Kailash vs VIIIth Addl. District Judge and Others

M.L. Bhat, J.—In this petition, the parties have filed their pleadings. The case is ripe for hearing and it is not necessary to prolong its disposal. It can be disposed of at this stage without formally admitting it. Learned Counsel for the parties have also requested for its disposal at the earliest; Therefore, I proceed to decide this case on merits at the stage of admission.

The Petitioner''s case is that he is a tenant in premises No. 83-A/88, Juhi, Kanpur on the first floor. The premises consists of one room and Docchatti. It is stated that one Smt. Shanti Devi had vacated the said accommodation and thereafter Respondent No. 4, who is owner of the premises, let out the premises to the Petitioner with effect from 10-5-76. It is stated that on 1-11-76, Respondent No. 3 had moved an application before Respondent No. 2 u/s 16(1) of the Rent Act for allotment of the aforesaid accommodation in his favour On 23-12-76, the Rent Control Inspector is said to have made an inspection to ascertain as to whether any vacancy was there A report was submitted by the Rent Control Inspector that the accommodation was occupied by one Shanti Devi who had vacated the said accommodation about 8 months ago. The Rent Control Inspector did not certify the occupation of the accommodation by the Petitioner. The vacancy was, therefore, declared, by the authorities, Respondent No 4 is said to have filed her objection about the declaration of vacancy. The report of the Rent Control Inspector was challenged in the said objection. Respondent No; 4 had stated that the Petitioner was residing in the premises as he* tenant. The objections were rejected by Respondent No. 2 by his order dated 27-7-78 Respondent No. 4 moved an application on 16-8-78 u/s 16(1) of the Rent Act for release of the accommodation in dispute. The Petitioner also filed an application u/s 16(1)(b) as well u/s 14 on 8-12-78. Respondent No. 2 is said to have rejected the release application by his order dated 25-6-79. The premises were let out to one Daya Ram on 3-10-79 Respondent No. 3 being aggrieved against the allotment of the accommodation in favour of Daya Ram preferred a revision before the District Judge, Kanpur u/s 18 of Act No. 13 of 1972. The said revision was allowed and the allotment in favour of Daya Ram was set aside and the case was remanded vide order dated 5-4-82. After rehearing the case the allotment was made in favour of Respondent No. 3 on 14-3-63. The Petitioner, thereafter, moved an application u/s 16(5) of the Act No. 13 of 1972 for setting aside the allotment order in favour of Respondent No. 3. This application was accompanied by an affidavit of Respondent No, 4 and one Nand Ram and rent receipts purported to have been issued by Respondent No. 4. The application was heard and rejected on 14-8-84. The land lady seems to have supported the Petitioner and one Nand Ram is said to have contradicted the report of the Rent Control Inspector A revision was preferred by the Petitioner against the said order before the District Judge, Kanpur. He allowed the revision and set aside the order and directed to reconsider the application, by his order dated 10-7-85. On 5-1-90 the Petitioner''s application was allowed u/s 16(5) of the Act No. 13 of 1972. The order of declaration of vacancy dated 23-12-76 was set aside. Respondent No. 3 is said to have preferred a revision against the order dated 5-1-90 before the District Judge, Kanpur. The said revision has been allowed on 19-2-91. The order of the revisional court dated 19--2-91 is being impugned in the writ petition.

The Petitioner has filed this writ petition on the ground that the impugned order is contrary to law and evidence. It is stated that the Petitioner is living in the accommodation as tenant with the consent of the landlady with effect from 10-5-76 and he is entitled to the benefit of Section 14 of the Act No. 13 of 1972. It is stated that the landlady has also supported the Petitioner. She has admitted the rent receipts issued by her to the Petitioner. Sri Nand Ram''s affidavit is said to have been not considered. The Petitioner''s application for regularisation of his tenancy u/s 14 was not considered. During the proceedings of declaration of vacancy the Petitioner was not given notice or opportunity of hearing. Respondent No. 2 was justified in allowing the application of the Petitioner u/s 16(5) of the Act No. 13 of 1972.

Respondent No. 3 has filed counter-affidavit. He has stated that he filed allotment application on 1-11-76. Inspite of allotment order in his favour he has not been able to get the possession of the premises in dispute. He has denied the Petitioner''s claim of being a tenant in the premises in dispute. It is stated that he was an unauthorised occupant. Previous tenant Smt. Shanti Devi had vacated and shifted to Lucknow Thereafter, the premises is said to have remained vacant. The Inspector''s report was supported by two witnesses thereupon the vacancy was notified. Notices were sent to Respondent No. 4 and to Smt. Shanti Devi also who was reported to have gone to Lucknow. However, notice was served on Respondent No. 4, Respondent No. 3 denies that the premises were let out to the Petitioner on 10-5-76 as alleged by him. The landlady has filed her objections. She did not mention that she had let out the premises to the Petitioner. Her objections were rejected. The order of declaration of vacancy is said to have become absolute. The declaration of vacancy was never challenged by the Petitioner or by the landlady. The landlady in collusion with the Petitioner is said to have set up a case of Petitioner''s tenancy. The Petitioner has not challenged the allotment order in favour of Daya Ram which was challenged by Respondent No. 3 alone. Regularisation of tenancy in favour of the Petitioner could not be considered because he was not in possession of the premises prior to July, 1976 The Petitioner''s application u/s 16(5) of the Act could not be allowed. He is said to have been unauthorised occupant and is not entitled to any relief.

The Petitioner has also filed a rejoinder-affidavit in which he has reiterated the pleas raised by him in the writ petition. Contents of the counter are refuted. The Petitioner has filed a supplementary affidavit also and produced a copy of the order whereby the allotment in favour of Daya Ram was cancelled in Revision No. 285 of 1979, on 5-4-82. The revision petition seems to have been filed by Respondent No. 3.

I have heard learned Counsel for the parties at some length and examined the record, as also the documents placed by learned Counsel for the parties on record.

From the perusal of the record, it appears that declaration of vacancy had become final. The Petitioner did not challenge the same. The application of the landlady for release of the property was also rejected. In that application she did not mention about the Petitioner being her tanant. After" the declaration of the vacancy the allotment was made in favour of Respondent No 3. Having regard to these facts it is now to be considered whether the Petitioner has any case for quashing the impugned order.

The Petitioner submits that the revisional Court could not go into the factual aspect of the muter. Respondent No. 2 had considered the matter in accordance with the directions of the revisional court given earlier. It was not necessary for Respondent No. 2 to adhere to the findings which he had recorded earlier. He was directed to appreciate the evidence and then pa''s an order. After reappreciation of evidence the Respondent No. 2 could take a contrary view on the basis of evidence to the view which he had already taken. The revisional court''s order with regard to the findings of Respondent No. 2 on the face of evidence after reappreciation of evidence by Respondent No. 2, are not correct. It was not necessary for Respondent No. 2 to take the same view which it had taken earlier.

u/s 16(5), the District Magistrate can review his order if he is satisfied that the said order was not made in accordance with Clause (a) or Clause (b), of Sub-section (1). Clauses (a) and (b) envisage that the District Magistrate by an order requires the landlord to let any building which is vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order), or release the whole or any part of such building, or any land appurtenant thereto in favour of the landlord (to be called a release order). The District Magistrate in the present ease has passed an order u/s 16(1)(a) and that order had become final as it was not challenged. Therefore, there was no reason for him to review the order subsequently. The application moved by the Petitioner u/s 16(5), therefore, was not liable to be considered by Respondent No. 2.

The Petitioner seems to have mentioned 10-5-76 as the date of his occupancy of the premises with a purpose and design. He wants to bring his case within the purview of Section 14 of the Act No. 13 of 1972. If a person is in occupation of the premises prior to 5-7-78, his occupation can be regularised notwithstanding any thing contained in the said Act. However, the Petitioner''s occupation in the premises prior to 5-7-76 cannot be presumed on the basis of support given to him by the landlady. If he was in possession of the premises prior to 5-7-76, the landlady would have definitely said so in her objection before the competent authority. She did not mention this fact at all, which shows that the occupation of the Petitioner prior to 5-7-76 is an after thought.

Admittedly there is no allotment order in favour of the Petitioner. There is prohibition of letting without allotment order. This prohibition is contained in Section 11 of the Act. Section 14 is exception to it but the Petitioner''s occupation cannot be said to be prior to 5-7-76. The Petitioner claims to be in occupation now. His occupation is unauthorised which would not entitled him to any relief.

After the declaration of the vacancy which has remained unchallenged and which has become final. The allotment could be made in favour of Respondent No. 3. In between, allotment made in favour of Daya Ram was set aside at the instance of Respondent No. 3. At that stage also the Petitioner did not challenge the allotment in favour of Daya Ram. It is, therefore, difficult to hold that the Petitioner was in occupation of the premises prior to 5-7-76. He seems to be in collusion with the landlady. The landlady''s application has been rejected. Therefore, she has now set up the Petitioner and has started supporting him however, from the documents and facts of the case, the Petitioner cannot be held to be in occupation prior to 5-7-76. His occupation, if any in the premises is unauthorised. There is no allotment in his favour. The Petitioner''s application u/s 16(5) also could not be considered as the original order of allotment in favour of Respondent No. 3 did not warrant any review.

For the reasons stated above, I see no force in this writ petition. The same is liable to be dismissed.

The writ petition is, accordingly, dismissed. However, there will be no order as to costs. The interim order dated 13-5-91 shall stand vacated.