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2010 DIGILAW 251 (ALL)

Rajesh Kumar Tewari v. State of Uttar Pradesh

2010-01-21

SHISHIR KUMAR

body2010
JUDGMENT Hon'ble Shishir Kumar, J. This writ petition has been filed for quashing the orders dated 1.8.2007 and 25.6.2007 (Annexures 6 and 5 to writ petition). Further a writ in the nature of certiorari quashing the order dated 27.4.2007 respectively. 2. The facts as emerged in view of fact as stated in writ petition are that the disputed accommodation No.109/238 Ram Krishna Nagar Kanpur Nagar was owned by late Smt. Chandra Devi Tewari, w/o late Shri Sidha Nath Tewari. Smt. Chandra Devi Tiwari was having three daughters respondent Nos. 4 to 6. Smt. Chandra Devi Tewari was having no source of income, as such, for the purposes of marriage of her daughter-respondent No.6, she has taken loan of Rs.1 lac for the purposes of marriage. Admittedly, Smt. Chandra Devi Tewari was the owner of the said accommodation having four tenants apart from her residential accommodation including back portion of one room, one store room, kitchen bathroom and verandah. It was decided to mortgage the aforesaid accommodation for Rs. 1 lac and possession of said property was given to petitioner. An instrument to that effect was also executed on 15.1.1998. Smt.Chandra Devi Tiwari mother of respondent died on 18.7.2003. As stated by petitioner that an application was given by respondent No.7 in connivance with respondent Nos. 4 to 6 for the purposes of allotment of the accommodation which was in possession of petitioner. Some other persons have also made an application for the said purpose. Rent Control and Eviction Officer after inspection under Rule 8(2) of the U.P. Urban Buildings Rules 1972 notified the vacancy on the basis of the said application. When petitioner came to know regarding making an application for allotment, he immediately took objection that said accommodation cannot be declared vacant in view of the fact that a mortgage deed has already been executed in favour of petitioner by the mother of respondent Nos. 4 to 6 and he cannot be treated to be unauthorised occupant and by virtue of said mortgage deed, he has become co-landlord but by order dated 24.4.2007, vacancy was declared. 4 to 6 and he cannot be treated to be unauthorised occupant and by virtue of said mortgage deed, he has become co-landlord but by order dated 24.4.2007, vacancy was declared. Immediately after declaring of vacancy, an application for release of the accommodation was filed under Section 16(1)(b) of the Act on the ground that building was let out without any order of allotment and alleged agreement, if any, is not binding upon respondent No. 4 to 6 and competent authority on the basis of the pleading of the parties, has passed an order releasing the accommodation in favour of respondent Nos.4 to 6. The order was passed on 25.6.2007 by the Rent Control and Eviction Officer releasing the accommodation of first floor consisting of one room, one store, verandah, latrine, bathroom and kitchen which was in possession of petitioner. 3. Petitioner aggrieved by the aforesaid order, filed a revision. Revisional court has rejected the revision vide its order dated 1.8.2007 holding therein that as revision under Section 18 of the Act has been filed against an order dated 25.6.2007 which is the order of release of the accommodation in favour of respondent Nos.4 to 6, therefore, revision itself is not maintainable and is liable to be dismissed. Petitioner aggrieved by the aforesaid orders, has filed the present writ petition. 4. Smt. Sunita Agarwal learned counsel appearing for respondents has raised an objection regarding maintainability of the writ petition that order of vacancy dated 24.4.2007 has already become final and it has not been challenged by petitioner in any proceeding, therefore, this writ petition challenging the order of release only dated 25.6.2007 is not maintainable and as such, the same is liable to be dismissed. 5. On the other hand, Sri Ashok Pandey, learned counsel appearing for petitioner submits that from the prayer made in the memo of revision, it is clear that it was a revision challenging the composite order of vacancy as well as order of release which is apparent from the prayer made thereunder. The prayer made by petitioner is being quoted below:- "It is, therefore, prayed that this Hon'ble Court be pleased to set aside the order dated 25.6.2007 passed by VIIth Addl.City Magisttrate Kanpur Nagar in Rent Case No.90/2006 - Sunil Kumar Dwivedi vs. Rajesh Tewari U/s 12 of the U.P. Act Nno. The prayer made by petitioner is being quoted below:- "It is, therefore, prayed that this Hon'ble Court be pleased to set aside the order dated 25.6.2007 passed by VIIth Addl.City Magisttrate Kanpur Nagar in Rent Case No.90/2006 - Sunil Kumar Dwivedi vs. Rajesh Tewari U/s 12 of the U.P. Act Nno. 13 of 1972 in respect of H.No. 109/238, Ram Krishna Nagar, P.S. Nazirabad, Kanpur-Nagar, allowing the application for release of the accommodation in dispute after summoning the records of the case no. 90/2006 as mentioned above, in the interest of justice." 6. Further it has been submitted that petitioner being co-landlord on the basis of mortgage deed executed by Smt. Chandra Devi Tewari in favour of petitioner in lieu of payment of Rs.1 lac, as the amount has not been paid, therefore, in lieu thereof the possession was given and petitioner has become the co-landlord and cannot be ejected in this proceeding. Further an objection to that effect was raised before the Rent Control and Eviction Officer establishing the mortgage deed that they are the co-owners of the property in dispute and they were in possession of property in dispute with the consent of the landlady who has executed the mortgage deed in their favour, therefore, their possession cannot be treated to be an illegal or unauthorised but the Rent Control and Eviction Officer as well as the revisional court has not considered the same and has declared the vacancy and subsequently an order of release has been passed. 7. I have considered the submissions made on behalf of parties and have perused the record. 8. It is clear from the record that an application was moved by respondent No.7 for allotment of the aforesaid accommodation on 28.6.2005. An inspection was made and during inspection it was revealed that petitioner is living in the said accommodation with the consent of the earlier landlady from a period of seven years as a tenant on a monthly rent of Rs.1300/-. It was also come from the record that there is no order of allotment in favour of petitioner. An inspection was made and during inspection it was revealed that petitioner is living in the said accommodation with the consent of the earlier landlady from a period of seven years as a tenant on a monthly rent of Rs.1300/-. It was also come from the record that there is no order of allotment in favour of petitioner. The Rent Control and Eviction Officer while passing the order on the basis of application for allotment has recorded a specific finding that from the perusal of relevant records it appears that petitioner has failed to prove or is not able to produce any document that he is in possession on the basis of some agreement. He himself has made an application for allotment excepting the possession of the property in dispute, therefore, legally it will be treated that he is an unauthorised occupation of premises in dispute. After recording this finding, property in question was declared vacant vide its order dated 24.4.2007. Petitioner has not challenged the said order by means of writ petition or by filing a revision. After the order of vacancy, respondent nos. 4 to 6 filed an application for release of the said accommodation and petitioner has contested and opposed the said application, in spite of the aforesaid fact, the Rent Control and Eviction Officer vide its order dated 25.6.2007 has release the said accommodation in favour of respondent No. 6 to 7. Then petitioner filed a revision. That in revision too, petitioner has challenged the order dated 25.6.2007. The order of vacancy was not challenged or prayed in the memo of revision filed by petitioner which is apparent from the prayer made by petitioner as quoted above. Revisional court after considering the various judgements of this Court as well as the Apex Court has recorded a cogent finding that revision itself against an order of release under section 16(1)(b) of the Act, is not maintainable as it is a matter between landlord and prescribed authority or Rent Control and Eviction officer. 9. This Court in judgement reported in 1986 Allahabad, 196 (Full Bench) Talif Husain vs. Ist Addl. District Judge, it has been held the prospective tenant has got no right to be heard in release application of the landlord. In 1995(2) ARC, 1 (Supreme Court )Vijai Kumar Sonkar Vs. 9. This Court in judgement reported in 1986 Allahabad, 196 (Full Bench) Talif Husain vs. Ist Addl. District Judge, it has been held the prospective tenant has got no right to be heard in release application of the landlord. In 1995(2) ARC, 1 (Supreme Court )Vijai Kumar Sonkar Vs. Incharge District Judge and others and Ram Narain Sharma vs. Shakuntala Gaur reported in 2002(2) ARC, 1 (Supreme Court )the Apex Court has held that there is no doubt to this effect that the prospective allottee shall not have any right to oppose the application for release moved by landlord. In Nutan Kumar and others Vs. IInd Addl.District Judge and others reported in AIR 2002 Supreme Court 3456, the Apex Court has held that a person who occupy the premises without an allotment order in his favour shall be deemed to be unauthorised occupant of such premises as he is in unauthorised occupation like a trespasser. 10. Admittedly, petitioner is not able to show that any agreement between the parities was ever executed in contravention of the provision of the Act. Further it is to be noted that the status of petitioner as claimed by him that he has become co-landlord in view of the mortgaged deed cannot be accepted by this Court that legality and validity of the mortgaged deed cannot be looked into by the Rent Control and Eviction Officer in such proceeding. Petitioner at no point of time is claiming himself to be a tenant. He is putting his right only on the basis of mortgage deed that he has become the co-landlord. If that is so, as argued by petitioner, he can establish his right by filing a proper civil suit before the competent court of law. In such proceeding right of petitioner claiming himself to be co-landlord on the basis of mortgage deed cannot be adjudicated under a proceeding of Section 12 as well as Section 16 of the U.P. act No.13 of1972. 11. In view of aforesaid fact, I find no merit in the writ petition. The writ petition is devoid of merits and is hereby dismissed. 12. No order as to costs.