Law Publishers vs Additional District Judge and Others

S.R. Singh, J.—The subject-matter of dispute In these writ petitions is a portion of house No. 29/39. Kanpur Road. Allahabad (hereinafter referred to as the Premises in dispute). By order dated 31.5.1988, it was allotted in favour of Rais Ahmad Khan -- the Petitioner of Civil Misc. Writ Petition No. 7855 of 1990 on monthly presumptive rent of Rs. 400 only. The order dated 31.5.1988 directing allotment of the premises in dispute in favour of Rais Ahmad Khan was preceded by order dated 15.4.1986 declaring vacancy in respect thereof. The Law Publisher, Sardar Patel Marg through its partner Sri R. G. Sagar the Petitioner of Civil Misc. Writ Petition No. 10826 of 1988. filed a revision, being Rent Control Revision No. 216 of 1988, against the allotment order dated 31.5.1988. The revision came to be dismissed vide order dated 9.6.1988 as not maintainable which is the subject-matter of impugnment in Civil Misc. Writ Petition No. 10826 of 1988. So far as Civil Misc. Writ Petition No. 7855 of 1990 is concerned, it is directed against the judgment and order dated 15.3.1990 passed in a civil revision filed by S. A. Jauwad, the Mutawalli -cum-receiver of the premises in dispute against the allotment order dated 31.5.1988 passed by the Rent Control and Eviction Officer, Allahabad. By order dated 15.3.1990, the order of allotment dated 31.5.1988 has been rescinded and the matter remanded to the Rent Control and Eviction Officer for deciding the allotment applications afresh after notice to the landlord and other concerned parties.

It transpires from the facts stated in the writ petition that house No. 29/39, Kanpur Road, Allahabad was previously in occupation of one R. B. Sethi, Advocate on monthly rent of Rs. 44. Sri R. B. Sethi, who was living all alone, fell seriously ill in the year 1983 and shifted to Bombay to his married daughter''s house, where he died on 8.7.1983. His son-an Engineer, who was living at Baroda, later on shifted to Bahrain. Sri Rais Ahmad Khan and others moved applications for allotment of the premises in question treating the same as vacant after the death of R. B. Sethi. It appears that the Rent Control Inspector submitted a report dated 26.8.1983 to the effect that there was no vacancy in relation to the premises in question. In Civil Misc. Writ Petition No. 7855 of 1990. it is alleged that Sri R. G. Sagar took unauthorised occupation of the entire house previously in occupation of Sri R. B. Sethi and allowed one Sri Ashok Kumar Srivastava to occupy the premises in question. Rais Ahmad Khan moved an application dated 8.2.1984 challenging the non-vacancy report of the Rent Control Inspector in relation to the premises in question. One S. A. Saibullah also moved an application on 23.4.1984 for allotment of the premises in question in his favour on the ground that the same had fallen vacant on the death of Sri R. B. Sethi. On fresh report being called for, the Rent Inspector submitted a report of vacancy on 23.4.1984 annexing thereto the statement of Sri Ashok Kumar Srivastava that he was allowed by Sri. R. G. Sagar who himself claimed to be caretaker of the premises appointed as such by Sri Vinay Sethi, the son of Sri R. B. Sethi, to occupy the house as a guest on 12.4.1984. The matter, however, remained pending and a third report dated 7.4.1986 was submitted by the Rent Control Inspector stating therein that the premises in question was found in occupation of Sri. A. K. Srivastava who happened to be the manager of the Law Publishers. Rent Control and Eviction Officer thereupon declared vacancy in relation to the premises in question vide order dated 15.4.1986 and, upon consideration of the respective claims of the parties, allotted it in favour of Sri Rais Ahmad Khan vide order dated 31.5.1988. Earlier, it appears that Sri S. A. Jauwad, Mutawalli-cum-receiver of the waqf property sent an intimation on 7.2.1986 to the Rent Control and Eviction Officer that the premises in question was likely to fall vacant and on 1.3.1986 he nominated the Law Publisher, Sardar Patel Marg, Allahabad, through its partner Sr. R. G. Sagar u/s 17(1) of the U.P. Act No. 13 of 1972 for the premises being allotted In his favour.

I have heard learned Counsel appearing for Sri Rais Ahmad Khan as well as learned Counsel appearing for Mutawalli Sri S. A. Jauwad besides the learned Counsel appearing for the Law Publisher. In my opinion. Writ Petition No. 10826 of 1988 filed by the Law Publisher against the order rejecting revision preferred against the allotment order dated 31.5.1988, has become infructuous as a consequence of the order dated 15.3.1990 which is the subject-matter of impugnment in Civil Misc. Writ Petition No. 7855 of 1990 filed by Sri Rais Ahmad Khan. The order, which was sought to be set aside at the instance of Law Publisher, has been set aside at the instance of the Landlord. Therefore, it is the legality of the order dated 15.3.1990 which remains to be Judicially reviewed by this Court under Article 227 of the Constitution.

A perusal of the order dated 31.5.1988 passed by the Rent Control and Eviction Officer would make it abundantly clear that the Rent Control and Eviction Officer categorically found, upon consideration of Inspector''s reports dated 23.4.1984 and 7.4.1986 besides other material on record, that the vacancy in relation to the premises in question had occurred at least since 12.4.1984, that is to say, the date with effect from which the premises in question came to be occupied by Sri Ashok Kumar Srivastava without any order of allotment in his favour. The plea raised on behalf of the Law Publisher as well as the Mutawalli Sri. S. A. Jauwad that Sri Ashok Kumar Srivastava was staying in the premises temporarily as a guest, was rejected by the Rent Control and Eviction Officer for it did "not appeal to reason". The Revisional Court has set aside the order of allotment basically on the ground that the nomination given by Mutawalli u/s 17(1) of the U.P. Act No. 13 of 1972 was not considered by the Rent Control and Eviction Officer. The reasoning given by the Revisional Court, in my opinion, is fallacious and cannot be accepted so long as the finding recorded by the Rent Control and Eviction Officer that the vacancy occurred "at least since 12.4.1984", i.e., the date with effect from which Sri Ashok Kumar Srivastava was found to be in unauthorised occupation, remains intact. Vacancy, it may be observed, in relation to a building governed by the Act shall be deemed to have occurred u/s 12 of the U.P. Act No. 13 of 1972 with effect from the date of happening of any of the events mentioned in Section 12 of the said Act. In the Instant case, the Rent Control and Eviction Officer has recorded a categorical finding that the premises in question would be deemed to be vacant since 12.4.1984 under Sub-sections (1) and (4) of Section 12 of the Act. That being so, the landlord ceased to have any right to nominate on 1.3.1986 any person for allotment u/s 17(1) of the Act and the Rent Control and Eviction Officer was not bound to consider any such nomination since the right to nominate was not exercised within the stipulated period and in the manner prescribed by law.

The order of allotment is open to revision by the District Judge u/s 18 of the Act on the grounds that the Rent Control and Eviction Officer has exercised a jurisdiction not vested in him by law or he has failed to exercise the jurisdiction vested In him by law or has acted in excess of his jurisdiction illegally or with material irregularities. The question of vacancy is jurisdictional one and can, therefore, be examined even by the Revisional Court in exercise of its power u/s 18 read with proviso to Section 16(1) of the Act for in the absence of the vacancy, the Rent Control and Eviction Officer does not get Jurisdiction either to allot a premises or to release it in favour of the landlord u/s 16 of the Act. The mistake committed by the learned Additional District Judge in the instant case is that he failed to reverse the categorical finding recorded by the Rent Control and Eviction Officer in his order dated 31.5.1988 that the premises had fallen vacant at least with effect from the date it was allowed to be occupied by Sri Ashok Kumar Srivastava. On the said finding recorded by the Rent Control and Eviction Officer, the landlord was precluded from making any nomination and the provisions of law in this regard were not attracted. It is evident from Section 15 of the Act that every landlord of a building governed by the Act is under an obligation to intimate the vacancy in writing to the District Magistrate not later than seven days after the occurrence of such vacancy and such notice may at the option of the landlord be given before the occurrence of the vacancy. Section 17 of the Act clearly stipulates that where the district receives an intimation of vacancy or expected vacancy under Sub-section (1) of Section 15 of the Act and fails to communicate an order of allotment within 21 days from the date of receipt of such intimation, the landlord has the right to nominate to the District Magistrate the name of a person of his choice in whose favour the building is to be allotted by the Rent Control and Eviction Officer. On the undisturbed finding recorded by the Rent Control and Eviction Officer in his order dated 31.5.1988, the question of consideration of nominee of the landlord for the purpose of allotment u/s 17(1) of the Act did not arise and the Revisional Court was not justified in setting aside the order passed by the Rent Control and Eviction Officer merely on the ground that the nomination was not considered u/s 17 of the Act.

In view of the above discussion, the Writ Petition No. 10826 of 1988, fails and is dismissed while Writ Petition No. 7855 of 1990 succeeds and is allowed and the impugned order dated 15.3.1990 is quashed.