Arvind Shanker Bansal vs Mahendra Vikram Vir Singh and Another

J.C. Gupta, J.—Heard Shri B.N. Agrawal for the petitioner and Shri H.S. Nigam for the contesting respondent No. 2.

This is landlord''s writ petition.

The dispute relates to House No. 27 (old No. 22) situated in Mohalla Gandhi Nagar, Orai, of which petitioner is admittedly the landlord. It is stated in the writ petition that the said house was constructed in the year 1985 and a portion thereof was let out to the Leprosy Department which vacated the same on Zl7

1994. Respondent No. 2 succeeded in procuring a collusive order of allotment in his favour by the order dated 7101994 made by respondent No. 1 and on the same day the said respondent also succeeded in obtaining possession. Respondent No. 2 applied for allotment in the capacity of President, District Samajwadi Party, Orai, and it is alleged in the writ petition that the house in question has been grabbed by respondent No. 2 under the colour of allotment order, which was made in total disregard of the provisions of the Act and without following procedure prescribed under Rules. At no stage of the proceedings before the Rent Control and Eviction Officer upto the time of taking possession, the landlordpetitioner was served any notice whatsoever. After coming to know of the said order of respondent No. 1, the petitioner filed rent revision No. 53 of 1994 which was heard by the District Judge and the same was allowed by the order dated 2471995. The District Judge was pleased to set aside the order of allotment made in favour of respondent No. 2 and directed the Rent Control and Eviction Officer to proceed in the matter afresh according to law and the parties were directed to appear before the said officer on 3171995. After the order of the revisional Court, the petitioner made an application under Section 18(3) of the Act before Rent Control and Eviction Officer on 791995 restoration of possession through police help but the same has not yet been disposed or by respondent No. 1 as first of all respondent No. 2 was invited to file objection and thereafter on an application made by respondent No. 2 directed the parties to adduce evidence by passing the impugned order. According to the petitioners contention, the provisions of Section 18(3) are mandatory and there was neither any requirement nor the necessity of taking any evidence and the respondent No. 1 has been allowing respondent No. 2 to remain in unauthorised occupation of petitioner''s house despite the fact that the order of allotment made by respondent No. 1 in his favour has been cancelled in revision by the order of the District Judge. The petitioner has, thus, prayed for a writ of mandamus directing the respondent No. 1 to put back the petitioner in vacant possession of the house in dispute after dispossessing the respondent No. 2.

The counteraffidavit it is not disputed that the order of allotment made in favour of respondent No. 2 has been set aside by the revisional authority.

Learned Counsel for the petitioner argued before this Court that the impugned order of respondent No. 1 is wholly illegal and without jurisdiction as in the circumstances of the present case neither any evidence was required to be adduced nor the same was necessary in the proceedings initiated on an application under Section 18(3) of the Act. He further argued that the whole object of passing the impugned order was simply to allow the respondent No. 2 to continue to remain in occupation unlawfully despite the fact that the order on the basis of which he came to occupy the building, has been cancelled by the District Judge in revision. It was submitted that once the order of allotment has been cancelled by the revisional Court respondent No. 2 has no right to remain in occupation of the disputed house and the petitioner is entitled to the restitution as fie is admittedly the owner and landlord of the disputed house. Shri H.S. Nigam, learned Counsel for the respondent No. 2, on the other hand contended that the revisional Court has not specifically set aside the order of Rent Control and Eviction Officer, whereby vacancy was declared nor under law he could do so as he has no power to go into the question of validity of the said order, therefore, after the remand the only course open to the Rent Control and Eviction Officer is either to make an order of release or an order of release or an order of allotment and since no person other than respondent No. 2 has applied for allotment, the house in question is liable to be allotted to him again and, therefore, in the circumstances he could not be dispossessed in the proceedings initiated under 18 (3) of the Act. It was further contended that the writ petition is premature as no final order on the application of the petitioner made under Section 18(3) of the Act has yet been made by respondent No. 1.

It is not disputed before me that the order of the revisional Court, whereby the order of allotment made in favour of respondent No. 2 was set aside, has become final as the same was never challenged by the respondent No. 2. When the said order of allotment had been set aside, the petitioner was entitled to make an application under Section 18(3) of the Act and in that event the District Magistrate was duty bound to Act as per the provisions of Section 18(3). Section 18(3) of the Act runs as follows:

�18(3). Where the order under Section 16 or Sec. 19 is rescinded, the District Magistrate shall, on an application being made to him on that behalf place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose use or cause to be used such force as may be necessary.�

A bare look of the above provision makes it clear that it embodies in itself the provision of restitution. Section 18(3) is a salutory provision of law with a view to shorten litigation and to afford speedy relief to those who have been deprived of their rights under a wrong order, by restoring to them their rights. The doctrine of restitution, being an integral part of the administration of justice is based upon the principle that acts of the Courts should injure no one. If the order on the basis of which a party has received some benefits, is rescinded or cancelled subsequently, the law raises an obligation on that party who has been benefited by that order, to make restitution to the other party for what he had lost. Any wrong done to a party due to an illegal order of the Court has to be remedied, once that order is cancelled or rescinded. Acts of the Court should not be allowed to work injury no the suitors nor any party could be permitted to enjoy fruits and take unfair advantage on the basis of an erroneous order despite the order having become nonexistent on account of its cancellation or supersession by superior Court.

In the present case as per the findings recorded by the revisional Court, at no stage of the proceedings, the petitionerlandlord was served with any notice whatsoever and he was deprived of his right of hearing and principle of natural justice was violated. It is further interesting to note that the petitioner was dispossessed and respondent No. 2 was put in occupation of the house in question on the same day without following the procedure prescribed in Rule 14, which provides that an order in FormC shall be served upon the person or persons found in unauthorised occupation of the building directing him to vacate the same and deliver vacant possession thereof to the person named in the order within such period as may be specified in the order which shall in no case be less than a week from the date of service of order upon him and on his failure to comply with the order within the time allowed, the District Magistrate shall issue an order to the officerincharge of the police station in FormD directing him to get the building vacated and put the allottee or the landlord as the case may be in possession of the building. Undisputedly in the instant case no notice in FormC was served upon the landlordpetitioner and possession was taken by respondent No. 2 on the same day on which the order of allotment was made. Under Rule 14 the landlord was entitled to get atleast one week''s time from the date of service of the said notice. This was obviously with the object to give landlord a reasonable time within which he may decide either to submit to the allotment order or to file objection or to take other legal remedy as may be available to him under the Act. It has been held in the cases of Jai Prakash Vashishth v. Addl. District Magistrate (E) (Delegated Authority), Meerut and Ors., 1995 (1) ARC 476; Mumtaz Ahmad v. VIth Addl. District Judge, Kanpur Nagarand Ors., 1995 (1) ARC 552 and Adhyaksha, Zila Bhartiya Janta Party, Bareilly and Anr. v. VIIth Addl. District Judge, Bareilly and others, 1996 (1) ARC 378, that where possession is obtained in violation of mandatory provisions of the Act and Rule 14 of the Rules framed under the Act that will amount to house grabbing and in all these cases, this Court directed the owner and landlord of the premises to be put back in occupation of his property immediately.

In the present case the sequence of events leave no room of doubt that the Rent Control and Eviction Officer made the order of allotment in favour of the respondent No. 2 in total disregard of the mandatory provisions of the Act without following the procedure established by law and also allowed the respondent No. 2 to occupy the building in question of the petitioner on the same day on which the order of allotment was made. It is also noteworthy that when the landlord succeeded in getting the order of allotment cancelled from revisional Court, he is being put to an irreparable injury though he has moved restitution application under Section 18(3) of the Act before the respondent No. 1 on 7 91995 yet the respondent No. 1 is postponing the matter of restitution for one reason or the other in an arbitrarily manner. No person howsoever high he may be in status and position is above law. The authorities, specially those discharging judicial functions, are supposed to be guided by law of the land rather than be influenced by any extraneous consideration. The Rent Control and Eviction Officer under the Rent Control Act discharges judicial functions and, therefore, he in legal terminology is described as a quasijudicial authority, though strictly speaking he is not designated as a Judge nor he presides over a Court but he is empowered by law to give a definite judgment affecting the rights of the parties.

P.L. Ramanatha Aiyer in his book �The LAW LEXICON� 2nd Edition describes the meaning of the word ''Judge'' as denoting not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, Civil or Criminal, a definite judgment.

In the case of Province of Bombay v. Kushal Das S. Advani, AIR 1950 SC 222, the Supreme Court with approval made a reference to the following observations of May CJ. in Ragina (John M'' Evoy) v. Dublin Corporation, (1978) 2 L.R. Ir. 371 at page376:

�It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection, the term ''judicial'' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial Act seems to be an Act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others.�

This definition was approved by Lord Atkinson in Frame United Brewaries Co. Ltd. v. Bath Justices, (1926) AC 586, as the best definition of a judicial Act as distinguished from an administrative Act.

An order will be a judicial or quasijudicial order if it is made by a Court or a Judge, or by some person or authority who is legally bound or authorised to Act as a Court or a Judge. To Act as a Court or a Judge necessarily involves giving an opportunity to the party, who is to be affected by an order to make a representation, making same kind of inquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of a controversy, before any decision affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a Court of law and it may be very summary, but it must contain the essential elements of judicial procedure.

The requisites of a judicial decision or judicial Act are that a competent authority not being necessarily a Court in the ordinary sense, has power to give a binding and authoritative decision, after hearing and upon consideration of evidence of the parties and imposing liabilities or affecting the right of the parties.

It, therefore, cannot be doubted that the Rent Control Authorities under the Act discharge judicial functions and their decisions partake the character of ''Judicial decisions''. Such authorities; therefore, are expected to take decisions with a judicial approach. The expression ''judicial approach'' postulates that the authority m arriving at the decision or taking action must be found to Act fairly and justly. �Fairness� is the backbone of judicial decisions, and to be fair one must Act impartially. An impartial man is one who is not biased in favour of one party more than another ; who is indifferent, unprejudiced and disinterested; equitable and just. An order which is actuated with malice, prejudices or has been arrived at under influence or pressure is not a fair and just order. In legal phraseology, it is described as ''invalid'' having no sanctity attached to it. It is not to be forgotten that from Justice, as a fountain, all rights flow. The judgment or order will be fair and just only if the same is arrived at with an open mind after following strictly what has been laid down in law, as the maxim A'' verbis legis non est recedendum'' says that from the words of the law there must be no departure. Law is the rule of right and whatever is contrary to law is an injury and in turn what is contrary to reason and good conscience and fairness is contrary to law. The gist of whatever has been said above is that the law is supreme and has to be followed by authorities discharging judicial or quasijudicial functions, irrespective of caste, creed, affection, animosity or any extraneous consideration. They do not possess unguided or arbitrary powers Le. powers not defined under law. Where the law enjoins upon them to follow a particular procedure and if that procedure is mandatory they are bound to obey and Act as per the mandate of law. They cannot say a complete goodbye to the requirement of law merely because they are confronted with persons of high status. It is their duty to uphold the law and follow the procedure prescribed for doing a thing in a particular manner and they cannot be permitted to take shelter behind the plea that the requirement of law couldnot be made because the persons they were faced with occupied a high place in an organisation or a political parry or was a high ranking officer or a top politician or leader. The Officer, who exercises judicial or quasijudicial functions must be of a sterner stuff and should Act independently without fear and favour. He should neither allow his personal prejudices or bias nor external influence to go into the decision making as they tend to corrupt the ability to exercise independent judgment. Influence or fear have no place in the dispensation of justice. Bias is another limb of principle of natural justice and even administrative actions have to be fair whenever they bring about adverse civil consequences. The orders made by the officers under political influence or pleasure, or with the hope of getting some reward or prize for themselves from the persons in whose favour orders are made, are no orders in the eye of law and if such orders are allowed to be maintained by superior Courts, the rule of law will collapse and a chaotic situation resulting in an anarchy will soon be reached, which may bring into a �JUNGLE RAJ� rather than a civilised Republic as was thought and visualised by the makers of our Constitution.

In the instant case, the respondent No. 1 not only passed a wholly illegal and invalid order in favour of respondent No. 2 against mandatory provisions of law without giving any opportunity of hearing to the petitioner and also allowed the respondent No. 2 to occupy the building in question and thereby divested the petitioner from the property in question but he is further allowing that injustice to be perpetuated by allowing the respondent No. 2 to continue in occupation without any rights, which cannot be allowed to continue any more. In the peculiar circumstances of the case and finding that an innocent citizen is still being deprived of his legitimate right of having the use of his property, from which he was illegally and in a clandestine manner ousted, this Court cannot shut its eye and feels that it is a fit case where it should direct the District Magistrate to place the parties back to the same position as they occupied prior to the Kissing of the order of allotment. The District Magistrate is, therefore, directed to take immediate steps for making compliance of this order and decide the petitioner''s application under Section 18(3) within a week from the date of a certified copy of this order is produced before him.

After when the compliance of this order is made, the District Magistrate /Rent Control and Eviction Officer, respondent No. 1, shall also decide the matter of allotment/release, as the case may be, expeditiously preferably within six weeks.

With these observations, this writ petition is disposed of. Petition disposed of.