Nand Kishore Agarwal vs Ganesh Chaudhary

Manoj Misra, J.—Heard Sri P.K. Jain, learned senior counsel assisted by Sri Saurabh Srivastava for the petitioner; Sri H.R. Mishra, learned senior counsel assisted by Raghuvir Agarwal for the landlord-respondents and perused the record.

The brief facts of the present case are as follows : By order dated 21st August, 1989, a shop was declared vacant and a date was fixed for consideration of the release prayer of the landlord. The release application of the landlord-respondents was rejected vide order dated 8th September, 1989, passed by Rent Control and Eviction Officer, by considering affidavit and objection submitted by one Rajendra Kumar, a prospective allottee. In one paragraph, without recording any cogent reason, the stand taken by the landlord that the building in dispute, of which the accommodation in suit was a part, had come to the share of the landlord by way of a family settlement was discarded and by taking into consideration certain assessment rolls of Nagar Mahapalika indicating that there were other properties as well with the landlord, the release application was rejected. Three days thereafter, without even giving prescribed time to the landlord-respondents to file a revision, under Section 18 of the U.P. Act No.13 of 1972, against the rejection of their release application, the present petitioner was allotted the premises vide order dated 11th September, 1989. The allotment order also did not fix any rent, which was required to be paid by the allottee.

Challenging the order dated 8th September, 1989, the landlord-respondents filed Rent Revision No.145 of 1989 before the Additional District Judge, Court No.17, Kanpur Nagar. Another Rent Revision No.156 of 1989 was filed against the order of allotment dated 11th September, 1989. Both the revisions came to be allowed vide impugned order dated 3rd February, 2017.

The revisional Court proceeded to allow the revisions on the ground that once an accommodation is declared vacant and a release application is filed by the landlord, a stranger i.e. prospective allottee cannot be heard and since the release application of the landlord was rejected by consideration of the affidavits submitted by a prospective allottee, namely, Rajendra Kumar, without giving due opportunity to the release applicants to rebut those documents, the order stood vitiated. The Rent Revision No.156 of 1989 was allowed as a consequence of allowing of Rent Revision No.145 of 1989 because it is settled in law that till the release application is not adjudicated upon, the vacant accommodation cannot be made subject matter of allotment proceedings and as a logical consequence thereof a prospective allottee has no right to be heard on the application for release filed by the landlord vide Rule 13(4) of the Rules framed under U.P. Act No.13 of 1972 (See also Talib Husain v. 1st Addl. District Judge, 1986(12) ALR 113 (FB), upheld by Apex Court in Vijay Kumar Sonkar v. Incharge District Judge, 1995 (2) ARC 1 (SC); as also Swaroop Narain Srivastava v. IVth Addl. District Judge 1994(24) ALR 261 (SC). Accordingly, the allotment order was also set aside.

In addition to above, it was also found that there was no proper service of notice on the landlord before proceeding to consider the allotment prayer and further, even rent was not fixed.

Aggrieved by the revisional Court''s order dated 3rd February, 2017, the present writ petition has been filed.

Sri P. K. Jain, learned senior counsel, who has appeared on behalf of the petitioner, submitted that although the prospective allottee may not have a right to oppose the release proceedings initiated by the landlord but he can always bring to the notice of the Court the facts to demonstrate that the landlord has not come with clean hands and if those facts have been placed, they can always be considered by the Rent Control and Eviction Officer at the time of consideration of the release application. It has also been submitted that even if the affidavit of the prospective allottee is taken out of consideration, the order rejecting the release application records sufficient reasons that there was no ground made out to release the accommodation in favour of the landlord and, therefore, in exercise of revisional power, the Court below ought not to have interfered with the order rejecting the release application.

Sri H. R. Mishra, learned senior counsel, appearing on behalf of the landlord-respondents, has taken the Court through the grounds of revision, which was preferred by the landlord-respondents against the order rejecting the release application. The grounds of revision are there on record at page 96 onwards of paper book as Annexure-''11'' to the writ petition. In paragraph 4 of the grounds of revision it has been specifically stated that while rejecting the release application the Rent Control and Eviction Officer has omitted to consider the affidavits dated 25th August, 1989 and 28th August, 1989, which were filed in support of the need of the landlords to claim release of the accommodation in dispute. In paragraph 5 of the revision application it was demonstrated that a settlement had also taken place between the family members so as to demonstrate that the accommodation in dispute had fallen to the share of the landlord-respondent for whose need the release was sought. It was also pointed out that the family settlement had been noticed while deciding a separate suit, therefore, there was no good reason to discard the family settlement. The affidavit dated 25th August, 1989 is on record at page 77 of the paper book as Annexure-''8'' to the writ petition. The said affidavit details as to how between the co-sharers a partition had taken place pursuant to a family settlement and that in the said settlement the accommodation in dispute had fallen to the share of the landlord for whose need the release application was filed. The facts relating to the need have also been disclosed therein.

The averments made in those affidavits have hardly been discussed by the Rent Control and Eviction Officer in his order dated 8th September, 1989 and by a cryptic order the release application has been rejected. Once this is the position on record, this Court finds no good reason to interfere with the order dated 3rd February, 2017, by which the revisional Court has set aside the order of allotment and has remitted the matter back to the Rent Control and Eviction Officer to pass a fresh order on the release application of the landlord-respondents. It is well settled in law that till the release application of the landlord is not decided, the prayer for allotment in favour of a third party cannot be considered and, therefore, once an order rejecting the release application is found to be erroneous, the subsequent order allotting the premises cannot stand and, accordingly, the revisional Court was justified in setting aside the order of allotment.

The writ petition lacks merit and is dismissed.