Jaswant Singh vs Additional District Judge and Others

S.P. Srivastava, J.—Being aggrieved by an order dated 8-7-91 passed by the Rent Control and Eviction Officer Dehradun, whereunder the accommodation in dispute had been released in favour of Respondent No. 3 In the proceedings u/s 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 which has been affirmed in revision u/s 18 of the said Act by Respondent No. 1, the Petitioner bad approached this Court by means of the present writ petition seeking redress praying for the quashing of the said orders.

2 This writ petition was presented on 23-4-93 on which date the learned Counsel for the Petitioner filed a supplementary affidavit annexing therewith a copy of the order dated 25-4-91, passed by the Rent Control and Eviction Officer whereunder the premises in dispute were held and declared vacant u/s 12 of the said Act. Thereafter the learned Counsel for the Petitioner moved an application seeking permission to add certain grounds In tie writ petition and two clauses In the prayer made in the writ petition This application was allowed. Apart from the reliefs claimed in the writ petition to which a reference has been made above, after the amendment, the Petitioner has prayed for the Issue of a writ order or direction in the nature of certiorari quashing the entire proceedings started on the notice of vacancy u/s 15 of the Act culminating with the release order dated 8-7-91 as being void and illegal and without jurisdiction. A farther relief has aha been claimed seeking the issue of a writ order or direction in the nature of certiorari for quashing the order dated 25-4-91 declaring the premises in dispute to be vacant.

I have heard Shri G.N. Verma, the learned Counsel for the Petitioner and Shri R.K. Jain who has appeared for the Respondent No 3 and have also perused the record.

The facts, shorn of details and necessary for the disposal of the writ petition He in a narrow compass. It appears from the record that on 11-9-90 a notice u/s 15(1) of the U. P Act No. 13 of 1972 was sent by Mahendra Singh, Respondent No. 3 to the Rent Control and Eviction Officer intimating that the building in dispute had fallen vacant as It was illegally occupied by Jaswant and Raju without allotment for last 4 or 5 years On the same date Mahendra Singh, Respondent No. 3 filed an application seeking release of the accommodation in dispute asserting that he had purchased the said building from its owner on 4-6-82 and further asserting that Jaswant Singh was in unauthorised occupation of the said building without any allotment order. It was also asserted that since Jaswant and Raju had occupied the premises in dispute without any allotment order for the past about 4 or 5 years, the said premises was to be deemed to be vacant, which vacancy deserved to be notified. Shri Mahendra Singh made various allegations in the release application asserting that the premises in dispute was genuinely and bonafidely required for satisfying his med.

It further appears that on the receipt of the above notice and application, the Rent Control and Eviction Officer initiated the proceedings for the ascertainment of the vacancy as contemplated under the provisions of the Act and the Rules framed thereunder in this connection the Rent Control and Eviction Inspector was required to submit a report. The Kent Control Inspector appears to have submitted a report on 4-10-90. The Rent Control Inspector in his report stated that Mahendra Singh was the owner of the premises in dispute by virtue of the sale deed dated 4-6 82 and the accommodation In dispute was in the unauthorised occupation of Jaswant Singh and Raju. He also reported that during the course of inspection Jaswant and Raju did not produce any allotment order In their favour.

From a perusal of the order dated 8-7-91 it appears that inspite of repeated opportunities having been afforded to the Petitioner, he did not file any objection till 25-4-91 on which date the Rent Control and Eviction Officer declared the premises in dispute to be vacant vide his order of the said date The Rent Control a ad Eviction Officer has observed that the occupant had deliberately, in order to prolong the proceedings, sought repeated adjournments and inspite of having been afforded opportunities failed to file any objection whatsoever and did not lead any evidence. The Rent Control and Eviction Officer appears to have believed the evidence led by Mahendra Singh in the case and coming to the conclusion that the occupation of the Petitioner was unauthorised, held the premises In dispute to be vacant.

It further appears that the Petitioner tiled an objection against the report of the Rent Control Inspector dated 4-10-90 on 19-6-91 that is to say much after the declaration of the vacancy. In the said objection the Petitioner requested that the Rent Control Inspector may be directed to inspect the premises in dispute again and submit a fresh report. It was also asserted that the Petitioner had filed on 12-6-1991 original suit No. 433 of 1991, claiming to have become owner of the premises in dispute by virtue of adverse possession and a declaration was sought in the aforesaid suit to that effect in the said objections the Petitioner also prayed that the entire proceedings may be quashed. It further appears that the Petitioner had filed an application seeking review of the order dated 25-4-91 on 19-6-91 After declaration of the vacancy the rent control and Eviction Officer posted the matter relating to the question about the allotment/release of the premises In dispute, for consideration and granted the release sought for vide order dated 8-7-91. This order of release was challenged by the Petitioner by means of a revision u/s 18 of the U.P. Act No. 13 of 1972 which revision was dismissed on 12-4-93 upholding the order passed by the Rent Control and Eviction Officer.

After affirming the finding of the Rent Control and Eviction Officer to the effect that the status of the Petitioner was that of an unauthorised occupant, the revising authority further held that the unauthorised occupant had no locus standi in the matter of release which was a matter between the District Magistrate and the landlord. The Revising Authority further came to the conclusion that the vacancy had been declared after affording full opportunity of being heard to the Petitioner.

The learned Counsel for the Petitioner has urged that the entire proceedings Initiated on the basis of the notice dated 11-9-90 and the release application of the same date were entirely without jurisdiction null and void. The contention of the learned Counsel for the Petitioner is that Mahendra Singh himself having come up with the case that the occupation of the Petitioner over the disputed accommodation was of a period of 4 or 5 years anterior to the date of notice that: is 11-9-90 no action on the basis of the said notice could be taken as the provisions contained u/s 15 of the Act prescribed that every landlord, on a building falling vacant shall give notice of the vacancy in writing to the District Magistrate not later than seven days after the occurrence of such vacancy and the District Magistrate on being satisfied on an application made to him on that behalf that there was sufficient cause for the landlord not to give notice;within the time may condone such delay. The contention is that since the notice had not been given within seven days of the occurrence of the vacancy even if it be assumed to be there and the delay in giving the notice having not been condoned, the Rent Control and Eviction Officer could not proceed on such a notice. It has further been contended that similarly the Rent Control and Eviction Officer could not proceed on the basis of the release application filed on 11-9-90 in which also Mahendra Singh had asserted that the unauthorised occupation was continuing for a period of 4 or 3 years anterior to ''the moving of the release application.

I have considered the above submission and have examined the various provisions of the Act. The provision contained u/s 15 of the Act requires every landlord to intimate the District Magistrate if an accommodation has fallen vacant either because he or the tenant; has ceased to occupy it or it has become vacant ''In any other manner whatsoever''. The expression In ''any other manner whatsoever'' is wide enough to include the occurring of vacancy as contemplated u/s 12 as well. A division Bench of this Court in Its decision in the case of Geep Industrial Syndicate Ltd. v. Rent Control and Eviction Officer Alld. 1982 (1) ARC 585, had clarified that in view of the prohibition contained u/s 11 and 13 of the Act no one could either lease out a premises without any allotment order or could any one occupy the same. If any one occupied the premises without any allotment order he would cot only be unauthorised occupant but also liable to prosecution u/s 31 of the Act. The division Bench went on to observe that the possession of such a person being unauthorised cannot be recognised In the eye of law and if it cannot be recognised in the eye of law, there would be a vacancy which would entitle the Rent Control and Eviction Officer u/s 16 to pass an allotment order. Observation to the above effect occur in para 13 of the aforesaid decision.

The Apex Court in its decision of the case of Mohd. Azeem v. District Judge, Aligarh 1985 (2) ARC 85 has clarified that making available as much accommodation as possible for allotment to needy persons was contemplated under the scheme of the Act, with such legislative policy behind the Act, there is no manner of doubt that an obligation stands cast upon the Rent Control and Eviction Officer, to consider and determine the question relating to the accrual of vacancy in respect of an accommodation regarding which be receives an Information that it is vacant or may be treated as vacant so that he may exercise the Jurisdiction conferred upon him u/s 16 of the Act to effectuate the purpose of the said Act. There is nothing under the Act or rules framed thereunder which could be deemed to have put a curb or restraint on the exercise of the power vesting In the Rent Control and Eviction Officer in this regard and there can be no justification for holding, that a vacancy which has accrued under the provisions of the Act cannot be utilized for the purpose of passing an appropriate order u/s 16 of the Act la accordance with the law. It may further be noticed that if requisite conditions stand satisfied as envisaged u/s 16 of the Act, the Rent Control and Eviction Officer, cannot, under the law refuse to issue the necessary orders which are contemplated u/s 16 of the Act. As a matter of fact, on the requisite conditions being satisfied he has no discretion left in the matter. The omission on the part of the landlord to intimate the vacancy within the time as contemplated u/s 15 of the Act may result in his being prosecuted bat that cannot create a situation whereunder the Rent Control and Eviction Officer can be said to have ceased to have jurisdiction to proceed to ascertain the vacancy, the necessary facts in respect whereof come to his knowledge. The submission of the learned Counsel for the Petitioner appears to be based on a strained reasoning which do not follow from the various provisions of the Act and the scheme underlying it.

I had an occasion to consider this question in my decision in the Civil Misc. Writ Petition No. 1684 of 1993 Smt. Tara Devi and Anr. v. Rent Control and Eviction Officer and Ors. decided on 18-5-93. Taking into consideration the ratio of this decision and in view of what has been indicated above, the proceedings initiated by the Rent Control and Eviction Officer for the ascertainment of the vacancy and passing the necessary order after Its ascertainment cannot be deemed to be illegal or without jurisdiction The contention of the learned Counsel for the Petitioner is without any merit an is not acceptable.

The learned Counsel for the Petitioner has then urged that the Petitioner had raised a question of title and had asserted that he had become the owner of the premises in dispute and consequently the premises in dispute could not be deemed to be held to be vacant. The learned Counsel for the Petitioner Ms submitted In this connection that in the proceedings u/s 16 of the Act which are of a summary nature the quest-Ion of title of B building in dispute could not be gone into and since the Petitioner has raised such a question, the Kent Control and Eviction Officer could not proceed to release the premises.

I have given my anxious consideration to the aforesaid contention.

In the present case what I find is that as observed by the Rent Control and Eviction Officer the Petitioner had not cared to file any objection whatsoever in support of his aforesaid case by the date on which the declaration of vacancy had been made. As observed by this Court in its decision la the case of Kewlanand Belwal v. Savita Sah 1993 ACJ 341, in the absence of objection containing the pleading no question could arise for leading any evidence la support of the objection. The Petitioner did not avail of the repeated opportunities given to him by the Rent Control and Eviction Officer to file objection If, therefore, the Petitioner by his own negligence did not file objections and consequently in the absence of pleading, could not lead any evidence, he has to thank himself.

It may further be noticed that this Court in Its decision in the case of D.S. Victor v. District Judge Bareilly and Ors. had clearly indicated that a Court dealing with the application under the provisions of the U.P. Act No 13 of 1972 being a Court of limited Jurisdiction did not have the jurisdiction or authority to decide the complicated intricate questions of title if the same arose for the decision before him- This could however, be done, it was observed, incidentaly. Again this Court in its decision in the case of Shanti George Singh v. Prescribed Authority 1987 (1) ARC 252, had observed that in the proceeding u/s 21 of the Act only the relationship of the landlord and tenant had to be ascertained and the authority can go info the question of title only incidentaly. In the decision in the case of Radha Raman Pandey v. Vth Additional Judge Basti 1989 (1) ARC 31, this Court had held that In a case where the occupant tried to set up the case of adverse title it was apparent that his possession was unauthorised. It was observed that in such a case no interference is called for under Article 226 of the Constitution of India.

The learned Counsel for the Petitioner has placed much reliance upon the pendency of the title suit filed by the Petitioner against Mahendra Singh subsequent to the declaration of the vacancy, the provisions contained in Sections 12 and 16 of the Act refer to landlord and tenant. The landlord nerd not be a person who is owner In the proceedings in question no decision has been given no was warranted en the question relating to ownership of the premises in dispute. The pendency of the suit filed by the Petitioner seeking declaration of his title on the strength of the adverse possession can proceed unaffected by the impugned orders as in the present proceedings the question of title was neither warranted nor there was any occasion to determine the same.

The Petitioner cannot derive any advantage of the pendency of suit filed by him. He had not taken any care to file any objection in the proceedings u/s 16 of the Act before the premises in dispute was declared to be vacant and available for allotment and release. Further the suit itself had been filed subsequent to the passing of the order declaring the vacancy in question

The learned Counsel for the Petitioner has strenuously contended that the review application filed by him had not been disposed of by the Kent Control and Eviction Officer. A review application is maintainable u/s 16(5)(a) of the Act wherein an occupant of the building comprised in the allotment or release order can get it reviewed if the District Magistrate is satisfied that such order was not made in accordance with Clauses (a) (b) of Sub-Section 1 of Section 16 of the Act. It is not the Petitioner''s case that he had filed any application seeking review of the release order. What has been contended is that the Petitioner had fought for a review of the order declaring vacancy. Under the Act there is no provision permitting such a review. It may be noticed that as observed by Hon. Supreme Court in its decision in the case of Ganpat Roy v. Additional District Magistrate 1985 (2) ARC 73, in its very nature and scope an original hearing differ substantially from a review application and a party applying for a review or an appeal cannot as of fight lead evidence. It was also observed that where it was found that there is a deemed vacancy an occupant had no efficacious or adequate remedy under the Act to challenge such a finding,

However, the Petitioner insisted that the revision filed by him against the order of release was maintainable at his instance and in the revision he could assail the order passed by the Rent Control and Eviction Officer declaring the vacancy. Suffice it to say in this connection that this Court has repeatedly held that no revision lies against an order declaring the vacancy. This Court has farther held that an unauthorised occupant has no locus standi in the matter of release. See Ved Prakash v. 8th Additional District Judge, Ghaziabad 1993 (1) ARC 442, Naubat Ram Sharma v. Additional Judge Moradabad 1987 (2) ARC 121, Sushil Kumar Gupta v.I Ind Additional District Judge 1992 (1) ARC 503, Smt. Kunti Devi v.I Ind Additional District Judge 1992 (1) ARC 266. However, the revision filed by the Petitioner was dismissed. Eves if it be assumed that the revision was maintainable at the instate(sic) of the Petitioner in that event after its dismissal the question of considering the review on merit could not arise in any view of the matter.

The Petitioner cannot (''JiCitJ;)(sic) derive any advantage out of his application for review and it has (uo.ftu-i on thr- ej/-:es!iOY ftistiug) sic to the declaration of vacancy made on 25-6-91.

In the facts and circumstances of the present case I do not find any such error much less manifest error of law which may justify any interference while exercising the extra ordinary Jurisdiction envisaged under Article 226 of the Constitution of India.

The writ petition is clearly devoid of merit and is hereby dismissed.