Mumtaz Ahmad vs Mohd. Rafi

Anjani Kumar Mishra, J.—Heard Shri Manish Tandon, learned counsel for the petitioners and Shri Pradip Kumar Srivastava, counsel for the caveator respondent.

The writ petition arises out of a release application, under Section 21(1)(a) of the U.P. Act No.13 of 1972 and is directed against the order dated 14.10.2016, whereby application No.8-Ga 2, under Section 5 of the Limitation Act for condoning the delay in fling an appeal under Section 22 of the Act, has been dismissed.

The dispute in the writ petition pertains to House No.95/78 Bhaisiya Hata, Kanpur Nagar, wherein the petitioner is allegedly a tenant.

It appears that a release application, under Section 21(1) (a) of the Act was fled by the respondent and the same was allowed on 18.02.1995.

The release application had been fled arraying the father of the petitioner as opposite party therein. He who allegedly died on 15.09.2008.

Proceedings under Section 23 of the Act for execution of the order allowing the release application dated 18.02.1995, were initiated in the year 2005.

The petitioner claims to have acquired knowledge, this execution application on 22.09.2012.

He, thereafter, fled an appeal under Section 22 of the Act along with an application for condonation of delay. It is this application for condonation of delay, which has been dismissed by the order, impugned.

It is submitted that an SCC Suit was fled against his father, which was decreed. The petitioner''s father fled a revision against the judgment and decree in the SCC Suit. This revision was allowed and the matter was remanded back for fresh consideration. However, after remand, the suit was dismissed on 29.08.1998.

It appears that in the meantime, a release application under Section 22(1) (a) of the U.P. Act No.13 of 1972 was also fled regarding the same property and this release application was allowed on 18.02.1995.

The further case of the petitioner is that for 10 years, the order for release was not put to execution. After the death of his father, the execution proceedings under Section 23 were instituted in collusion with the petitioner''s step mother, who was not on good terms with the petitioner, as he was her step son. It is also alleged that the petitioner was also entitled to be impleaded as party in the execution proceedings as he was the heir of his father, the original tenant, and was also residing in the accommodation in question. He came to know of the pending execution proceedings on 21.09.2012 and thereafter the appeal was fled along with an application for condonation of delay. The Court below has wrongly and illegally refused to condone the delay in fling the appeal.

The other submission made by counsel for the petitioner is that the property was acquired by the Nagar Nigam and vests in it. The opposite party, Mohd. Raf is not the owner of the accommodation in question and therefore, the release application at his instance was not maintainable.

Counsel for the caveator - respondent has supported the impugned order.

I have considered the submissions made by learned counsel for the parties and have perused the record.

The appeal by the petitioner had been, admittedly, preferred with a delay of 17 years. The release order had been passed by the Prescribed Authority after contest by the petitioner''s father, on 18.02.1995. The same was not challenged by his father till his death on 15.09.2000 i.e. for almost five long years.

Contention of the petitioner is that he was not aware of these proceedings. It is, however, not denied that his father was aware of the order passed against him.

The plea of the petitioner that he came to know about the order dated 15.09.2000 in 2012 is not liable to be accepted in view of the averments contained in paragraph 15 of the writ petition, quoted here in below-

That since the parties were aware regarding acquisition proceedings as well as the pendency of SCC Revision No.81/1995 ( aforesaid), whereby stay order was operating, neither the respondent filed Execution Petition under Section 23 of the Act, nor the petitioner filed an appeal under Section 22 of the Act and both were sit idle and waited for the decision of SCC Revision.

The plea of collusion between the landlord-opposite party and petitioners'' step mother, who was arrayed as opposite party in the execution case instituted in the year 2005 has not been accepted by the Courts below, for the reasons given in the impugned order, I do not find any illegality or perversity in the reasoning given, therein.

Besides, perusal of the averments in paragraph no.15 of the writ petition quoted herein above, leads to an irresistible conclusion that the petitioner was, all along, aware of the pendency of the proceedings for release of the accommodation in question as also the order 15.09.2000, passed therein.

The Court below has, while rejecting the application for condonation of delay, observed that non-disclosure by the petitioner about the source of his knowledge of the proceedings and order dated 15.09.2000 as one of the ground for not accepting the explanation for the inordinate delay in fling the appeal.

Even otherwise, it stands admitted on record that petitioner''s father, despite being aware of the order dated 18.02.1995, never sought to challenge the same.

The reason given for not challenging the order, is the pendency of the SCC Revision fled by him. Even this SCC Revision was decided in the year 1998, at least two years prior to the death of the petitioner''s father.

Perusal of the orders passed in the SCC Suit reveals that in the suit, a plea was raised on behalf of the petitioner''s father that the property vested in the Nagar Mahapalika. This plea was duly considered and it was held that admittedly, the father of the petitioner was a tenant of the opposite party, Mohd Raf and any dispute between him and the Nagar Mahapalika was of no consequence.

In this context, it would be further relevant to note that this dispute has also been considered in the impugned order and the Court below has observed that although the property had been acquired, the same had been re-conveyed in favour of Mohd. Raf upon payment of betterment charges and that his name is recorded as its owner in the Municipal records.

The Court below has also observed that the petitioner, upon the death of his father, became a joint tenant along with his step mother and that he was equally bound by the release order, being a joint tenant.

In view of what has been stated herein above, this Court does not find any justification to interfere with the impugned order, which suffers from no illegality, warranting interference.

The writ petition is dismissed.