Harishchandra Vishwakarma vs State of U.P. and Another

Poonam Srivastav, J.—Heard learned Counsel for petitioner and counsel for contesting respondent.

Counter and rejoinder-affidavits have been exchanged. As agreed between counsels for respective parties, writ petition is being decided finally.

The instant writ petition has been preferred against an order dated 16.9.2005, passed by Additional District Judge/Special Judge (Anti Corruption), Varanasi, in Rent Control Revision No. 66 of 2005.

An application for allotment was moved by respondent No. 2 for a shop before Additional District Magistrate (Civil Supply)/Rent Control and Eviction Officer, Varanasi, on 18.6.2004 which is subject-matter of dispute. The application was registered as Case No. 28 of 2004, Aditya Bhardwaj v. Harish Chandra Vishwakarma. Since shop was vacant, landlord/petitioner filed a release application u/s 16 (1)(b) of U.P. Act No. XIII of 1972 (hereinafter referred to as the Act) on 18.1.2005.

Respondent No. 2 was found to be an unauthorized occupant. Consequently, Rent Control and Eviction Officer declared vacancy on 30.3.2005. Objection to release application was preferred by respondent No. 2 on 28.2.2005 along with an affidavit dated 13.6.2005.

Landlord/petitioner filed a counter-affidavit and also objection to the affidavit dated 13.6.2005 filed by respondent No. 2. Objection of respondent No. 2 was allowed and release application of petitioner was rejected by Rent Control and Eviction Officer, Varanasi, vide judgment and order dated 19.7.2005. Revision was preferred by petitioner before Additional District Judge challenging the order of Rent Control and Eviction Officer, Varanasi. Respondent No. 2 filed an application for impleadment in Rent Control Revision No. 66 of 2005. Impleadment application was objected by petitioner but objection was rejected by Additional District Judge/Special Judge (Anti Corruption) Varanasi, permitting respondent No. 2 to be impleaded as a party by means of the impugned order.

Without going into factual controversy raised in the affidavit as well as arguments advanced by counsels for respective parties, admittedly, respondent No. 2 is an unauthorized occupant. Proceedings before Rent Control and Eviction Officer commenced on an application moved by respondent No. 2. Thus, it is evident that respondent No. 2 falls within category of "prospective allottee". It is settled principle of law that "prospective allottee" is not entitled to object a release application filed u/s 16 (1)(b) of the Act. It is also an admitted fact that petitioner is the owner and landlord of shop in question situated in House No. B-31/21-A-1, mohalla Lanka, Varanasi. Respondent No. 2 is in occupation without an allotment order. This is a clear admission on the part of respondent No. 2 as well. "Prospective allottee" has no right even to participate in the proceedings of release instituted on behalf of landlord u/s 16 (1)(b) of the Act.

Rent Control and Eviction Officer has altogether erred in law in entertaining objection and affidavit, placing reliance and finally rejected release application allowing the objection of "prospective allottee". No doubt, Rent Control and Eviction Officer was at liberty either to reject or allow release application taking into consideration merits of the case of landlord alone without being influenced or affected by objection, affidavit or any document filed in support of objection to the release application. Consequently, it is evident that respondent No. 2 is not a necessary party. Revisional court has illegally allowed impleadment application and once again it is a step-in-ahead and amounts to propagating illegality adopted by Rent Control and Eviction Officer.

Petitioner''s counsel has placed reliance on a decision of this Court; Satyendra Srivastava Vs. Special Judge (SC/ST Act)/Additional District Judge and Another, , wherein it was held that if prospective allottee cannot challenge release order in revision, then he is neither necessary nor proper party in the revision filed by landlord against rejection of his release. In the matter of release, prospective allottee has got no say.

Second decision relied upon by petitioner''s counsel is Ram Narayan Sharma v. Shakuntala Gaur 2002 (2) ARC 1 : 2002 (4) AWC 2725. It was held that prospective allottee has no right to oppose release. Need is to* be decided by the District Magistrate as well as release application to be decided first before allotment.

Third decision on which reliance has been placed by petitioner''s counsel is Vijay Kumar Sonkar v. Incharge District Judge and Ors. 1995 (2) ARC 1, wherein it was held that prospective allottee (tenant) has no right to contest, i.e., to be heard. That is a matter between landlord and the District Magistrate. Prospective allottee (tenant) does not figure in release proceedings.

Next decision is Lajpat Rai Bhatia v. Additional District Judge, Dehradun and Ors. 1983 (1) ARC 796, wherein it was held that right of allottee to get himself impleaded in the release proceedings arises only after order of allotment was passed in his favour and after rejection of landlord''s prayer for release.

Last case cited by petitioner''s counsel is Talib Hasan and Anr. v. Ist Additional District Judge, Nainital and Ors. 1986 (1) ARC 1, wherein it was held that prospective allottee comes into picture only after rejection of landlord''s application for release.

There were conflicting decisions in this respect and matter was referred to the larger Bench. A Division Bench of this Court in the case of Ajay Pal Singh v. District Judge, Meerut and Ors. 2008 (71) ALR 655 , held that landlord cannot be deprived of his legal right to make a release application in respect of a building which had been earlier given in possession to an unauthorized occupant without an allotment order. Decision of this Court in Nootan Kumar case was set at naught by the Apex Court vide Nootan Kumar v. Additional District Judge 2002 (49) ALR 251. Full Bench of this Court in the case of Talib Hasan (supra) held that in the matter of release u/s 16 of the Act, prospective allottee has got no say; neither he can contest and oppose release application nor he can file revision against the order allowing release application. The Apex Court has also approved this view.

In the circumstances, it is clear that allowing of impleadment application in the instant case will amount to permitting prospective allottee for contesting, objecting and participating in the proceedings initiated on behalf of landlord for release of his accommodation u/s 16 (1)(b) of the Act.

In view of what has been stated above, impugned order dated 16.9.2005 passed by revisional court allowing impleadment application is quashed. The writ petition is allowed.

The R.C. and E.O., is directed to decide application for release in the light of principles laid down in various decisions by the Apex Court as well as this Court. The Rent Control and Eviction Officer has grossly erred in law while entertaining objection and affidavit of prospective allottee and rejecting release application on the basis of the said objection and affidavit. The matter shall be reheard and the claim of landlord shall be considered and decided independently in the perspective of law laid down and principles enunciated by the Apex Court as well as this High Court.