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2010 DIGILAW 1369 (ALL)

MUKHTAR ALI v. Xth A. D. J.

2010-04-27

DEVENDRA PRATAP SINGH

body2010
JUDGMENT DEVENDRAPRATAP SINGH, J.-None appears to press this application even in the revised list though Counsel for the petitioner respondent are present. 2. Heard learned Counsel for the parties. . 3. This application for impleadment on behalf of Waris Ali has been made with the allegation that the disputed property was owned by Koshal Chand Narain Das and on his death his son Ramdas and thereafter Ram Kishan Singh and on his death Veerpal Singh became its owner and he, vide registered sale deed of June, 2003, has transferred the disputed property in his favour and therefore, he is a necessary party. 4. Apart from the fact that title is not an issue in the present proceedings, there is no denial that the property stood under attachment where the Tehsildar is the receiver and he would be deemed to be in legal occupation of the premises till the attachment is lifted. There is no averment in the application that the attachment has been lifted. 5. In view of the aforesaid, the impleadment application is hen by rejected. 6. Heard learned Counsel for the parties. 7. This petition is directed against orders dated 20.6.1988 and 26.82000 by which both the Courts below have set aside an order of declaration of vacancy and allotment made in favour of the petitioner. 8. It appears that the petitioner had filed an application for allotment of the disputed shop on 19.6.1987 upon which the rent controller obtained a report of the Inspector whereafter vacancy was declared and the premises were allotted to the petitioner vide order dated 10.7.1987. The contesting respondent Smt. Sham run Nisa filed an application under section 16 (5) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) for cancellation of the vacancy and the allotment order on the ground she is a tenant on a monthly rent of Rs. 6.25/and carries on her business of wooden doors etc. It was further stated that the said property belonged to Khushal Chand Narain Das but in proceedings for recovery of income tax dues the said property was attached and the Tehsildar, Kanpur Nagar, Kanpur was appointed receiver. 6.25/and carries on her business of wooden doors etc. It was further stated that the said property belonged to Khushal Chand Narain Das but in proceedings for recovery of income tax dues the said property was attached and the Tehsildar, Kanpur Nagar, Kanpur was appointed receiver. Earlier some old constructions were standing thereon wherein one Mewa Lal claimed himself to be a tenant but after the constructions fell down, he surrendered his tenancy to the Tehsildar whereafter that vacant piece of land was allotted by the Tehsildar to her and she came into possession and constructed a temporary shop. However, Mewa Lal sought to dispossess her on the ground that the allotment was invalid, forcing her to file Original Suit No. 1037/74 against aforesaid Mewa Lal. However, Mewa Lal himself filed Suit No. 1573/73 alleging to be the tenant and sought to injunct her from interference. Both the suit were consolidated. Though the suit of Mewa Lal was dismissed, the suit of Shamrun Nisa was decreed holding that it was a vacant piece of land and the provisions of the Act were not applicable. The Court went on to hold that Tehsildar having been appointed the receiver of the property, it became a public building and therefore, also the Act would not apply. First appeal against the said decree was also dismissed whereupon Mewa Lal preferred second appeal which was also dismissed vide order and judgment dated 4.8.1982 by this Hon'ble Court which also upheld the finding that allotment made in favour of the Shamrun Nisa was valid and the provisions of the Act were inapplicable. It was further asserted that in pursuance of the decree, she obtained possession in execution of the decree whereafter she constructed the disputed shop and started running it but the petitioner who was unemployed and was nephew of her husband, was employed to look after his shop but later on his intentions became suspect and therefore, a first information report was also lodged against him and upon enquiry by the police, it transpired that he has been able to obtain fraudulent allotment order in his favour which is liable to be cancelled. It was also alleged that the Rent Control Inspector did not comply either with the provisions of Rules 8 (2) and (3) and without any notice or information to her, surprisingly the vacancy was declared and allotment was made. 9. It was also alleged that the Rent Control Inspector did not comply either with the provisions of Rules 8 (2) and (3) and without any notice or information to her, surprisingly the vacancy was declared and allotment was made. 9. The petitioner filed his objection inter alia stating that the Act applied and he was in possession of the disputed premises for the last about 4 to 5 years and was carrying on the business in the name of M/s. Mukhtar and sons. It was further asserted that he was never a servant of the respondent and she is neither the landlord nor occupant and therefore, the objection ought to be dismissed. 10. After hearing the parties, the order of vacancy and allotment were both cancelled against which the petitioner preferred Rent Revision No. 111 of 1988 and the learned District Judge on a technical issue allowed the revision and remanded the matter back to the Rent Controller vide his order dated 8.8.1990. This revisional order was subjected to challenge by the contesting respondent in Writ Petition No. 276740 of 1990 which was allowed and the revisional order was quashed and the matter was remanded to the Revisional Court for decision afresh after considering the material on record. Upon remand, the revision has been dismissed by a detailed order dated 26.8.2000 which is under challenge. 11. Learned Counsel for the petitioner has urged that revision under section 16 (5) of the Act was not maintainable as it was neither filed by the landlord 12. The District Magistrate under section 16 (1) (a) may by order require any landlord of a building which has fallen vacant or is about to fall vacant to let it to any person vide an allotment order and the proviso thereto places an obligation upon him to give an opportunity to the landlord or the tenant if it is a case of vacancy caused by cessation of occupation by the tenant. Sub-section (5) thereof enables a lawful occupant or the landlord of the building to apply for review of such an allotment order if it was not made in accordance with Clause (a) or (b) of sub-section 1. Thus, it is clear that an application for review under section 16 (5) is maintainable either by the landlord or by the occupier. The Inspector in his report dated 19.6.1987 had. Thus, it is clear that an application for review under section 16 (5) is maintainable either by the landlord or by the occupier. The Inspector in his report dated 19.6.1987 had. reported that Smt. Shamrun Nisa, the contesting respondent was the tenant of the disputed accommodation. In his allotment application which is annexed as Annexure-1 to the counter-affidavit mentions that Smt. Shamrun Nisa was the previous occupier. From the documents of the petitioner himself, it is apparent that Smt. Shamrun Nisa was the legal occupier of the premises. However, learned Counsel for the petitioner contends that the last occupier was M/s. Mukhtar Ali which is a firm of the petitioner himself. According to the petitioner himself the Act applies to the premises but there is absolutely no averment or evidence to show how the firm came into legal occupation and even if it is assumed for the sake of argument that possession was handed over either by Mewa Lalor Shamrun Nisa as stated in the report of the Inspector and the allotment application, such possession would be totally illegal in view sections 11, 12, and 16 of the Act and at best the firm could be in occupation on behalf of Shamrun Nisa. Thus, even then Shamrun Nisa would be the occupier and entitled to file the review application. Strangely, in the pleadings before this Court the petitioner has pleaded in paragraph 8 that Mew Lal was in occupation of the disputed shop and he had removed his possession leading to vacancy. The petitioner at different places has taken up different stand which itself shows the falsity of his claim. 13. Assuming for the sake of argument that Shamrun Nisa was not the occupier but the pivotal question still remains whether the Act applied to the premises. While noticing the fact, it would be evident that this Court in Second Appeal No. 1310 of 1972 connected with Second Appeal No. 2596 of 1972 has recorded a categorical finding in its judgment dated 4.8.1981 that the Act did not apply to the disputed premises on the ground that a vacant plot of land was allotted to Shamrun Nisa by the receiver and it went on to hold that since the Tehsildar had been appointed the receiver, it would become a public building and therefore, the Act would not apply. Thus, assuming that his pleading in paragraph 8 of the petition is correct, the petitioner at best would step in the shoes of Mewa Lal and therefore, would be bound by the findings recorded by this Court. 14. The issue can be examined from a10ther angle. It cannot be denied by the petitioner and in fact has even been admitted in his allotment application that the entire premises was attached in proceedings for recovery of income tax dues and Tehsildar came into possession and thus, he would assume the status of the landlord. It needs no reiteration that before declaring a premises vacant or allotting it, the District Magistrate is obliged to notice the landlord which is also provided in section 16 read with Rule 8 of the Rules framed thereunder. There is absolutely no iota of evidence to show that any effort was made their by the Inspector or by the Rent Controller to notice the landlord. These are mandatory provision and therefore, violation would render the resultant order void. This Court sitting under Article 226 of the Constitution of India is also a Court of equity and once it is found that quashing of an illegal order would result in revival of a void order, it can refuse interference. In the present case it is the same situation because if the orders impugned are quashed it would lead to revival of a void order of vacancy and allotment. Therefore, also, the Court declines to exercise its extraordinary power. 15. Though the Counsel for the petitioner has taken the Court through the impugned orders, he has failed to point out any error, much less an error, apparent on the face of record which requires interference. In view of the fact, both the orders are well reasoned and based on evidence on record. 16. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. Petition Rejected.