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2015 DIGILAW 1910 (ALL)

Pawan Kumar v. Additional District Judge IV

2015-07-15

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal, J. (C.M. Application No.39168 of 2015) Heard Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mohd. Aslam Khan, learned counsel for the applicants-petitioners and Shri S.K. Mehrotra, learned counsel for the opposite party-landlord on the application for modification/ clarification of the order dated 16.12.2014 passed by this Court in Writ Petition No.60 (RC) of 2006, whereby the writ petition was disposed of with the direction to the opposite party landlord that after sanction of map, he will intimate in writing to the petitioners-tenant, who shall vacate and hand over peaceful possession of the building in their occupation to the opposite party landlord within a month and the opposite party landlord shall raise new construction in accordance with the sanctioned map within a year. It was kept open for the petitioners to apply before the District Magistrate under Section 24 of the U.P. Act No.13 of 1972 for re-allotment and fixation of rent. 2. Counter affidavit and rejoinder affidavit have been exchanged and I have heard learned counsel for the parties. 3. Shri Mohd. Arif Khan, learned Senior Advocate appearing on behalf of the applicants-petitioners submits that the applicants-petitioners are at present in occupation of a shop on the ground floor and on the front side of the building and they have an apprehension that after its demolition and reconstruction, the opposite party landlord may not give them the shop on the ground floor and on the front side of the building. Therefore, the order dated 16.12.2014 may be modified to the extent that a direction be issued to the opposite party landlord to give possession of a newly constructed shop situated on the ground floor and on front side of the building. 4. Shri S.K.Mehrotra, learned counsel for the opposite party landlord submits that the writ petition has already been disposed of in accordance with law and no clarification or modification of the order is required. The modification sought by the applicants-petitioners if allowed, would amount to reopening of the case which is not permissible in view of the law laid down by Hon'ble the Supreme Court. Shri Mehrotra further submits that as per the settlement he is ready to give possession of the newly constructed shop to the petitioners. 5. The modification sought by the applicants-petitioners if allowed, would amount to reopening of the case which is not permissible in view of the law laid down by Hon'ble the Supreme Court. Shri Mehrotra further submits that as per the settlement he is ready to give possession of the newly constructed shop to the petitioners. 5. Having heard learned counsel for the parties and having gone through the judgment and order dated 16.12.2014, I do not find any sufficient reason to clarify or modify the order because it has been kept open for the applicants-petitioners to apply before the District Magistrate, who in accordance with the provisions of Section 24 of the Act No.13 of 1972 shall re-allot the building and fix the rent in accordance with law. Since the District Magistrate was not a party in this writ petition, therefore, no such direction can be issued to him. However, it is provided that the applicants-petitioners while applying for re-allotment and fixation of rent, may claim re-allotment of the shop at the same site where their present shop is situated and the District Magistrate while passing the order on the application for re-allotment and fixation of rent may consider it in accordance with law. 6. With the aforesaid observations, the application for modification/ clarification stands disposed of.