Khunni Singh vs District Judge and Others

Sudhir Narain, J.—This writ petition is directed against the order dated 21.7.1982 passed by the District Judge, Kanpur allowing the release application filed by the landlord, Respondent No. 2.

Gaya Prasad claiming himself to be landlord filed application for release of the disputed accommodation on the allegation that it was vacant and he required It for the need of members of his family. The accommodation was finally declared vacant by the District Judge vide order dated 10.12.1981. The Petitioner claiming himself as prospective allottee filed objection to the release application. He denied that the need of the landlord was not bona fide. The release application was rejected by the Rent Control and Eviction Officer vide order dated 29.12.1981. He held that the landlord has two rooms on the ground floor and according to the quinquennial assessment of the municipal record, the landlord had four rooms on the first floor which were sufficient for the need of his family. He further held that though the accommodation had fallen vacant yet the Petitioner was still residing and by the same order, he allotted the accommodation to the Petitioner. The landlord being aggrieved against the said order Hied revision before the District Judge, Kanpur. Respondent No. 1 found that the need of the landlord was bona fide and released the accommodation in his favour. The Petitioner has filed this writ petition against the said order.

It is not denied that the status of the Petitioner is only that of a prospective allottee. He has no right to file writ petition against the order releasing the disputed accommodation in favour of the landlord. in Full Bench decision of this Court Talib Hussain and Anr. v. II Additional District Judge, Nainital and Ors. 1986 (1) ARC 1, this Court held that a prospective allottee has no right to file objection against release application nor he is entitled to any hearing in the disposal of release application on the general principle of doctrine of audi alteram partem. Relying upon this Full Bench decision, it was held in Smt. A. Albert alias Smt. Radha Sharma v. VII Additional District Judge, Bulandshahr and Ors. 1987 (1) ARC 397, that the prospective allottee has no right to file a revision against an order passed by the Rent Control and Eviction Officer releasing the disputed accommodation in favour of landlord u/s 16(1) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act). In Ved Prakash v. VIII Additional District Judge, Ghaziabad and Ors. 1993 (1) ARC 442, the Rent Control and Eviction Officer had rejected the release application but it was allowed in revision u/s 18 of the Act. It was held that writ petition against such order was not maintainable at the instance of a prospective allottee. The Full Bench decision of this Court in Talib Hussain (supra) has been recently affirmed by their Lordships of the Supreme Court in Vijai Kumar Sonkar v. Incharge District Judge and Ors. 1995 (2) ARC 1, and it was held that the prospective allottee has no right to contest the release application and to be heard. It was observed that the prospective allottee has no right to resist the landlord in release proceedings.

Learned Counsel for the Petitioner has placed reliance upon the decision in Brij Bhushan Das Srivastava v. IIIrd Additional District Judge, Varanasi and Ors. 1995 (1) ARC 158, wherein this Court dealing with the rights of the prospective allottee made the following observation:

A preliminary objection raised on behalf of the Respondent, is about the maintainability of the writ petition at the instance of a prospective allottee, in the matter of release sought by the landlord. There is no doubt about the legal position that prospective allottee has no right to be heard in the matter of release, sought by a landlord. Yet, however, it is the duty of the R.C. and E.O. and for this matter the revisional court, to consider all material, relevant to the question of release, including such, as may be placed by a prospective allottee, but without permitting him to participate in the hearing. in this view of the matter, although technically, the writ petition may not lie to the effect that opportunity of hearing was not afforded, in its extraordinary jurisdiction, under Article 226 of the Constitution, this Court can very well look into the legality or otherwise of the impugned order and the writ petition could not be thrown on the technical ground of the Petitioner''s incapability to prefer the same.

In this decision also the court held that the prospective allottee has no right to be heard. It was, however, taking into consideration the extraordinary Jurisdiction under Article 226, the court proceeded to consider the matter. The court, however, did not take the view that the writ petition at the instance of prospective allottee is maintainable. As the revision at the instance'' of prospective allottee is not maintainable u/s 18 of the Act, it cannot be urged that writ petition is maintainable against an order releasing the property in favour of the landlord.

The Petitioner, however, was also heard on merits. It was urged that the court in revision had no Jurisdiction to set aside the finding u/s 18 of the Act and reassess the evidence and record its own finding.

I have perused the judgment of the Rent Control and Eviction Officer and the order passed by the Respondent No. 1. The Rent Control and Eviction Officer proceeded on the basis that the landlord had two rooms on the ground floor and four rooms at first floor. He relied upon the quinquennial assessment of the municipal authorities on the basis of which he had come to the conclusion that the landlord had four rooms on first floor. The Rent Control Inspector was appointed to inspect the premises in occupation of the landlord. A report of the Inspector has been filed as Annexure-5 to the writ petition. He has indicated that the landlord had one room which he alleged as Pooja room and one verandah and bathroom on the ground floor and on the first floor he had two rooms, verandah, kitchen and latrine and on second floor one Khaprail shed. The Rent Control and Eviction Officer while passing the order came to the conclusion that the landlord had four rooms without considering the report of the Rent Control Inspector. Respondent No. 1 has relied upon the report of the Inspector.

Secondly, the approach of the Rent Control and Eviction Officer was manifestly Illegal. He was not competent to enquire into the sufficiency or otherwise of the needs of the landlord. He was only required to find out the bona fide need of the landlord. In Jai Prakash Vashistha v. District Judge, Meerut and Anr. 1982 (2) ARC 1257, it was held that Rent Control and Eviction Officer is required to consider as to whether the application of the landlord is bona fide. It is not for him to assess as to how much accommodation would be sufficient for the need of the landlord.

In case the approach of the Rent Control and Eviction Officer while considering the release application is erroneous in law, the court exercising the jurisdiction in revision u/s 18 of the Act, can set aside the findings of the Rent Control and Eviction Officer. In Phanish Chandra Tripathi v. Ist Additional District Judge, Allahabad and Ors. 1983 11 ARC 58. It was held that the revising authority can interfere with the order of the District Judge u/s 18 of the Act when an authority under the Act fails to take into consideration the relevant material on record and proceeds to decide the question of Jurisdictional fact, it commits an error in the exercise of jurisdiction. In Himmat Bahadur Singh v. XIIth Additional District Judge, Kanpur and Ors. 1984 (1) ARC 433, it was held that District Judge while hearing a revision u/s 18 of the Act could reverse a finding of fact and pass a final order of release while allowing the revision.

It was lastly urged that Gaya Prasad was not landlord and the application filed at his instance u/s 18 is not maintainable. It is not denied that the Petitioner himself was treating him as landlord. He is merely a prospective allottee and cannot challenge the release application. There is no other person who was claiming the rights adverse to Gaya Prasad. This argument is not open to the Petitioner.

In view of the above, there is no merit in the writ petition and it is accordingly dismissed with costs.