Pramod Kumar Sood vs State of H.P.

Sureshwar Thakur, J.—The petitioner, prays for rendition of a mandamus to the respondents qua implementation of the order of allotment comprised in Annexure PD of 7th April, 2000, whereby Shop No. 17, has been allotted to the petitioner. However, the said premises are occupied by respondent No. 5. On notice being issued to the respondents and replies having come to be furnished therein, it, is unraveled that respondents No. 1 to 3 do not oppose the grant of relief, as prayed for. However, a, tenacious resistance to the according of relief in favour of the petitioner has been expressed by the respondent No. 5. The counsel for the respondent No. 5, has, canvassed before this Court that, in, the face of his having furnished rent or defrayed rent qua shop No. 17, to the respondents No. 1 to 3, hence, he acquires the status of a tenant under the respondents and, is, unevictable therefrom. She further canvasses that he being the recipient of a decree of a Civil Court, in, a Civil Suit wherein respondents No. 1 to 3 were defendants, comprised in Annexure R-5/2, as such, no mandamus can be issued against respondents No. 1 to 3, for theirs being directed to ensure the handing over the vacant possession of the disputed premises i.e. shop No. 17 to the petitioner, in as much, as, theirs having, hence, portrayed their acquiesce to the factum of respondent No. 5 being in legal possession of the disputed premises and having a right to continue in possession thereof. Lastly, it is submitted by the learned counsel for respondent No. 5, that in the face of the petitioner having tendered rent qua Shop No. 18, as such, the latter has acquired tenancy qua shop No. 18 and has, as such, forgone his right or waived his right, if any, qua shop No. 17, in, pursuance of Annexure-PD and is concomitantly barred from claiming its possession from respondent No. 5.

Learned counsel for the parties heard at length.

It is apparent that Annexure-PD, unequivocally, voices the fact of allotment of the disputed premises having been made in favour of the petitioner. Now, it is to be gauged, whether, in the face of Annexure R5-2, Annexure PD has any subsisting or surviving legal force and efficacy. The counsel for respondent No. 5, though, contends that Annexure R5-2 deprives Annexure PD of its tenacity or force. However, to, the considered mind of this Court the said argument ought to falter, for the reason that, a close and circumspect perusal of Annexure R5-2 divulges, that the said order was rendered in pursuance to a compromise having been arrived at inter-se the respondent No. 5 and respondents No. 1 to 3, the, petitioner wherein is not reflected to be a party. Therefore, Annexure R5-2 being not inter partes, the petitioner and respondent No. 5, the conclusion which is ought to be drawn or arrived at, is, that Annexure R5-2 cannot be construed to be binding upon the petitioner nor also it has any binding force so as to overwhelm and overcome the effect of Annexure PD. Moreso, when liberty is reserved in Annexure R5-2, in respondents No. 1 to 3, to, evict the respondent No. 5, in, due process of law. The expression ''in due process of law'' occurring in Annexure R5-2 gives leverage to the respondent No. 5, to, on its strength give momentum to Annexure PD wherein allotment of shop No. 17 has been made in favour of the petitioner. Besides the import of and effect of the expression ''due process of law'' occurring, in, Annexure R5-2 does not derogate nor dilute the effect of Annexure PD, rather for reiteration, it gives sinew, to, the respondents to while relying upon the said expression communicating the reservation of a liberty by the Civil Court, in respondents No. 1-3 to claim repossession of the disputed premises from respondent No. 5, in accordance with law. Therefore, it does not, also, consequently whittle or trammel the jurisdiction of the writ court, to, proceed to issue a writ of mandamus to respondents 1 to 3, to, comply with the mandate of Annexure PD. The other submission made by the learned counsel for the respondent No. 5 is that he having tendered rent qua disputed premises, hence, he acquires the status of a tenant of the disputed premises, under the respondents No. 1 to 3, also does not carry any force, as, receipts of rent, do not also carry any weight or legal value, so as to derogate or oust the effect of the orders comprised, in, Annexure PD. Besides, for reiteration, when liberty was reserved in the defendants No. 1 to 3 to get the respondent No. 5 evicted in due process of law, obviously, when the premises remained previously unallotted to respondent No. 5 by respondents No. 1 to 3, as also when Annexure R5-2 does not either whittle down or truncate the jurisdiction of this Court, sequelly, then the said factum of tendering of rent qua the disputed premises by respondent No. 5 to respondents No. 1 to 3 would not either erode or overwhelm the effect of the allotment of the disputed premises, which was previously made in favour of the petitioner. Rather the clout and sway of Annexure PD remains uneroded, even by the mere factum of tendering of rent and even if a relationship of landlord and tenant has been by the factum of tendering of rent come into being inter-se the respondent No. 5 and respondents No. 1 to 3. The said relationship is ceaseable, by, adoption of due process of law qua whose adoption by the respondents No. 1 to 3 for getting the disputed premises vacated from the respondent No. 5, liberty is reserved in favour of respondents No. 1 to 3 under Annexure R5-2. The said relationship, if any, has come into being, is, both de-establishable as well as abrogable. Lastly, the learned counsel for respondent No. 5 has submitted that the petitioner in the wake of his having furnished or tendered rent qua shop No. 18, is, estopped from claiming any tenancy right qua Shop No. 17. However, the said argument does not hold any water as the said tendering of rent was on a date preceding to the date of allotment of the disputed shop made in favour of the petitioner. Consequently, in its wake, it does not deprive him of his right to claim a right of possession of Shop No. 17 from the respondents.

Consequently, in view of the aforesaid discussion manifesting the fact that there is no strength in the contention of respondent No. 5, the writ petition is allowed. Respondents No. 1 to 3 are directed to ensure that respondent No. 5 is evicted from the disputed premises in accordance with law and after eviction therefrom of respondent No. 5, the petitioner, be handed over its possession (i.e. shop No. 17). Moreover, it is ordered that before the petitioner occupies or possesses Shop No. 17, he shall furnish an undertaking to respondents No. 1 to 3 that he shall on occupying or possessing Shop No. 17 shall vacate Shop No. 18.