Anand Kumar vs Tulsi Ram

S.P. Mehrotra, J.—The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 2210 2003 (Annexure No. 7 to the Writ Petition) passed by the Prescribed Authority/J.M. Ist, Allahabad in M.P.A. Case No. 2 of 1999.

From a perusal of the allegations made in the Writ Petition, and the Annexures thereto, it appears that the petitioner filed a release application under Section 21(1) (a) of the U.P. Act No. XIII of 1972 (hereinafter also referred to as �the Act�) against the respondent in respect of the disputed accommodation, the details whereof are given in the judgment and order passed by the Prescribed Authority dated 1731992 referred to hereinafter. The said accommodation has hereinafter been referred to as �the disputed accommodation�.

The said release application was registered as P. A. Case No. 101 of 1991.

By the judgment and order dated 1731992 (Annexure No. 1 to the writ petition), the learned XIth Additional Chief Judicial Magistrate/Prescribed Authority, Allahabad allowed the said release application filed by the petitioner exparte against the respondent.

It further appears that thereafter, the petitioner filed an application under Section 23 of the Act for enforcement of the said order dated 1731992 passed by the Prescribed Authority, Allahabad. The said application filed under Section 23 of the Act was registered as Case No. 54 of 1992.

By the order dated 2111992 (in Form ''D''), the Prescribed Authority, Allahabad directed the Officerincharge of the Police Station, Muthiganj to deliver possession of the disputed accommodation to the petitioner. Copy of the said order dated 2 111992 has been filed as Annexure No. 2 to the Writ Petition.

It further appears from the averments made in paragraph No. 8 of the Writ Petition that in consequence of the said order dated 2111992, the respondent was evicted from the disputed accommodation by the police aid, and the petitioner was put in possession.

It further appears that thereafter, the respondent filed a recall/restoration application on 2121992 for setting aside the said order dated 1731992. The said recall/ restoration application was registered as M.P.A Case No. 116 of 1992.

It further appears that by the order dated 2081997, the Prescribed Authority allowed the said application for recall/restoration filed by the respondent, and set aside the said order dated 1731992, and restored the said P.A. Case No. 101 of 1991 to its original number.

It further appears that thereafter, the respondent filed an application under Section 144 of the Code of Civil Procedure in the said P.A. Case No. 101 of 1991 seeking restitution of possession of the disputed accommodation. The said application was registered asM.P.A. Case No. 31 of 1997.

It further appears that in the meantime, the petitioner moved an application No. 47B, inter alia, stating that he did not want to contest the matter, and he should be allowed to withdraw the said release application filed under Section 21(1)(a) of the Act.

From the averments made in paragraph No. 11 of the Writ Petition it appears that the said restitution application registered M.P.A. Case No. 31 of 1997 was allowed by the order dated 2741998, and the petitioner was directed to vacate the premises in question within 30 days.

From the averments made in paragraph No. 12 of the Writ Petition it appears that the said application No. 47B filed by the petitioner was allowed by the order dated 2741998 subject to the condition that in pursuance of the order passed in the said M.P.A. Case No. 31 of 1997, the petitioner would deliver vacant possession of the disputed accommodation to the respondent.

It further appears that thereafter, the petitioner filed an Appeal under Section 22 of the Act which was registered as Rent Control Appeal No. 79 of 1998.

By the judgment and order dated 2141999 passed by the learned IXth Additional District Judge, Allahabad the said Rent Control Appeal No. 79 of 1998 was dismissed. Copy of the said judgment and order dated 2141999 has been filed as Annexure No. 3 to the Writ Petition.

From the averments made in paragraph No. 14 of the Writ Petition, it further appears that the respondent filed another application for restitution of possession in pursuance of the order passed in M.P.A. Case No. 31 of 1997. The said application was registered as M.P.A. Case No. 2 of 1999.

It further appears that by the order dated 2912000, the said application for restitution (registered as M.P.A. Case No. 2 of 1999) was allowed by the Prescribed Authority.

Thereafter, it appears that the petitioner filed a Revision which was registered as Civil Revision No. 292 of 2000. The said Civil Revision No. 292 of 2000 was dismissed by the learned Additional District Judge, Court No. 6, Allahabad by the order dated 442003.

The petitioner thereupon, filed a writ petition before this Court, being Civil Misc. Writ Petition No. 17452 of 2003.

By the order dated 2342003, the said Civil Misc. Writ Petition No. 17452 of 2003 was dismissed by this Court. It was inter alia, directed as follows :

�Accordingly, the petition lacks merit and is dismissed. However, it is made clear that the petitioner shall not be evicted until 3062003�.

It further appears that pursuant to the said order dated 23 42003 passed by this Court in Civil Misc. Writ Petition No. 17452 of 2003, the Prescribed Authority /Judicial Magistrate, 1st, Allahabad passed an order dated 572003, inter alia, directing that the petitioner be evicted from the disputed accommodation and the respondent be put in possession thereof. Copy of the said order dated 572003 has been filed as Annexure No. 5 to the Writ Petition.

From the averments made in paragraph No. 19 of the Writ Petition, it appears that pursuant to the order dated 572003 passed by the Prescribed Authority / Judicial Magistrate, 1st, Allahabad, the Station Officer, Muthiganj, Allahabad submitted his report dated 1272003, inter alia stating that on visit to the spot the building was found to be not in existence, but only land was found on the spot; and that the information was received on the spot that the said building had been demolished by the petitioner, Anand Kumar. Copy of the said report dated 12 72003 has been filed as annexure No. 6 to the writ petition.

From the averments made in paragraph No. 20 of the Writ Petition, it appears that after the submission of the said report dated 1272003 by the Station Officer, Muthiganj, Allahabad an application (paper No. 96B) was filedon behalf of the respondent for deliver of possession.

From the averments made in paragraph No. 20 of the Writ Petition, it further appears that another application (paper No. 101B) was also filed by one Smt. Shiv Kali widow of Moti Lal inter alia, praying for staying the proceeding for the execution of the order for delivery of possession.

By the order dated 22102003, the learned Judicial Magistrate, 1st/Prescribed Authority, Allahabad allowed the said application (paper No. 96B) filed on behalf of the respondent for delivery of possession, and rejected the said application (101B) filed on behalf of the said Smt. Shiv Kali. The Station Officer, Muthiganj, Allahabad was directed by the said order dated 22102003 that the possession of the premises in question whatever be the position on the spot, be delivered to the respondent. Copy of the said order dated 22102003 has been filed as Annexure No. 7 to the Writ Petition.

Thereafter, the petitioner has filed the present Writ Petition seeking the reliefs mentioned above.

I have heard Sri Ashish Srivastava, learned counsel for the petitioner and Sri P.K. Kashyap, learned counsel for the caveatorrespondent.

It is submitted by Sri Ashish Srivastava, learned counsel for the petitioner that as is evident from the report of the Station Officer, Muthiganj dated 1272003, the building is no longer in existence and as such, the U.P. Act No. XIII of 1972 has ceased to apply in the present case.

It is submitted by Sri Srivastava, learned counsel for the petitioner that the U.P. Act No. XIII of 1972 is applicable only in respect of the building in existence. Once the building in question, the submission proceeds, has ceased to remain in existence, the U.P. Act No. XIII of 1972 has become inapplicable in the present case.

Therefore, it is submitted the direction for delivery of possession given by the Prescribed Authority in the said order dated 22102003 cannot be sustained.

Sri Srivastava, learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee, 2001(1) A.R.C. 325 (S.C.).

In reply, Sri P.K. Kashyap, learned counsel for the respondent submits that the petitioner himself got the building demolished and therefore, he was not entitled to take the benefit of his own wrong. It is further submitted by Sri Kashyap that having regard to the entire facts and circumstances, the Prescribed Authority by the order dated 22102003 rightly directed that possession of the premises in question, whatever be the condition on the spot would be given to the respondent.

Reliance in this regard has been placed on a decision of this Court in Sri Sheo Kishan Das v. The Prescribed Authority, Pilibhit and others, 1980 A.R.C. 369.

I have considered the submissions made by the learned counsel for the parties, and perused the record.

As is evident from the above narration of the fact, the petitioner got an exparte release order dated 1731992 against the respondent in respect of the disputed accommodation. It is also evident that by the order dated 2081997 the recall/restoration application filed by the respondent was allowed and the said order dated 1731992 was set aside, and the said P.A. Case No. 101 of 1991 was restored to its original number.

It is further evident that by the order dated 2741998, an application for restitution of possession of the disputed accommodation (registered as M.P.A. Case No. 31 of 1997), filed by the respondent, was allowed and the petitioner was granted 30 days'' time for vacating the premises in question.

It is further evident that by the order dated 2741998, an application (Paper No. 47B) filed by the petitioner for withdrawal of the said release application filed under Section 21(1)(a) of the Act was allowed subject to the condition that in pursuance of the order passed in the said M.P.A. Case No. 31 of 1997, the petitioner would deliver vacant possession of the disputed accommodation to the respondent.

It is thus, evident that not only the exparte release order dated 1731992 passed in favour of the petitioner in the said PA Case 101 of 1991 was set aside, but also the said release application itself was withdrawn by the petitioner. Therefore, the basis on which, the petitioner got possession of the disputed accommodation ceased to remain in existence. As such, the possession of the disputed accommodation was bound to be restored to the respondent.

It will also be seen that the petitioner challenged various orders passed in respect of the restitution of possession of the disputed accommodation in appeal and revision, but he could not succeed.

The petitioner also filed a Writ Petition being Civil Misc. Writ Petition No. 17452 of 2003 which was dismissed by the order dated 2342003 passed by this Court. It was however, made clear that the petitioner would not be evicted from the disputed accommodation until 3062003.

After the expiry of the said period on 3062003, the Prescribed Authority/Judicial Magistrate, 1st Allahabad again passed an order dated 572003, inter alia, directing for eviction of the petitioner and for putting in the respondent in possession.

Then the Station Officer, Muthiganj, Allahabad submitted his report dated 1272003 that the building was no longer in existence and there was only land on the spot. The Station Officer also stated that the information was received on the spot that the building had been demolished by the petitioner.

In my opinion, it is evident from the facts that the petitioner having failed in all his efforts to resist restitution of possession to the respondent, resorted to the tactics of demolishing the building in question itself.

In view of the aforesaid, I am of the view that the Prescribed Authority rightly passed the impugned order dated 22 102003.

In Sri Sheo Kishan case (supra) a Division Bench of this Court held as follows (paragraph Nos. 7, 8, 9, 13, 14 and 15 of the said A.R.C.):

�(7) Now it is evident from the perusal of the provisions of law contained in Section 34 of the Act and Rule 22 quoted above that the power to grant restitution under Section 144 of the Code of Civil Procedure, 1908 has not been specifically conferred on the Prescribed Authority the District Judge or the District Magistrate. Nevertheless the Prescribed Authority has been constituted as a quasi judicial body and has been entrusted with some of the functions of a Court as defined in the Code of Civil Procedure, 1908.

(8) It is not in controversy between the parties that the shop in dispute was a building when the application under Section 21 of the Act was moved against the petitioner by the respondent No. 2. The proceedings under the said provisions of law once they had commenced, could only be terminated by a final order passed by the Prescribed Authority. True it is that the application of respondent No. 2 was allowed by the Prescribed Authority by its exparte order dated April 23, 1976. However the said order was set aside on a motion made by the petitioner under clause (b) of Rule 22 of the Rules framed under the Act. The effect of the order dated August 4, 1975 setting aside the exparte order dated April 23, 1975 was to revive the proceedings under Section 21 of the Act and the Prescribed Authority retained jurisdiction to continue the said proceedings and to decide them finally. We are unable to subscribe to the view that it was open to any of the parties to the said proceedings to divest the Prescribed Authority of its jurisdiction by his unilateral act.

(9) Merely because the landlord respondent No. 2 after obtaining a surreptitious exparte order, managed to evict the petitioner and dismantle its roof, he is not entitled to claim any benefit of his own wrongful act. Under subsection (2) of Section 26 of the Act, a landlord is bound to keep a building under tenancy wind proof and water proof and this obligation can be enforced against him under Section 28 of the Act. The petitioner therefore, had an option to treat his tenancy as subsisting and compel the respondent No. 2 to relay the roof which he had hurriedly dismantled.

(13) Similar views have been expressed by Mahmood, J. in the case of Har Singh Das v. Mangal Dube. We are unable to find a better case where the ends of justice required the Court to pass an order of restitution in order to prevent the abuse of the process of the authority of the Prescribed Authority and to do justice to a tenant who had been wrongfully deprived of his property. In doing so, the Prescribed Authority would have been acting on the principles of law enunciated in the cases referred to above.

(14) The matter may looked into from another angle. The petitioner had been deprived of the possession of the premises on account of an order passed exparte against him by the Prescribed Authority for no fault of his. The maxim of law expressed in the Latin phrase �Aclus curiae nemini gravabit� namely that the error of the Court will cause no harm to a litigant, fully applies to the instant case. In Rogers v. Comptoird Escompte deparis, Lord Cairus, had admirably stated the law on the subject in the following words:

�One of the first and the highest duties of all the Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression act of the Court is used, it does not mean merely the act of the primary Court or of any intermediate Court of appeal but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case�.

In view of this statement of law which has never been called in question the Prescribed Authority was clearly in error in throwing its hands in despair and saying that it had no jurisdiction to repair the damage which had been done to the petitioner by an exparte order which had been passed against him without any notice.

(15) In the case of Gangadhar v. Raghubar Dayal, a Full Bench of his Court has held that Section 145 of the Code of Civil Procedure was not exhaustive of the power of the Court to grant restitution and that such restitution can also be granted in a suitable case in the exercise of the inherent powers vested in it. Even though Section 144 of the Code of Civil Procedure did not in terms apply to the proceedings before the Prescribed Authority the principles underlying Section 151 had been expressly made applicable to proceedings under the Act. In that view of the matter also, the Prescribed Authority was in error in refusing to exercise jurisdiction vested in it by law�.

In view of the above decision, it is evident that even if the building in question had been demolished by the petitioner still the Prescribed Authority would not be divested of his jurisdiction under the Act. The petitioner by his unilateral wrongful act could not take away the jurisdiction of the Prescribed Authority. It was open to the Prescribed Authority to direct for restitution of possession of the premises in question to the respondent, whatever be the condition on the spot. The impugned order dated 22102003 passed by the learned Judicial Magistrate, 1st/ Prescribed Authority, Allahabad does not suffer from any illegality or infirmity.

As regards the decision of the Vannattankandy Ibrayi case (supra) the facts of the said case were that the tenanted shop was razed to the ground due to accidental fire on 911990 ,and there remained only the vacant land. Their Lordships of the Supreme Court laid down as follows (Paragraph No. 25 of the said A.R.C.):

�(25) Coming to the next question whether the Civil Court was competent to entertain and try the suit filed by the respondent for recovery of possession of the vacant land. As already stated above, the tenancy in the present case was of a shop room which was let out to the tenant. What is protected by the State Rent Act is the occupation of the tenant in the super structure. The subject matter of tenancy having been completely destroyed the tenant can no longer use the said shop and in fact he has ceased to occupy the said shop. Section 11 of the State Rent Act does not provide for eviction of the tenant on the ground of destruction of the building or the super structure. Thus when there is no super structure in existence, the landlord cannot claim recovery of possession of vacant site under the State Rent Act. The only remedy available to him is to file a suit in a Civil Court for recovery of possession of land. In view of the matter the Civil Court was competent to entertain and try the suit filed by the respondent landlord �.

The said decision of the Supreme Court is not applicable to the present case, as in the present case, the building has not fallen down on account of any accident, but the same has been demolished by the petitioner himself.

Even otherwise, on the facts and circumstances of the case, I do not find it a fit case for interference in exercise of writ jurisdiction under Article 226 of the Constitution of India.

In view of the aforesaid discussion, I am of the opinion that the Writ Petition lacks merit,and the same is liable to be dismissed. The Writ Petition is dismissed accordingly.