Om Prakash Mishra vs District Judge and Others

Anjani Kumar, J.—This writ petition was heard by this Court when after hearing Counsel for the parties, this Court dismissed the writ petition for the reasons to be recorded later on. Now here are the reasons for dismissing the writ petition.

This writ petition is directed against the orders dated 21.8.2004 passed by the revisional Court and the order dated 7.6.2004 passed by the Rent Control and Eviction Officer whereby the application filed by the Satish Kumar Srivastava has been allowed releasing the house in question in favour of Satish Kumar Srivastava. Thereafter petitioner, Om Prakash Mishra filed an application dated 26.6.2004 for recall of the order dated 7.6.2004 on the ground that the said order was passed without hearing Om Prakash Mishra which was rejected vide order dated 7.7.2004. On rejection of the application for recall of the order dated 7.6.2004. Om Prakash Mishra, writ petitioner preferred a revision before the revisional Court which was also dismissed on 21.8.2004. Thus, this writ petition.

The brief facts leading to filing of the present writ petition are as under.

That respondent No. 3, Satish Kumar Srivastava purchased the building in question by registered sale deed dated 20.1.1991. The aforesaid building was occupied by one R.S. Shukla by virtue of allotment order. In the year 1982 R.S. Shukla vacated the accommodation and handed over the possession to Om Prakash Mishra illegally and thus, Om Prakash Mishra came into possession of the aforesaid building in the year 1982. On 22.10.1982 an application by Om Prakash Mishra for allotment of the accommodation was filed which was dismissed on 22.9.1989 by Rent control and Eviction Officer holding that Om Prakash Mishra is unauthorizedly occupying the accommodation in dispute, After purchase of the building by sale deed dated 20.1.1991 Sri Satish Kumar Srivastava filed an application u/s 16 of the of the U.P. Act No. XIII of 1972 (hereinafter referred to as the ''Act'') for release of the house on 18.7.1992 stating therein that since the building is occupied by Om Prakash Mishra who is unauthorized occupant, there is deemed vacancy u/s 12 of the Act. On 28.9.1992 the Rent Control Inspector submitted a report stating therein that there is deemed vacancy u/s 12 of the Act. By the order dated 16.11.1994 a vacany was declared by the Rent Control and Eviction Officer. The order declaring vacancy has not been challenged by anyone including Om Prakash Mishra. Om Prakash Mishra having found that he has not lost before the Rent Control authorities filed a suit bearing No. 232 of 1994 for cancellation of the sale deed dated 20.1.1991 and prayed for an interim injunction. The trial Court granted temporary injunction in favour of Om Prakash Mishra directing that the plaintiff may not be evicted except in accordance with law. This order dated 16.11.1994 is not challenged by Om Prakash Misha. On 12.9.1996 the application for release of the accommodation filed by Satish Kumar Srivastava was dismissed for non-prosecution. It is pertinent to refer that declaration of vacancy has not been challenged by Om Prakash Mishra. Satish Kumar Srivastava appears to have filed another application dated 27.2.1997 for release of the accommodation. Om Prakash Mishra has filed objection on 4.11.2000 to the release application dated 27.2.1997 without challenging the order declaring the vacancy dated 16.11.1994. On 7.6.2004 a release order is passed in favour of Satish Kumar Srivastava by Rent Control and Eviction Officer. A revision filed by Om Prakash Mishra u/s 18 of the Act against the order dated 7.6.2004 has also been dismissed. Learned Counsel for the petitioner has submitted before me that the order dated 7.6.2004 has been passed without hearing Om Prakash Mishra, therefore, the order dated 7.6.2004 is liable to be quashed by this Court.

On the other hand, learned Counsel for the respondent submitted that Om Prakash Mishra has no say in the matter of release of the accommodation because he has already been declared to be unauthorized occupant and secondly since he has not challenged the order declaring vacancy therefore, he cannot challenge the proceedings for release in view of the Full Bench decision of this Court reported in 1986 (1) ARC 1 FB; Talib Hasan and Anr. v. Ist Additional District Judge, Nainital and Ors..

Learned Counsel for the petitioner therefore, submitted that since Om Prakash Mishra has been contesting throughout the case, and also there is an interim injunction in Civil Suit No. 232 of 1994 in his favour, he ought to have been heard by the Rent Control and Eviction Officer before passing the order of release dated 7.6.2004.

In this view of the matter, according to learned Counsel for the petitioner the Rent Control and Eviction Officer has committed material irregularity in exercise of jurisdiction for release of the accommodation in dispute in favour of Satish Kumar Srivastava.

On the other hand, learned Counsel for the respondent cited number of decisions reported in 1995 (1) ARC 476; Jai Prakash Vashistha v. ADM, Meerut and Ors. 1995 (1) ARC 514; Smt. Chetan Atma Govil v. Rent Control and Eviction Officer, Saharanpur and Ors. 1995 (1) ARC 553; Mohan Lal Mishra v. State of U.P. and Ors. 1996 (1) ARC 578; Waqf Alalaulad and Ors. v. Sundardas Daulatram and Sons 1997 (1) ARC 357; Commander N.P. Kulshrestha v. State of U.P. 2001 (1) ARC 568; Sanjay Singh v. State of U.P. and Ors. 2004 (1) ARC 514; Ravindra Pratap Yadav v. State of U.P. and Ors. and submitted since the petitioner. Om Prakash Mishra has admitted in Annexure 4 to the writ petition that he has occupied the house by muscle power and he is house grabber, therefore, according to learned Counsel for the respondent the petitioner is not entitled for exercise of discretionary power by this Court under Article 226 of the Constitution of India in his favour. It is further submitted by learned Counsel for the respondents that it is incorrect to say that Om Prakash Mishra was not given any notice whereas he has admitted in the Para 10 of the plaint filed by him in the Civil Suit No. 232 of 1994 that the notice was given to him by Rent Control and Eviction Officer and it is further submitted that since the petitioner Om Prakash Mishra has no say in the matter of release of the accommodation in dispute in view of the Full Bench decision of this Court in the case of Talib Hasan (supra) he is not entitled to be heard by the Rent Control and Eviction Officer and the revisional authority and no error much less apparent on the face of record is committed by the authorities which may warrant interference by this Court in exercise of powers under Article 226 of the Constitution of India. In this connection, learned Counsel for the respondent has relied upon the decisions of this Court reported 1986 (1) ARC 1 FB; Talib Hasan and Anr. v. Ist Additional District Judge, Nainital and Ors. and Apex Court decision reported in 2002 (2) ARC 1 SC Ram Narayan Sharma v. Shakuntala Gaur and decision of this Court reported in 2004 (1) ARC 586 Munna Lal v. District and Sessions Judge, Kanpur and Ors. and decision of this Court reported in 2004 (2) ARC 84; Hardwari Lal v. IInd Additional District Judge, Saharanpur and Ors..

In view of the settled law and the fact that Om Prakash Mishra has not challenged the order declaring the vacancy, in my opinion the contention advanced on behalf of the petitioner has no force and deserves to be repelled. The further submission that the petitioner was not heard before passing of the release order, also deserves to be repelled and is hereby repelled.

In this view of the matter, this writ petition has no force and is dismissed.