Bansi Lal vs IVth Additional District Judge and Others

S.N. Saxena, J.—The Petitioner has claimed to be the tenant of the accommodation in dispute, a shop, has challenged the order dated 24-12-f993 passed by IVth Addl. District Judge, Saharanpur is rent control revision No. 45/90 Prem Prakash v. Bansi Lal and others whereby he allowed the revision application and quashed the order dated 1-3-1990 passed by the learned prescribed authority and also declared that the revisionist, the landlord was entitled to get possession of the property under consideration.

There has been long standing litigation between the parties regarding the said shop and, thereafter, fresh agreement of tenancy in the year 1988 allegedly had come into existence in between the tenant and the landlord. The rent control and eviction officer admittedly had not allotted the shop under consideration in favour of Petitioner, Prem Prakash.

The landlord had taken recourse to the proceedings for release of the shop in dispute which had become final between the parties, Annexure No. 2 of the writ petition is the copy of the judgment given by the learned IVth Addl. District and Sessions Judge, Saharanpur on 8-8-1989 whereby he had allowed rent control revision No. 352/84 after setting aside the Order of the prescribed authority. The prayer of the landlord for release of, the accommodation under consideration in his favour u/s 16 of U.P. Act No. 13 of 1972 was allowed. The aforesaid order was not challenged by the tenant.

The landlord, thereafter, took recourse to proceeding for recovery of possession before "the prescribed authority which however had rejected his prayer for delivery of possession, vide its order dated 1-3-1990 (Annexure No. 6 to this writ petition. Its perusal showed that the learned prescribed authority had arrived at the conclusion that the landlord was already in possession of the shop under consideration and therefore, there was no question of taking recourse again for ejectment proceeding against the tenant. Feeling aggrieved, the landlord preferred rent control revision No. 45/90 against the said order of the prescribed authority which as mentioned above, was allowed by the learned IVth Addl. District Judge, Saharanpur. The tenant, thereafter, preferred this writ petition in which he has prayed for quashing of the impugned order dated 24-12-1993 and also for issuance of a writ order or direction in the nature �of mandamus directing the Respondents not to interfere in his possession based on subsequent letting of the shop in dispute by the landlord to him. I have gone through the impugned judgment and order and I find that the learned revisional Court took the correct own assertion of the tenant that he was in possession of the shop in dispute and wrongly held that the landlord had already get possession of the said shop. It appears highly improbable and unnatural also that inspite of the litigation between the parties for the last about 23 years, the tenant would have himself handed over possession of the shop in dispute to the landlord. The revisional Court, therefore, rightly held that the landlord was entitled to get possession of the shop in dispute.

The contention of the Petitioner that he had become tenant of the shop in dispute by means of the subsequent letting evidently was incorrect. As discussed above, in the absence of the allotment order from the competant authority, the possession of the Petitioner was nothing more than that of a licencee whose licence had been revoked and he thus had become a trespasser. Learned counsel for the Petitioner himself relied upon Full Bench decision of this Court, Nootan Kumar v. IInd Addl District Judge, Banda 1993 (2) ARC 204 in which it was held that no valid order of tenancy, in the absence of allotment order, could be passed under the provisions of the Act, 13 of 1972. The possession of the Petitioner, therefore, could not be deemed to be that of a tenant. He has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India but to my mind, this jurisdiction cannot be extended for protection of the possession of a trespasser against whom the order of the ejectment had become final. The landlord; therefore, was entitled to get possession of the shop in dispute. This writ petition was, liable to be dismissed summarily at the stage of admission. It may also be observed that it will amount to misuse of this Court''s process if under Article 226 of the Constitution of India, this Court protected illegal possession of trespassers.

The writ petition is dismissed summarily at the stage of admission.