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2013 DIGILAW 2715 (ALL)

Shailbala Jain v. Sanjay Jain

2013-10-30

RAN VIJAI SINGH

body2013
JUDGMENT Ran Vijai Singh, J. Heard learned counsel for the petitioners. 2. By means of this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the impugned orders dated 13.9.2013 passed by the Prescribed Authority/Judge Small Cause Court, Saharanpur in P.A. Case No. 33 of 2013 (Smt. Shailbala Jain Vs. Sanjay Jain) and order dated 26.9.2013 passed by the District Judge Saharanpur in Misc. (RCR) No. 110 of 2013 (Smt. Shailbala Jain Vs. Sanjay Jain). 3. Vide order dated 13.9.2013 the petitioners' application filed under Section 23 of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction ) Act, 1972 (in short 'the Act') has been allowed with the direction to the Amin to ensure the delivery of possession to the applicant and in this process, if necessary. police force may also be utilized. The court has also directed the Amin to submit a report by 30th September,2013. Whereas by the subsequent order dated 26.9.2013, the petitioner's revision has been dismissed holding it as not maintainable. 4. The facts giving rise to this case are that it appears the petitioners have filed P.A.Case No. 08 of 2013 (Smt. Shailbala Jain and another Vs. Sanjay Jain) seeking release of the accommodation under Section 21 (1) (a) and (b) of the Act. This application was allowed exparte vide judgment and order dated 17.5.2013. The petitioners, herein, have filed Misc. P.A. Case No. 33 of 2013 under Section 23 of the Act for delivery of possession. The said application was allowed vide order dated 13.9.2013. It appears, the petitioners' contention before the prescribed authority was that the writ be issued on form -D of the second schedule contained under U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, but that was not considered by the court below. 5. Aggrieved by that order, the petitioners have filed Misc. (R.C.R.) No. 110 of 2013 (Smt. Shailbala Jain Vs. Sanjay Jain) which was dismissed by order dated 26.9.2013 holding it as not maintainable. Learned counsel for the petitioner contends that both the courts below have erred in not considering the petitioners' objection by not issuing writ on form-D. 6. 5. Aggrieved by that order, the petitioners have filed Misc. (R.C.R.) No. 110 of 2013 (Smt. Shailbala Jain Vs. Sanjay Jain) which was dismissed by order dated 26.9.2013 holding it as not maintainable. Learned counsel for the petitioner contends that both the courts below have erred in not considering the petitioners' objection by not issuing writ on form-D. 6. For appreciating the controversy it would be beneficial to go through the contents in Form -D of the second schedule which is reproduced hereinunder : - Form D (See Rule 14) Order of eviction of unauthorized occupant Office of the District Magistrate No. .............................................. Date..................................19........ To The Officer-in -charge of the Police Station (hereinafter referred to as the Station Officer). ................................................................ Whereas Sri................................... is in unauthorized occupation of the building described below and despite service of order No.............., dated.............., on him, he has failed to vacate and deliver possession of the same to the allottee/landlord; 2. Now, therefore, in exercise of the powers under sub-section (4) of Section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, I, ............................. District Magistrate,........................ hereby order that the said Sri.................................................. and every person claiming through him be evicted so far as possible within 24 hours of the receipt of this order, from the said building by using such force as may be necessary and possession over the same be delivered to the allottee/landlord Sri....................................... 3. The Station Officer shall submit the compliance report by .................. if any specific property is found in the building and the same is not taken possession of by the owner thereof, the Station Officer shall follow the procedure laid down in Rule 26 of the Uttar Pradesh Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, under intimation to the undersigned. Signature................... Designation............. Description of building Municipal No. ................................... Mohalla ...................................... Police Station .................................. Portion of the building from which ejectment is sought Copy forwarded to : ................................... Sri ........................ (allottee/landlord). Signature........................... Designation........................ 7. Signature................... Designation............. Description of building Municipal No. ................................... Mohalla ...................................... Police Station .................................. Portion of the building from which ejectment is sought Copy forwarded to : ................................... Sri ........................ (allottee/landlord). Signature........................... Designation........................ 7. From the perusal of the Form-D, it transpires that it is issued in the eventuality when there is a specific mention in the application that despite the service of order, the tenant has failed to vacate and deliver the possession and in case it is stated so, in that eventuality, under Serial No. 2 (of Form D), the court is empowered to pass an order under Sub-Section 4 of Section 16 directing delivery of possession by using force. Serial No. 3 of the same form provides that the Station Officer shall follow procedure laid down under Rule 26 of the Rules of 1972 with the intimation to the Court. 8. Here from going through the facts of this case, it appears that the release application was allowed exparte, there was no service of notice when the release application was allowed, therefore it cannot be said that the order of eviction was in the notice of the tenant. In the application, the petitioners have made bald statement that the tenant was informed. He has not stated in specific words along with some concrete material that the order of eviction was served upon the tenant on such and such date. In view of this, in my opinion, the requirement to issue writ on Form D were not satisfied and the courts below have rightly not issued the writ on form-D. 9. I do not find any error in the impugned orders. 10. The writ petition is dismissed.