Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3751 (ALL)

Sapru Saini v. Rakesh Agarwal

2016-11-18

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. -- Heard Smt. Rama Goel Bansal, learned counsel for the petitioner. 2. This writ petition arises out of an application under Section 23 of the U.P. Act No. 13 of 1972 for issuance of a Form D for obtaining possession of a shop wherefrom the petitioner was ordered to be evicted in a release application under Section 21 (1) (A) of the U.P. Act No. 13 of 1972. 3. It is submitted that the Prescribed Authority allowed the release application. The petitioner preferred an appeal, which was unfortunately dismissed for default. The landlord applied for execution of the order of the Prescribed Authority, whereupon, Form D was issued and actual physical possession was handed over to the landlord. 4. The petitioner applied for restoration of the case which application was allowed, the appeal was restored as was the interim order operating therein. 5. This order was passed on the same day on which the decree of the Prescribed Authority was executed and, therefore, the petitioner broke open the lock and reoccupied the shop in question. His status thereafter is one of an authorized occupant and, therefore, no Form D can be again issued for his eviction. An unauthorized occupant can only be evicted by means of a civil suit and not on an application under Section 23 of the Rent Control Act. This objection raised by the petitioner in the proceedings under Section 23 of the Act, has been wrongly and illegally turned down by the impugned order and, therefore this writ petition. 6. I have considered the submissions made by learned counsel for the petitioner and have perused the impugned order dated 24.10.2016. 7. The Prescribed Authority in this order has observed that the Form D had earlier been issued on 06.01.2014. This was duly executed on 16.01.2014 and the landlord was put in possession but on the very same day, the appellate Court in Misc. Case No. 43 of 2013, granted an interim order to the petitioner and therefore, the petitioner re-entered into possession. On the basis of the aforesaid facts, the Prescribed Authority has observed that the possession of the petitioner was not as an unauthorized occupant and was in pursuance of the interim order granted to him on 16.01.2014. Case No. 43 of 2013, granted an interim order to the petitioner and therefore, the petitioner re-entered into possession. On the basis of the aforesaid facts, the Prescribed Authority has observed that the possession of the petitioner was not as an unauthorized occupant and was in pursuance of the interim order granted to him on 16.01.2014. It has therefore categorically held that the possession of the petitioner in the aforesaid facts and circumstances was as a tenant and not as a unauthorized occupant. 8. I am in agreement with the reasoning given in the impugned order. 9. However, even if the contention of counsel for the petitioner that he is an authorized occupant, as has also been specifically averred in paragraph 12 of the writ petition, is accepted, the fact remains that the petitioner is before this Court in its equity jurisdiction under Article 226 of the Constitution of India. The petitioner, in my considered opinion, cannot be permitted to take benefit of an illegal action of his part especially in equity jurisdiction, wherein this court can always refuse to interfere, even with an illegal order, in case no equity lies in favour of person challenging it. 10. The impugned order therefore, in my considered opinion warrants no interference. 11. At this stage, learned counsel for the petitioner has submitted that some reasonable time be granted for vacating the shop in question. 12. In view of this alternative submission, it is provided that in case the petitioner files the usual undertaking before the execution court that he shall hand over peaceful possession over the shop in question to the landlord on the expiry of four months from today, the execution proceedings shall be kept in abeyance for this period of four months. 13. This undertaking must be filed within a period of one week from today. 14. Alongwith the undertaking, the petitioner must also furnish a bank draft for the rent for this period of four months calculated at the rate of Rs. 800 per month. It is further provided that in case any of the conditions specified above are not complied with, the petitioner shall not be entitled to any benefit under this order and the petition shall be deemed to have been dismissed, without any reference to this Court. 15. Subject to the above direction, this writ petition is disposed of.