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2018 DIGILAW 783 (ALL)

BALESHWAR SINGH v. DISTRICT JUDGE

2018-04-03

SANGEETA CHANDRA

body2018
JUDGMENT : Hon’ble Mrs. Sangeeta Chandra, J.—This writ petition has been filed under Article 226 of the Constitution of India praying for a direction to the Revisional Court i.e. the Court of District Judge, Etawah to decide the Revision filed by the petitioner against the order dated 9.3.2018 passed by the Rent Control and Eviction Officer/City Magistrate, Etawah releasing the property in question in favour of the land-lord i.e. Trust Dau Ji Maharaj and Mahadev Ji Maharaj. 2. It has been submitted by the learned counsel for the petitioner that initially an allotment order was passed in favour of the petitioner as the erstwhile tenant and the Trust had not informed the Rent Control and Eviction Officer about the transfer of the erstwhile tenant and his moving out of the property in question. This allotment order was contested by the erstwhile tenant Shri Prakash Sharma in Revision and the Revision of Shri Prakash Sharma was allowed by the learned Additional District Judge by his order dated 16.9.1985 and the order declaring vacancy and allotment in favour of the petitioner was quashed and the matter remanded to the Rent Control and Eviction Officer for deciding the question of vacancy afresh. 3. The petitioner approached this Court by filing Civil Misc. Writ Petition No. 13864 of 1985, which was dismissed by this Court on 20.11.1985, but with an observation that the Rent Control and Eviction Officer shall proceed to decide the proceedings expeditiously and in case, it is found by him that vacancy exists, then it shall consider the application for allotment. 4. In pursuance of the remand order, a fresh vacancy was declared on 12.8.1987 and the application of outgoing tenant for restoration of possession was rejected. Shri Prakash Sharma thereafter filed one Civil Misc. Writ Petition No. 16424 of 1987, wherein initially interim order was granted staying further proceedings for allotment, but later on the said writ petition was dismissed for non-prosecution on 9.7.2004. 5. The petitioner has been in possession of the disputed property since 1980 and was continuing in possession even after rejection of application of restoration of possession filed by outgoing tenant Shri Prakash Sharma. 6. It has been submitted by the learned counsel for the petitioner that initially a dispute was between him and the outgoing tenant and the land-lord i.e. the Trust kept quiet for a long time till 2013. 6. It has been submitted by the learned counsel for the petitioner that initially a dispute was between him and the outgoing tenant and the land-lord i.e. the Trust kept quiet for a long time till 2013. In 2013, the Trust moved an application for release of the property in question and filed an application before this Court under Article 227 of the Constitution of India No. 5507 of 2016 (Trust Dau Ji Maharaj adn Mahadev Ji Maharaj and another v. Rent Control and Eviction Officer and another), which was disposed of on 5.8.2016 by this Court with a direction to the Rent Control and Eviction Officer to proceed and decide the release application in accordance with law as expeditiously as possible within a period of three months, provided there is no legal impediment in doing so. 7. The petitioner also filed an application under Article 227 of the Constitution of India No. 7323 of 2016 (Baleshwar Singh v. Rent Control and Eviction Officer/City Magistrate and 2 others), wherein he contended that the vacancy declared on 12.8.1987 against the erstwhile tenant Shri Prakash Sharma had attained finality after dismissal of the writ petition filed by the erstwhile tenant on 9.7.2004. Therefore, a suitable direction be issued to the Rent Control and Eviction Officer for considering his application for allotment. This Court disposed of the application on 22.9.2016 with a direction to the Rent Control and Eviction Officer to proceed and consider the allotment application of the petitioner, if there is no other legal impediment, as expeditiously as possible say within a period of three months. 8. It has been submitted by the learned counsel for the petitioner that despite these observations made by this Court, the Rent Control and Eviction Officer kept the application of the petitioner for allotment pending, whereas he decided the release application moved by the land-lord by the order dated 9.3.2018 in favour of the land-lord. 9. It has been submitted that against the order passed by the Rent Control and Eviction Officer, the petitioner filed a Revision on 21.3.2018, which was admitted by respondent No. 1, who called for the record from the learned Court below, but did not pass any order on the Stay Application and fixed a long date i.e. 23.5.2018 for hearing the matter again on interim relief. In the meantime, respondent No. 2 on 12.3.2018 issued Form C asking the petitioner to vacate the house in dispute by 22.3.2018. Thereafter, respondent No. 2 also issued Form D on 26.3.2018 directing the Inspector Incharge of the Police Station Kotwali, Etawah to submit a compliance report within three days with respect to vacating the petitioner forcibly in terms of the release order being issued in favour of the land-lord. 10. Learned counsel for the petitioner has submitted on the basis of judgment rendered by Hon’ble Supreme Court in Mool Chand Yadav and another v. Raza Buland Sugar Company, 1982 (3) SCC 484 , that when the Revision was admitted by respondent No. 1, it was incumbent upon him to also stay the operation of the order, which was impugned in the said Revision, as no interference in the impugned order would lead to serious civil consequences. The interim order ought to have been passed in order to preserve the situation. 11. I have perused the judgment rendered by the Hon’ble Supreme Court in Mool Chand Yadav (supra), wherein the Hon’ble Supreme Court had observed that if an order is challenged and the appeal is pending, then “judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted.” 12. Learned counsel for the respondent, on the other hand, has pointed out that the petitioner has been in possession of the property in dispute since 1980 without any allotment order being passed in his favour and without remitting a single penny as rent to the land-lord. He has been enjoying the property in question for more than 40 years and now since, the release application has been moved and allowed by the Prescribed Authority, no right inheres in the petitioner to ask for a stay of the operation of the order of the Prescribed Authority as it has been held by the Full Bench of this Court in Talib Hasan and another v. Ist Additional District Judge, Nainital and others, 1986 (1) ARC 1 (FB), that a prospective allottee has no absolute right. It is contingent upon, firstly the accommodation being vacated and secondly, the building being available for allotment. It is contingent upon, firstly the accommodation being vacated and secondly, the building being available for allotment. Rule 13(4) of the U.P. Rent Control Rules, as it stands was referred to by the Full Bench and it observed that Rule 13(4) provides that no allotment in respect of a building covered by an application under Section 16 (1)(b) shall be made unless such an application is rejected. The right of prospective allottee to have his application for allotment considered, hence, arises only after the rejection of the land-lord’s application under Section 16(1)(b) of the Act, for release of accommodation. The prospective allottee comes into picture only after disposal of the land-lord’s application for release under Section 16(1)(b) and, only if the same is rejected. 13. It has been submitted by the learned counsel for the respondent that the Revision itself was not maintainable as moved by the prospective allottee and it ought not to have been admitted by the Revisional Court. 14. Moreover, the learned counsel for the respondent has pointed out that the observations made by the Hon’ble Supreme Court in Mool Chand Yadav (Supra) relate to a statutory appeal being entertained and admitted and do not relate to a Revision. 15. Learned counsel for the respondent has pointed out Section 18(2) of the U.P. Act No. 13 of 1972, wherein there is an observation that the Revising Authority may confirm or rescind the final order made under sub-section (1) or may remand the case to the District Judge for rehearing and pending the revision, may stay the operation of such order on such terms, if any, as it thinks fit. 16. The discretion of the Revisional Authority remains intact, it may or may not stay the impugned order in the Revision and since the admission of the Revision was being seriously opposed by the Land-lord before respondent No. 1 as the Full Bench was cited also before the Revisional Court, the Revisional Court therefore did not feel it proper to grant interim order in favour of revisionist staying the operation of the impugned order. Form C and Form D have been issued by the Prescribed Authority only as a consequence of the order passed by it for release in favour of the land-lord and should not be interfered with at this stage. 17. Form C and Form D have been issued by the Prescribed Authority only as a consequence of the order passed by it for release in favour of the land-lord and should not be interfered with at this stage. 17. I have considered the arguments made by both the learned counsel for the parties and I have also gone through the judgment of the Full Bench in Talib Hasan (supra). This Court in J.P. Singh v. R.S. Ojha, 2014(8) ADJ 636 , has held that a prospective allottee has no right to file a Revision under Section 18 against a Release Order or even a Writ Petition challenging the Release Order. 18. I am of the considered opinion that the Revisional Court rightly exercised its discretion in not passing the interim order staying the operation of the order of release, although it admitted also the Revision. 19. Since, the petitioner has been asked by the Prescribed Authority to vacate the premises within ten days and he has not vacated the premises till date of hearing of this writ petition, this Court gives the petitioner another ten days’ time to vacate the premises. 20. The writ petition being devoid of merits is dismissed. 21. No order as to costs.