Dr. Mahesh Kumar Agrawal vs Vijay Pal Goel

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

The Writ Petition No. 68271 of 2005 and connected writ petitions involve same question of facts between the same parties. The Writ Petition No. 30714 of 2003, has been filed by the landlord after Mahesh Kumar Agarwal challenging the order dated 22.5.2003, by which the Additional District Judge, (Court No. 1), Muzaffarnagar has passed an order of status quo against the eviction of the respondents-tenant, in which the petitioner landlord has challenged the proceedings of Rent Control Revision No. 2 of 2003, praying for quashing of the same.

The Writ Petition No. 54055 of 2002, has been filed by the tenant Vijai Pal Goel inter alia that he is tenant of shop in dispute No. 32/3, Dak-shini, Civil Lines, Arya Samaj Road, Muzaffarnagar since 12.6.1991 on the basis of written agreement between him and the landlord. It is being prayed in this petition for a direction in the nature of certiorari quashing the order dated 9.12.2002 passed by respondent No. 1 by Annexure -7 to the writ petition.

By order dated 9.12.2002, allowed the appeal of the landlord for delivery of possession of the shop in dispute and has directed the petitioner-tenant in that case to hand over the possession of the shop in dispute to the landlord latest by 25.12.2002 failing which the tenant shall be evicted from the shop in dispute by force.

The property in dispute is the shop 9 x 12 ft. situated in the city of Muzaffarnagar, in which respondent is said to be an unauthorized occupant without any allotment order from 1991. Proceeding were initiated by this order dated 10.4.2002 for declaration of vacancy before the Rent Control and Eviction" Officer, who held that there was no vacancy in the premises. The said order was challenged by the landlord in a Writ Petition No. 34797 of 2000. It was remanded by the High Court.

The Rent Control and Eviction Officer thereafter by means of order dated 10.4.2002 declared vacancy, categorically recording a finding that respondent is occupying the property illegally. The respondent Vijai Pal Goel filed Writ Petition No. 15766 of 2002, Vijai Pal Goel v. Rent Control and Eviction Officer, which was dismissed, thus the vacancy order was confirmed. The Hon''ble Court also gave direction to the Rent Control and Eviction Officer to decide the release application. Para 4 of the said judgment reads as follows:

In the teeth of the findings of this Court, the Rent Control and Eviction Officer, who has complied with the direction issued by this Court in the earlier two writ petitions and after that arriving at the conclusion that the occupation of the petitioner tenant being contrary to law cannot be interfered with by this Court in exercise of its powers under Article 226 of the Constitution of India. This writ petition, therefore, liable to be dismissed and is hereby dismissed. The interim order, if any, stands vacated. However, in the facts and circumstances of the case the parties shall bear their own costs. The Rent Control and Eviction Officer will now proceed in accordance with law for deciding the release application/allotment order.

The aforesaid judgments between the parties holding respondent Vijai Pal Goel was unauthorized occupant as well as the order declaring vacancy also became final.

After remand the matter went back for deciding the release of the accommodation in dispute before Rent Control and Eviction Officer. It is alleged that the respondent thereafter was not legally entitled to remain in possession of the accommodation in view of Section 18(3) of U.P. Act No. 13 of 1972 but be continued to retain possession in view of the stay order passed in Writ Petition No. 54055 of 2002 connected with the aforesaid writ petition.

It is submitted that while staying dispossession of respondent in the aforesaid writ petition this Court had directed the Rent Control and Eviction Officer to decide the release application in the light of the judgment dated 5.7.2002, passed in Writ Petition No. 15755 of 2002. Thus, respondents continued to remain in possession illegally as unauthorized occupant till 19.5.2003 when the property was released in favour of the petitioner. While releasing the property Rent Control and Eviction Officer further recorded a finding that respondent is an unauthorized occupant and his objections are not maintainable.

The respondent challenged the aforesaid order dated 19.5.2003 releasing the property in favour of petitioner in Revision No. 2 of 2003, which said to be not maintainable in view of decision rendered in Shyam Lal v. A.D.J. (E.C. Act), Dehradun 2000 (1) ARC 437 Ramkumar Maheshwari v. A.D.M. Civil Supplies 1998 (2) ARC 62 and Ramesh Chandra Srivastava v. XII A.C.J., Kanpur 1997 (1) ARC 336 wherein it has been held that unauthorized occupant has no legal right to object the release application. In this regard analogy has been drawn by the petitioner counsel upon Ram Narain v. Shakuntala Gaur 2002 (3) SLT 422 : 2002 (4) AWC 2725 wherein it has been held that a prospective allottee has no right to contest the release application.

Since according to the petitioner the revision was not maintainable, as such he filed Writ Petition No. 30714 of 2003, which was disposed of directing the District Judge to decide the revision at once.

It is urged that the District Judge has now allowed the revision erroneously holding that there is no vacancy. The relevant extract of the operative portion of the order in revision is as under:

mijksDr fof/k O;oLFkkvks ds ifjis{; esa fuxjkuhdrkZ fdjk;snkj fot; iky xks;y o o foi{kh la0 2 yS.MykMZ Mk0 egs''k vxzoky ds e/; iz''uxr nqdku dh ckcr gqvk le>kSrk i{kdkjks ij ck/;dkjh gS A yS.MykMZ nqdku ekfyd Mk0 egs''k dqekj vxzoky /kkjk 20�2� ,oa /kkjk 21 ;w0ih0 vf/kfu;e la0 13 lu~ 72 ds rgr csn[kyh dk okn ;ksftr djus ds fy, Lora= gS A edku ekfyd fdjk;snkj dks fcuk vkoaVu ds Hkou dks fdjk;s ij nsus dh n''kk esa /kkjk 12@16 ;w0ih0 ,DV 13 lu~ 72 ds rgr fjyht izkFkZuk&i= izLrqr djus dk vf/kdkj ugh j[krk gS vkSj u gh ,slk dksbZ vukf/kd`r fdjk;snkj /kkjk 16 ;w0ih0 ,DV 13 lu~ 72 ds rgr fjyht dh dk;Zokgh esa Hkkx ys ldrk gS A i{kdkjksa ij ck/;dkjh gS A fcuk vkoaVu vkns''k fdjk;snkj j[kus okys Hkw Lokeh dks fjyht vuqrks"k ls iqjLd`r ugh fd;k tk ldrk A v/khuLFk U;k;ky; dk ;g vizksp dkuwu dh Hkkouk ds foijhr gS A izLrqr ekeys esa dksbZ fjfDr ugh curh gS vkSj u gh v/khuLFk U;k;ky; dks yS.MykMZ ds fjyht izkFkZuk&i= ij dksbZ fopkj djuk pkfg, Fkk A fjfDr o fjyht ds nksuks gh vkns''k fcuk {ks=kf/kdkj ds ikfjr fd;s x;s gS A fuxjkuh esa cy gS A fuxjkuh Lohdkj fd;s tkus ;ksX; gS A

vkns''k

fuxjkuh Lohdkj dh tkrh gS A iz''uxr fu.kZ; o vkns''k fnukad 19-5-2003 vikLr fd;k tkrk gS A i{kdkj viuk & viuk okn O;; Loa; ogu djsxs A

fnukad 12-8-2005 g0 viBuh; 12-8-2005 vij ftyk U;k;k/kh''k dksVZ ua0 1] eqtQ~Qjuxj A

The petitioner assails the finding of the revisional court on the ground that they are absolutely perverse and the revisional court should be taken to task for flouting and ignoring the order passed by the High Court wherein it has been held in between the same parties that there exist vacancy, which has become final.

It is stated that the order of the revisional court Is contrary to the order passed in between the same parties in Writ Petition No. 15766 of 2002 and is liable to be quashed as the order declaring vacancy was approved and was confirmed by this Hon''ble Court in Writ Petition No. 15766 of 2002, by its order dated 5.7.2002, hence finding of the revisional court that there was no vacancy is not only perverse but it amounts to contempt of this Court specially when order of this Court in 2002 (2) ARC 277 was filed before the authority which was taken notice by the Presiding Officer and that the revision was not maintainable in the eye of law and respondent being the unauthorized person cannot be permitted to retain the property and that the petitioner is the owner and landlord of the property and he is entitled to get his possession back.

Learned Counsel for the respondent submits that respondent, Vijay Pal Goel is tenant of Shop No. 32/3, Dakshini, Civil Lines, Arya Samaj Road, Muzaffarnagar on the basis of written agreement executed on 12.6.1991 between petitioner-landlord and respondent-tenant.

The next submission is that Praveen Kumar Gupta had moved the application for allotment in collusion with the petitioner, which was filed at his instance in order to avail the benefit of the lacuna in the law. Now it is well-settled that if the landlord lets out building, without allotment, on which U.P. Act No. 13 of 1972 is applicable then he himself cannot file release application u/s 16 of the Act, on the ground of deemed vacancy u/s 12 of the Act is not maintainable.

It is further stated that arguments of the counsel for the petitioner are totally based on the old law which was laid down by this Hon''ble High Court in the case of Nutan Kumar v. IInd Addl. District Judge, Banda, but now the Hon''ble Supreme Court has set aside the judgment and order in Nootan Kumar case, hence the arguments of the petitioner''s counsel is not relevant.

It is stated that the revisional court in its order dated 12.8.2005 has considered the entire legal provisions, facts and circumstances of the case, against which the present writ petition has been filed and the same is devoid of law and merits, hence is liable to be dismissed.

In the instant case the agreement of letting dated 12.6.1991 is binding in between the landlord and tenant. The landlord may file release application u/s 21 of the Act or a suit for ejectment on the grounds available u/s 20(2) of the Act and he has already filed P.A. Case No. 38 of 1999 in the Court of Civil Judge (S.D.), Muzaffarnagar, Dr. Mahesh Kumar v. Vijay Pal Goel, u/s 21 of the Act No. XIII of 1972 for the release of the shop which is still pending in the Court.

The revisional court has rightly allowed the revision and rejected the release application and also held that order of vacancy to be without jurisdiction, after considering the latest legal pronouncements. Revision No. 2 of 2003 filed by respondent-tenant was maintainable in view of the law discussed hereinafter. Moreover, this Court has also directed on 5.7.2005 in Writ Petition No. 30714 of 2003 filed by landlord-petitioner to decide the Revision No. 2 of 2003 within a period of six weeks.

The contentions raised in paragraph 18 of the writ petition, cannot be sustained as the old law has been changed by the judicial pronouncements. The judgment and order passed by this Court dated 5.7.2002 in Writ Petition No. 15766 of 2002, regarding the order declaring and confirming vacancy was based on Nutan Kumar''s Full Bench case but the view taken by the Full Bench has been set aside by Hon''ble Supreme Court vide judgment and order dated 27.9.2002, Nutan Kumar and Others Vs. IInd Additional District Judge and Others, and also in 2002 (2) ARC 645. The petitioner as well as respondent both have acted against law by entering in relationship of landlord and tenant without allotment under the provisions of the Act as such the landlord would not be entitled for the release u/s 16 of the Act.

Recently in case of Munna Lal Agarwal Vs. Rent Control and Eviction Officer/City Magistrate and Others, the High Court has considered entire law on the subject-matter and has held that reversal of the Full Bench by the Supreme Court has changed the entire scenario, hence the agreement is binding between the parties, i.e., the landlord and the tenant and that the landlord can file suit for eviction on the ground mentioned u/s 20(2) of the Act and also release application u/s 21 of the Act on the ground of bona fide need further, if the landlord lets out building without allotment to which U.P. Act No. 13 of 1972 is applicable, then he himself cannot file release application u/s 16 of the Act on the ground of deemed vacancy u/s 12 of the Act.

Thus, in view of the prevailing law the impugned judgment and order dated 12.8.2005 (Annexure-9 to the writ petition) is perfectly correct and justified and the writ petition is devoid of merits and liable to be dismissed with costs and is accordingly dismissed.

As consequence of dismissal of Writ Petition No. 68271 of 2005 as stands dismissed, Writ Petition No. 30714 of 2003 also stands dismissed and Writ Petition No. 54055 of 2002 filed by tenant Vijai Pal Goel stands allowed in terms of the order of this Court.

No order as to costs.