Aamir Khursheed Malik v. Prescribed Authority & Others
2013-01-31
SUDHIR AGARWAL
body2013
DigiLaw.ai
Sudhir Agarwal, J.— 1. Heard Sri M.K. Pandey, Advocate, holding brief of Sri Sikandar Raza, Advocate for petitioner, Sri A.K. Banerji, Advocate, holding brief of Sri M.K. Misra, Advocate, appearing for respondent no. 2 and Sri U.C. Kesarwani, Advocate, holding brief of Sri Nameet Srivastava, Advocate, for respondents 3 and 4. 2. The dispute relates to shop no. 584/3 situate at Mohalla Mohammad Zai, Shahjahanpur of which respondents 3 and 4 are landlord. Respondent no. 2, claiming that the shop in question is vacant, filed an application for allotment thereof whereupon proceedings under Section 12 and 16 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") were initiated by Rent Control and Eviction Officer, Shahjahanpur (hereinafter referred to as "RCEO"). The shop was inspected by Rent Control Inspector, Shahjahanpur (hereinafter referred to as "RCI") and he submitted report on 12.5.2004 (Annexure 4 to the writ petition) wherein he said to have visited premises on 16.4.2004 when the shop was found open with a sign board in the name and title of "Perfect Engineer" and some furnitures etc. were found. Polytechnic certificate in the name of Amir Khursheed, petitioner, was also found by him in the shop in question who was said to be working there as a Draftsman Engineer. He (RCI) also mentioned that respondent no. 2, who was also present at the time of inspection, stated that he was in service of O.C.F. 3. Petitioner filed an objection dated 19.11.2004 against allotment application before RCEO, a copy whereof has been filed as Annexure 5 to writ petition, wherein he reiterated that shop in question is under his tenancy and he is occupying the same and the same is not vacant. The RCEO, however, passed impugned order dated 2.12.2004 observing since respondent no. 2 has stated that shop in question is vacant and petitioner has another shop in Mohalla Lal Imli, Shahjahanpur, therefore, it is a reliable evidence. Thereupon he inferred that the shop in question is vacant, and, passed the order accordingly. Petitioner thereupon preferred Revision No. 76 of 2004 which has been dismissed by Revisional Court vide judgment dated 23.12.2004. 4.
2 has stated that shop in question is vacant and petitioner has another shop in Mohalla Lal Imli, Shahjahanpur, therefore, it is a reliable evidence. Thereupon he inferred that the shop in question is vacant, and, passed the order accordingly. Petitioner thereupon preferred Revision No. 76 of 2004 which has been dismissed by Revisional Court vide judgment dated 23.12.2004. 4. The Revisional Court, however, has relied on some evidence, Paper No. 63-C, which is said to be an affidavit of petitioner in which he allegedly has said that he has no tenancy in the shop in question and the Board etc., if found thereat, are all manufactured. A copy of the alleged affidavit has been placed on record by respondent no. 2 as Annexure CA-2 to his counter affidavit referring the same in para 15 of the Counter Affidavit in reply whereto in para 8 of rejoinder affidavit the petitioner has clearly said that the said document is a forged one since the petitioner has not signed any such document. 5. I enquired from learned counsel appearing for respondent no. 2 that such affidavit, if was available before RCEO, why it was not considered and referred to in the impugned order dated 2.12.2004 passed by RCEO since there is no reference of any such document in the order of RCEO to which Sri Banerji, appearing for respondent no. 2, could not reply at all except of referring to revisional order. 6. There is one more aspect which is relevant. The proceedings in question were initiated in the year 2004 inasmuch Rent Control Inspector visited premises on 16.4.2004 and till that date I do not find that there was any occasion for petitioner to file any such affidavit. Respondent no. 2 also could not tell as to before whom the alleged affidavit, Annexure CA-2 was filed by petitioner. The said document does not mention any authority before whom the said affidavit has been filed and its date is also not legible in the photocopy, but it is said to be of 9.10.2003. Petitioner has specifically disowned such document and has stated the same to be a forged and fictitious one as is evident from para 8 of his affidavit. The aforesaid document also was not referred to by RCEO, meaning thereby it was not available before it. 7.
Petitioner has specifically disowned such document and has stated the same to be a forged and fictitious one as is evident from para 8 of his affidavit. The aforesaid document also was not referred to by RCEO, meaning thereby it was not available before it. 7. It is not, thus, very clear as to when and in what circumstances, the aforesaid document came to be considered by the Revisional Court so as to authorize and enable Revisional Court to look into the said document and record a finding of fact on his own which is not there in the order passed by RCEO. The scope of review by the Revisional Court is very limited and it cannot record its own findings of facts looking into any material coming before it for the first time, which was not before RCEO, since he has not referred to any such document. 8. At this stage, in my view, it would be difficult for this Court to find out as to from where this document emerged and who filed it, and, at what stage it was placed before the Court so as to be considered by Revisional Court. This aspect requires investigation into facts. Therefore let this matter be re-considered by RCEO. 9. Writ petition is allowed. Impugned allotment order dated 2.12.2004 and revisional order dated 23.12.2004 (Annexures 11 and 14 to writ petition) are hereby set aside. 10. Matter is remanded to RCEO to re-consider and also to make investigation to find out wherefrom the aforesaid document, i.e., alleged affidavit of petitioner dated 9.10.2003 (Annexure CA-2 to the counter affidavit filed by respondent no. 2), came on record, who filed it, and, its reliability etc. and thereafter it shall proceed with the matter and decide in accordance with law. The above exercise shall be completed by RCEO within six months from the date of production of a certified copy of this order before him. 11. Petitioner shall also be entitled to cost which is quantified to Rs. 5,000/- against respondents 1 and 2. _____________