is well settled. 11. The application under Rule 10 (6) (a) ought to have been given arraying landlord as party so that before any order was passed could be issued notice. Since State was arrayed as opposite party, the notice could not be issued to landlord in ordinary course. 12. Since the right/interest of the landlord is affected by an order passed on application under Rule 10 (6) (a), it is necessary that landlord should be given opportunity to file objection and also of hearing before any order is passed. The order being quasi judicial in nature and not purely of administra tive in nature, it is necessary that person affected by order passed on such pro ceeding should be given opportunity of hearing. 13.
The order being quasi judicial in nature and not purely of administra tive in nature, it is necessary that person affected by order passed on such pro ceeding should be given opportunity of hearing. 13. Since landlord was not impleaded as party and no notice was issued to him in ordinary course, therefore, the order passed can be easily inferred to be without any opportunity of hearing. 14. So far as the report of the process server as below is concerned, the same does not prove as to whom the notice was served, the notice does not disclose the name of person who appeared before the process server and on whom the no tice was served. 15. The address of the landlord as given in the body of the application be ing different from the address given by the petitioners in the present writ peti tion, conclusively establishes as submitted by the learned Counsel for the oppo site parties that address given was not correct. Therefore, in this view of the matter it can be safely said that the landlord was not served of any notice even through process server. 16. The report of process server is reproduced hereinbelow : 17. In view of the above, it unambiguously clear that the order passed by the District Magistrate is without affording any opportunity of hearing and proper service of notice. Therefore, said order was ex parte as found by the Revisional Court. The Revisional Court did not commit any error in remanding the matter for deciding afresh after affording opportunity of hearing to the landlord. No interference is called for. The writ petition being devoid of merit is hereby dismissed. Since the matter is pending since 2000, it is expected that District Magistrate will dispose of the matter as expeditiously as possible, say, preferably within a period of six months from the date the parties appear before him. The parties shall appear before the District Magistrate on 9th September, 2008. Petition Dismissed. .