Om Prakash vs Garhwali Sabha Dharamshala

B.S. Verma, J.—By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgment and order dated 12-10-2009 (contained as Annexure-7 to the petition) and impugned possession letter/order dated 11-6-2010 (contained as Annexure-8 to the petition).

Briefly stated, the facts giving rise to the present writ petition are that one Suresh Chandra informed the Rent Control and Eviction Officer/City Magistrate, Haridwar (for short the R.C.& E.O.) that the shop in dispute was let out to Bhagat Ram, who has shifted from the disputed shop and the shop is in illegal possession of his brother Om Prakash, therefore, vacancy be declared u/s 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 ( for short the Act). Ultimately, vacancy was declared by the R.C. & E.O. vide order dated 13-7-1981.

The order declaring vacancy was challenged by Bhagat Ram by filing Rent Control Revision No. 152 of 1981, Bhagat Ram v. Garhwali Sabha, which was dismissed by the II Additional District Judge Saharanpur by his order dated 22-10-1981 as not maintainable.

Thereafter, after declaration of the vacancy, an application for release of the disputed shop u/s 16(1) of the Act was filed by the landlord Garhwali Sabha Dharamshala. The said application was dismissed by R.C.&E.O. vide order dated 28-3-1984. The R.C. & E.O. thereafter considered the application for allotment filed by Suresh Chand and allotted the shop in question in favour of Suresh Chand by order dated 19-6-1984. Aggrieved by the said order, the respondent filed Rent Control Revision No. 277 of 1986 Garhwali Shabha Haridwar v. Resident Magistrate Haridwar and Ors. Another revision was also filed by Bhagat Ram challenging the order dated 19-6-1984. R.C.R. No. 277 of 1986, 278 of 86, 215 of 1984 and 50 of 1985 were clubbed together and decided by VIII Additional District Judge, Saharanpur, vide order dated 14-12-1988, whereby the allotment order was confirmed and the order rejecting the release application of the landlord was upheld. The respondent Garhwali Sabha filed Writ Petition No. 166 of 2003 and Bhagat Ram filed Writ Petition No. 165 of 2003. Both the writ petitions were connected and decided vide judgment dated 31-12-2008 by this Court. The writ petition No. 166 of 2003 was allowed and the matter was remanded to the revisional court for decision afresh in the light of the observations made in the body of the judgment, while the other writ petition filed by Bhagat Ram was dismissed.

It is pertinent to mention here that pursuant to the direction of this Court given by order dated 31-12-2008, the learned Additional District Judge Haridwar allowed the revision No. 277 of 1986, Garhwali Sabha v. State of Uttarakhand and released the shop in question in favour of the respondent Garhwali Sabha vide order dated 12-10-2009.

Aggrieved, the petitioner filed the present writ petition on the ground that no notice was issued in the revision No. 277 of 1986 to him and in fact, the District Judge Haridwar allowed the revision without affording the opportunity of hearing to the petitioner by his judgment and order dated 12-10-2009. The petitioner came to about the order impugned when the R.C. & E.O. directed the petitioner on 11-6-2010 to hand over the possession. According to the petitioner, he is the tenant of the disputed shop and Bhagat Ram is not a tenant. The petitioner was allotted the shop. Garhwali Sabha Haridwar is the landlord, who filed a suit for recovery of rent and ejectment against the petitioner bearing S.C.C. Suit No. 518 of 2007, which is pending before the Judge, Small Cause Court, Haridwar.

I have pondered over the matter and perused the entire material placed before this Court including the order dated 31-12-2008 passed by this Court in Writ Petition No. 166 of 2003(M/S). This Court has made the following observations in the writ petition.

Therefore, this Court has no doubt that even after the order of allotment, the propriety and legality of the order of the deemed vacancy can be challenged and to that extent the revisional court was wrong in saying that it is no more given to the petitioner to challenge the order of vacancy after the allotment order has already been made. However, these are not the entire facts of the case. Here the petitioner had in fact earlier challenged the order of vacancy in revision which was also dismissed and the petitioner did not challenge the order made by the revisional court and this would act as res judicata against the petitioner. Moreover, it is too late in the day to rake up the matter regarding the "deemed vacancy" and, as such, this Court is not inclined to open the issue of vacancy in the present writ petition. Therefore, the writ petition of the petitioner fails as this Court is not inclined nor does it feel just and proper to examine the deemed vacancy aspect at this stage.

The order of the revisional court is, therefore, liable to be set aside and is, hence, set aside. However, while setting aside the judgment of the revisional court, the matter has to be remanded back to the revisional court, for a fresh disposal of the same in the light of the discussion made above. The revisional court is directed to decide the rival claims of the petitioner and prospective allottees including respondent No. 5 in accordance with law and in the light of the observations contained in this judgment which is as follows:

First the release application of the landlord will be entertained and the bonafide need of the landlord will be ascertained by the revisional court and if it comes to the conclusion that the landlord has a bona fide need, then the premises in dispute must be released in favour of the landlord. The revisional court is not liable to hear any objections of any other prospective allottee, while disposing of the release application of the landlord. On the other hand, if the revisional authority comes to the conclusion that the landlord does not have a bona fide need, then only it would hear the rival contentions of the prospective allottees and allot the premises to one in accordance with law.

After the remand of the matter, the learned District Judge Haridwar heard the revision afresh as per direction of this Court on the point of bona fide need of the landlord for release of the disputed shop. The revisional court after considering all the aspect of the case came to the conclusion that the need of the landlord is bona fide. Consequently, the revision No. 277 of 1986 Garhwali Sabha Haridwar v. State of Uttarakhand was allowed vide order dated 12-10-2009 and the disputed shop has been allowed in favour of the landlord.

It finds place to mention here that the order dated 31-12-2008 passed by this Court was not at all challenged by the petitioner before any higher Forum. It was open for the petitioner to have challenged the order dated 31-12-2008 before the higher Forum if he had any grievance, but it has not been done. At this stage it is not open to the petitioner to assail the order dated 12-10-2009 which has been passed by the revisonal court as per direction of this Court.

The writ petition is devoid of any merit and is liable to be dismissed at the threshold.

The writ petition is dismissed in limine.