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2014 DIGILAW 1986 (ALL)

Ram Kumar Sisodia v. Ravindra Nath Jain

2014-07-08

PANKAJ MITHAL

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JUDGMENT Pankaj Mithal, J. 1. Heard Sri Om Prakash, learned Counsel for the petitioner and Sri P.C. Jain, learned Counsel for the respondent. Respondent is the owner and landlord of the house No. 25/156, Gandhi Nagar, Agra. He applied for release of it under section 16 of U.P. Act No. 13 of 1972 on the ground that petitioner is occupying it unauthorisedly. 2. The Rent Control and Eviction Officer vide order dated 27.8.04 declared the property to be vacant under section 12 of the Act as the petitioner was found to be in occupation without any order of allotment but the release application was rejected. 3. The part of the aforesaid order rejecting the release application was challenged by the respondent by filing a revision and the same was allowed and the matter regarding consideration of the release application was remanded to the Rent Control and Eviction Officer. On remand the Rent Control and Eviction Officer by the impugned order dated 20.5.2006 has directed for the release of the property in favour of the respondent. 4. At this stage aggrieved by the order declaring the vacancy as well as the order of release, petitioner has preferred this writ petition. 5. The submission of Sri Om Prakash, learned Counsel for the petitioner is that the order of vacancy is illegal. The petitioner is not unauthorised occupant. He has inherited the tenancy from his father who was occupying it as tenant since before 5th July, 1976. 6. The Rent Control and Eviction Officer has declared the property to be vacant on the ground that the petitioner is in occupation of it without an order of allotment. He has failed to prove that his father was a tenant in it since before 5th July, 1976 in which case the tenancy of his father if any would have stood regularised. 7. Admittedly, the petitioner as well as his father both had no order of allotment in their favour. Therefore, both of them cannot be considered to be the legal occupant of the property. Since no evidence was adduced to prove that the father of the petitioner was a tenant before 5th July, 1976 is tenancy never stood regularised. 8. 7. Admittedly, the petitioner as well as his father both had no order of allotment in their favour. Therefore, both of them cannot be considered to be the legal occupant of the property. Since no evidence was adduced to prove that the father of the petitioner was a tenant before 5th July, 1976 is tenancy never stood regularised. 8. Sri Om Prakash, learned Counsel for the petitioner contends that the father of the petitioner died in the year 1984 and in the death certificate his place of death/address has been mentioned as that of the property in question which amply demonstrate that he occupied it in 1984. 9. The argument is not acceptable. The father died in the year 1984. The release application was filed in the year 1995. The death certificate was obtained in the year 1996 after the filing of the release application therefore, the Rent Control and Eviction Officer held that it has been manipulated and procured for the purposes of contesting this matter and is not worth reliable. The Rent Control and Eviction Officer is not in error in discarding the death. Even otherwise it does not prove the tenancy of petitioner's father on or before 5th July, 1976. 10. Sri Om Prakash has relied upon an agreement to sell of the year 1975 alleged to have been executed by the father of the respondent in favour of the petitioner's father for the sale of the house in dispute. The said agreement also contains the address of the petitioner's father as that of the house in question. On its basis it has been contended that he was living in it in the year 1975. 11. The Rent Control and Eviction Officer on consideration of the said agreement held that the agreement is on a stamp paper which has been purchased from stamp vendor Ram Niwas Gupta, who had died long before the date of sale of stamp paper. Thus, the agreement was held to be unreliable. There appears to be no error or illegality on part of the Rent Control and Eviction Officer in disbelieving the said agreement. 12. Thus, the agreement was held to be unreliable. There appears to be no error or illegality on part of the Rent Control and Eviction Officer in disbelieving the said agreement. 12. In view of the aforesaid facts and circumstances, as the petitioner was in occupation of the house without an order of allotment and has failed to prove that his father was occupying it as tenant since before 5th July, 1976, there is no devolvement of tenancy upon him. He is an unauthorised occupant. 13. Accordingly, Rent Control and Eviction Officer committed no error in declaring the vacancy. 14. In challenging the order of release, the submission of learned Counsel for the petitioner is that the Rent Control and Eviction Officer has passed the release order in a mechanical way without considering the order of remand passed by the Revisional Court as no reasons have been recorded for allowing the release application. 15. Sri P.C. Jain, has objected to the challenge of the order of release by the petitioner who is an authorised occupant. He submits that an unauthorised occupant has no right to challenge the order of release. 16. A Division Bench of this Court in Ajay Pal Singh v. District Judge, Meerut and others 2008 (71) ALR 655 (SC), relying upon certain decision of the Supreme Court has observed that it is settled law that the tenant or a prospective allottee has no locus to challenge the release order by way of revision. If he has no locus to challenge it in revision he cannot be permitted to challenge in directly by way of a writ petition. 17. It is well acknowledged that a prospective allottees and an unauthorised occupant has no right to intervene and participation in proceeding for release under section 16 of the Act. The necessary corollary of it is that he cannot challenge the order of release. 18. In view of aforesaid legal position as the petitioner has been declared to be unauthorised occupant he has no right to challenge the order of release. Accordingly, the writ petition fails on both the counts and is dismissed. No order as to costs.