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2010 DIGILAW 2934 (ALL)

Neeraj Kumar v. City Magistrate, Unnao

2010-09-22

SATISH CHANDRA

body2010
JUDGMENT Hon'ble Dr. Satish Chandra,J. - Heard P. K. Khare learned counsel for the petitioner and Sri S. K. Mehrotra learned counsel for the opposite party no. 2. 2. By this writ petition, the petitioner has assailed the interim order dated 04.08.2003 passed by City Magistrate , Unnao, the opposite party no.1, in Suit No. 18 of 1999; Smt. Kalawati v. Neeraj Kumar. 3. The brief facts of the case are that the petitioner is the tenant in a shop located in Mohalla Oontsa at Unnao. It is alleged that the said shop was constructed in the year, 1978 and was first time assessed by the municipality, Unnao in the year of 1979. By an agreement on 15.12.1980, the shop was let out to the petitioner on a monthly rent of Rs.125/- including the water tax etc. Thereafter, the tenancy was continuing but on 15.09.1997, the opposite party no. 2 filed a Suit no. 10 of 1997 under Section 21 (1)(A) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as Act) before the prescribed authority at Unnao alleging that the shop was required for personal use and to establish her son Sri Rajesh Kumar. The said application was dismissed in default on 02.08.1999. However, on 12.10.1999, the opposite party no.2 has filed another application under Section 16 (1) (b) of the Act for release of the shop as she needed the same to set up her son in the business. In the said suit, on 11.10.2002, the Rent Control and Eviction Officer directed the Rent Control Inspector to submit his report after inspecting the shop in dispute but the petitioner has challenged the same on 05.02.2003 by filing Rent Control Revision No. 02 of 2003, disputing the jurisdiction of the prescribed authority. On 04.08.2003, the prescribed authority observed that the U.P. Rent Control Act No. 13 of 1972 is applicable in the matter pertaining the shop in dispute, and he has the jurisdiction to decide the application moved under Section 16 (1) (b), which is to be decided on the basis of the inspection report of the Rent Control Inspector. The liberty was given to the petitioner to file his objection on the report. Being aggrieved against the order dated 04.08.2003, the petitioner has filed the present writ petition. 4. The liberty was given to the petitioner to file his objection on the report. Being aggrieved against the order dated 04.08.2003, the petitioner has filed the present writ petition. 4. With this background, Sri P. K. Khare, learned counsel for the petitioner submits that the prescribed authority has passed the order without applying his mind. He further submits that the trial court can only invoke its jurisdiction on the basis of the averments in the pleadings and not otherwise. The tenancy was created in accordance with law, particularly admitting the premises was not governed by the Act. Thus, applicability, later on, does not touch with the tenancy and as such, the opposite party no. 1 has no jurisdiction at all. He also submits that even otherwise, initiation of the proceedings and its continuance amounts to abuse the power and also apparently without any jurisdiction. Therefore, it suffers from an error, which is apparent on the face of record. 5. Learned counsel read out Sub-Section (2) of Section 2 of the Act, which reads as under: "Section 2. Exemptions from Operation of Act: (1) ............. (2).Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed." 6. Learned counsel further submits that the petitioner was inducted in the premises in accordance with the T. P. Act when the U.P. Act was not applicable to the premises in question. However, in 1989, when the Act becomes applicable to the premises in question, power can only be invoked under Section 16 when the ingredients is satisfied under Section 12 i.e. the ingredients will apply if the building has actually fallen vacant or the occupant is unauthorized. In these circumstances, the Prescribed Authority has no power at all on assumption that if the interpretation is read, it would mean that on the applicability of Act, the tenancy created under the T.P. Act will automatically become unauthorized tenancy and will continue to be in possession of the premises, if an allotment order is issued by the District Magistrate at his pleasure. This interpretation is absurd and inconsistent to the spirit of Section 14 of the Act. 7. This interpretation is absurd and inconsistent to the spirit of Section 14 of the Act. 7. In support of his argument, he has relied on the ratio laid down in the case of Ganpat Roy and others v. The Additional District Magistrate and otherswhere it was observed that : "Under the proviso to section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub-section (4) which includes a deemed vacancy under section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. In fact, as would appear from the order dated September 30, 1981, of the Rent Control and Eviction Officer in Civil Appeal No. 8552 of 1983, the Allahabad High Court has held that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. The tenant has thus no adequate or effective remedy against an order notifying a vacancy. The tenant has thus no adequate or effective remedy against an order notifying a vacancy. Further, it should be borne in mind that under Rule 10 (6) a tenant who is deemed to have ceased to occupy a building under section 12(2) is not entitled for a period of two years from the date of such deemed vacancy to the allotment of the same or any other non-residential building." 8. He further relied on the ratio laid down in the following cases: 1.Special Deputy Controller (L.A) v. N. Vasudeva Rao and Others 2.Hari Shanker and others v. Prescribed Authority/Pargana Magistrate, Hathras, District Aligarh and others 9. Lastly, he made a request that the impugned interim order may kindly be set aside. 10. On the other hand, Sri S. K. Mehrotra, learned counsel for opposite party no. 2 justified the impugned order. He submits that admittedly, the shop in question is now covered by the Act of 1972. The petitioner is occupying the same shop since 1980 without any allotment order. So, he is an authorised occupant and, therefore, the shop in question has to be deemed as vacant. The Rent, Control and Eviction Officer, Unnao has rightly held that he has the jurisdiction to decide the application for release filed by the opposite party no. 2 under Section 16 (1) (b) of the Act. 11. Sri Mehrotra also submits that the judgment relied by the petitioner's counsel in the case of Ganpat Roy (supra) has been over ruled in the Case of Achal Mishra v. Rama Shanker Singh where it was observed that : "It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision making in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy' s case, which has disapproved the ratio of the decision in M/s Tirlok Singh and Co., cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy' s case and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Smt. Kunj Lata vs. Xth Additional District Judge, Kanpur Nagar and others (supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies." 12. He also relied on the ratio laid down in the following cases: 1.Geep Industrial Syndicate Ltd. Allahabad v. Rent control and Eviction officer, Allahabad. 2.Ajai Pal Singh v. District Judge, Meerut and others. 3.Laxman Prasad Richaria v. IVth Additional District Judge, Hamirpur and others. 4.Jagjit singh v. District Judge Dehradun and others. 5.Kuldeep Singh v. R. C. & E.O. Kanpur. He also relied on the ratio laid down in the following cases: 1.Geep Industrial Syndicate Ltd. Allahabad v. Rent control and Eviction officer, Allahabad. 2.Ajai Pal Singh v. District Judge, Meerut and others. 3.Laxman Prasad Richaria v. IVth Additional District Judge, Hamirpur and others. 4.Jagjit singh v. District Judge Dehradun and others. 5.Kuldeep Singh v. R. C. & E.O. Kanpur. 6.Vinod Kumar v. R. C. & E.O. Saharanpur and others 7.Vikas Narain Bastar v. City Magistrate/R.C. and E.O. Hardwar 8.Kanhaiyalal v. R. C. and E. O. and others. 9.Nootan Kumar v. 2nd Additional District Judge. 13. By considering the rival submissions and on the basis of the material available on record, it appears that admittedly, the petitioner is the tenant in the shop in question. The petitioner has filed his objection on 14.05.2002 accompanied by another affidavit dated 02.07.2002. On 11.10.2002, prescribed authority has asked the Inspector to inspect the shop and submit a report as the prescribed authority in its order has observed that only after receiving the report, it will be decided whether the Act of 1972 is applicable or not. Finally, the Court below observed that the Act is applicable and he has jurisdiction to decide the matter. The report submitted by the Inspector is in the existence. So, liberty was given to the petitioner to file objection on the said report. But the petitioner without filing the objection has chosen to file the present writ petition just to linger on the case. 14. In view of above, I find nothing wrong in the impugned interim order where an opportunity to file objection on the said report is already given. Hence, the interim order is hereby sustained along with the reasons mentioned therein. However, the Prescribed Authority is directed to dispose of the pending suit/application at the earliest expeditiously as the matter is too old, preferably within a period of six months in accordance with law. 15. With the above observation, the writ petition is dismissed.