Rani Devi and Another vs 3Rd Additional District Judge, Faizabad and Another

R.H. Zaidi, J.—By means of this petition filed under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 17.3.1986 passed by the III Additional District Judge, Faizabad allowing a revision arising out of the proceedings under Section 16(5) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.XIII of 1972), for short ''the Act'' filed by the respondent No.2 against the order dated 2.5.1983 passed by the Rent Control & Eviction Officer, Faizabad.

Relevant facts of the case giving rise to the present petition, in brief, are that the petitioners No.1 and 2 are coowners and landlords of the residential building No.69, situated at Mohalla Sahebganj, Faizabad City, hereinafter referred to, the ''building in dispute''. The said building in dispute was under allotment and under the tenancy of Manohar Lal Sharma before 1973. On an application filed by petitioner No.1 under Section 21(1)(a) of the Act, the building in dispute was released in her favour by the Prescribed Authority. It has been stated that the mother and the brother of petitioner No.1 used to live at Varanasi; that the leg of her mother was fractured, she was consequently confined to bed and was under medical treatment at Varanasi. Petitioner No.1 used to go to Varanasi to look after her mother but she continued to reside at Faizabad permanently to look after her considerable agricultural land situated there. Sometimes while going to Varanasi, petitioner No.1 used to lock the building in dispute. Sometimes it was left open for temporary use and under the supervision of her near relations. Once, while the petitioner was at Varanasi and the building was locked, one Bhagwan Din Pandey applied for allotment of the said building on 6.2.1979 before the Rent Control and Eviction Officer who, in turn, asked for the report of the Rent Control Inspector by his order dated 17.2.1979. The Rent control Inspector inspected the building without any intimation to the petitioner No.1 from outside and submitted his report that there were two owners of the building in dispute, i.e. petitioners, that the building was locked for quite sometime and expressed his opinion that the same could be treated as vacant, in the inspection report dated 27.2.1979. The Rent Control and Eviction Officer, on the basis of the said report, called the parties. When the petitioner No.1 came to know about the said allotment proceedings, she filed her objections on 13.7.1979 before the Rent Control & Eviction Officer contending that the building in dispute was released in her favour under Section 21(1)(a) of the Act, the same was neither vacant nor was likely to fall vacant and she did not want to let out the said building to anyone. She requested that it may not be allotted in favour of any person. The copies of the objections filed by the petitioner No.1 are contained in Annexure 3 and 4 to the writ petition. The Rent Control & Eviction Officer, ignoring the said objections and contrary to the provisions of the Act and the Rules framed thereunder, declared the building in dispute as vacant by his order dated 22.8.1979 merely because the same was found locked by the Rent Control Inspector. The petitioner No.2 who was in government service and was holding a transferable job, as soon as he came to know about the declaration of vacancy, filed his objection against the order dated 22.8.1979, on 5.9.1979. the Rent Control & Eviction Officer ignoring the objections of the petitioners and the provisions of the Act, allotted the building in dispute by his order dated 17.10.1979 in favour of the respondent No.2. The respondent No.2, without following the procedure prescribed under the law, broke open the lock and entered the building forcibly on the strength of the order of allotment in his favour. He has also stolen and misappropriated the properties of the petitioners. The sisterinlaw of the petitioner No.2, as she came to know about the said illegal activities of respondent No.2, filed a first information report at police station Kotwali, Faizabad against the respondent No.2 about the said occurrence, a copy of which is contained in Annexure 8 to the writ petition. Thereafter, petitioner No.2 claiming himself as coowner and colandlord of the building in dispute filed a review application under Section 16(5) of the Act contending that the orders of declaration of vacancy and allotment were not passed in accordance with the provisions of the Act by the Rent Control & Eviction Officer, the same were liable to be reviewed and set aside. On the application filed by the petitioner No.2 notice was issued to the respondent No.2 who filed his objection on receipt of the notice from the office of the Rent Control & Eviction Officer, mainly contending that the review application filed by the petitioner No.2 was legally not maintainable. The Rent Control & Eviction Officer, after hearing the parties allowed the review application by his judgment and order dated 2.5.1983 holding that the building in dispute was released in favour of petitioner No.1 while the petitioner No.2 was in government service and that the same was never let out nor the order of release was in any manner violated in terms of Section 24 of the Act, the same was, therefore, out of the purview of the Act and could not be allotted. The respondent No.2, challenging the validity of the order dated 2.5.1983, filed a revision before the respondent No.1. The respondent No.1 although held that review application filed by the petitioner No.2 was maintainable but allowed the revision after reappraising the evidence on the record and without reversing the aforesaid findings recorded by the Rent Control & Eviction Officer, by his judgment and order dated 17.3.1986. Hence the present petition.

On the present petition, notices were directed to be issued to the respondents on 6.5.1986. After service of notice upon respondent No.2, a counter affidavit, in reply of the facts stated in the writ petition, was filed by respondent No.2 controverting the facts stated in the writ petition and asserting that the order of allotment was validly passed in his favour by the Rent Control & Eviction Officer. The petitioners also filed a rejoinder affidavit reiterating and reasserting the facts stated in the writ petition and claiming that the order passed by the respondent No.1 was wholly illegal and without jurisdiction, the same was, therefore, liable to be quashed.

Learned counsel appearing for the petitioners vehemently urged that admittedly the building in dispute was released in favour of petitioner No.1, the same went out of the purview of the Act and could not be allotted unless it was let out or order of release was violated by the petitioners in any manner in terms of Section 24 of the Act. The Rent Control & Eviction Officer initially acted illegally and without jurisdiction and allotted the building in dispute in favour of respondent No.2 but the said mistake was rectified subsequently and the order of allotment was rightly set aside holding that the building in dispute was neither let out by the petitioners nor order of release was violated by them in any manner. It was also held that the objection/application under Rule 10(9) was pending disposal, therefore, building in dispute could not be allotted in favour of the respondent No.2 and rightly cancelled the order of allotment. It was urged that the revisional authority has exceeded its jurisdiction in reappraising the evidence and setting aside the order passed by the Rent Control & Eviction Officer without lawfully reversing the findings recorded by him, therefore, the impugned order passed by the revisional authority was liable to be quashed. On the other hand, learned counsel for the respondent No.2 supported the validity of the order passed by respondent No.1. It was urged that the building in dispute was legally allotted in favour of the said respondent by the Rent Control & Eviction Officer after following the procedure prescribed for the same and the petitioner No.2 had no right to file the review application as he was neither a landlord nor in lawful occupation of the said building. The revisional authority rightly set aside the order passed by the Rent Control & Eviction Officer. This petition has got no merits, the same was, therefore, liable to be dismissed.

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

The questions which arise for consideration and decision in the present case are:

Whether the Rent Control & Eviction Officer had the jurisdiction to allot the building in dispute?

Whether the building in dispute was rightly allotted by the Rent Control & Eviction Officer after following the procedure prescribed for the same?

Whether the review application filed by the petitioner No.2 was legally maintainable?

Whether respondent No.1 was right in setting aside the order passed by the Rent Control & Eviction Officer reviewing and setting aside the earlier order of allotment and declaration of vacancy?

It is not disputed that the petitioners are coowners of the building in dispute since very beginning and that it was also so reported by the Rent Control Inspector in his report, referred to above. It is also admitted that the building in dispute was in the tenancy of Manohar Lal Sharma before 1973. It is also not disputed that the building in dispute was released in favour of the petitioner No.1 vide order dated 15.12.1973 and that the order of declaration of vacancy and allotment were passed on the basis of the report submitted by the Rent Control Inspector who reported that there were two coowners, i.e. petitioners, of the building in dispute, that the building in dispute was locked for quite sometime, in the inspection made from outside the building, in the absence of the petitioners and inspite of the objections raised by petitioner No.1 to the effect that the building in dispute was neither vacant nor the same was likely to fall vacant and that she was in occupation of the said building and did not want to let it out to any one. Subsection (5) of Section 21 of the Act provides as under:

�(5) On an order being made under [subsection (1), or subsection (1A) or subsection (2)], the building or part or appurtenant land, as the case may be, shall stand released in favour of the landlord:

Provided that on the occurrence of any of the circumstances mentioned in Section 24, any building or part thereof (but not appurtenant land alone) released as above, shall, without prejudice to the provisions of Section 24, be deemed to become again subject to allotment in accordance with Chapter III.�

A reading of the proviso of subsection (5) of Section 21 of the Act shows that a building which is released under Section 21 goes out of the purview of the Act and can be again subject to allotment on the occurrence of any of the circumstances mentioned in Section 24. Section 24 of the Act provides as under: (only relevant quoted)

�24. Option of reentry by tenant: (1) Where a building is released in favour of the landlord and the tenant is evicted under Section 21 or on appeal under Section 22, and the landlord either puts or causes to be put into occupation thereof any person different from the person for whose occupation according to the landlord''s representation, the building was required, or permits any such person to occupy it, or otherwise puts it to any use other than the one for which it was released, or as the case may be, omits to occupy it within one month or such extended period as the prescribed authority may for sufficient cause allow from the date of his obtaining possession or, in the case a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, or in the case of a building which was proposed to be demolished, omits to demolish it within two months or such extended period as the prescribed authority may for sufficient cause allow from the date of his obtaining possession, then the prescribed authority or, as the case may be, the District Judge, may, on an application in that behalf within three months from the date of such act or omission, order the landlord to place the evicted tenant in occupation of the building on the original terms and conditions, and on such order being made, the landlord and any person who may be in occupation thereof shall give vacant possession of the building to the said tenant, failing which, the prescribed authority shall put him into possession and may for that purpose use or cause to be used such force as may be necessary.�

Admittedly, the building in dispute was released in favour of the petitioner for residential purposes only. A reading of the aforesaid section reveals that reentry of a tenant in such a building or allotment is permissible where the building in dispute is let out to any other person or the release order is violated in the sense the building is not used for the purpose it was got released. The Rent Control & Eviction Officer while dealing with the review application held as under:

The aforesaid finding recorded by the Rent Control & Eviction Officer was a finding of fact which was based on the relevant evidence on record. Respondent No.1 without reversing the said finding recorded by the Rent Control & Eviction Officer in accordance with law, reversed the order passed by him illegally and in excess of his jurisdiction. It is not the case of respondent No.2 that the building in dispute was let out to any one or the order of allotment was breached in any manner. His case and the report of the Rent Control Inspector were to the effect that at the time of inspection, the building in dispute was found locked, therefore, the same should be deemed vacant. According to the petitioners, the petitioner No.1 at the relevant time went to Varanasi to look after her ailing mother. In such a situation the said house could not be declared vacant nor the same could be allotted. Further before the house was allotted, the petitioner No.1 filed two objections, referred to above, contending that the house was not vacant and she was not willing to let out the same, therefore, the impugned order passed by respondent No.1 was wholly illegal and without jurisdiction in view of clause (a) of subrule (9) of Rule 10 of the Rules framed under the Act, as after release a building is to be treated as a building which was beyond the purview of the Act as the same was never let out before. Clause (a) of the aforesaid rule is quoted below:

�(a) if the landlord intimates the District Magistrate within the said period that he does not want to let out the building, it shall not be allotted.�

So far as following, the procedure prescribed for allotment by the Rent Control & Eviction Officer is concerned, he has apparently not followed the provisions of Rules 8, 9 and 10 of the Rules framed under the Act. The provisions of Rules 8, 9 and 10 have been held to be mandatory by the apex Court and this Court in various decisions. Admittedly, the inspection of the building in dispute was not made after service of notice upon and in presence of the petitioners, in spite of the fact that the Rent Control & Eviction Officer has specifically reported that there were two coowners of the building in dispute, i.e. petitioners. Further, in spite of the objections filed by the petitioner No.1 to the effect that she did not want to let out the building in dispute, the building in dispute was allotted in favour of respondent No.2 contrary to the provisions of Rule 10(9) (a). It has been stated that petitioner No.2 has given his consent for allotment in favour of one Bhagwan Din, although, in paragraph No.16 of the counter affidavit, it has been stated by respondent No.1 as under:

�����but on account of the fact that the premises was never released in his favour so he was not competent to nominate any one.�

Further, the application filed by Shri Bhagwan Din was not disposed of and the allotment order was passed in favour of the respondent No.2. Thus, the procedure prescribed under the Act and the Rules for allotment of a building, which was already released, was not followed by the Rent Control & Eviction Officer and the building was illegally declared vacant and allotted in favour of the respondent No.2.

So far as the maintainability of the review application is concerned, it is not disputed that before 1973, the building in dispute was in the tenancy of Manohar Lal Sharma and the petitioners were colandlords and coowners of the same. The review application was filed by petitioner No.2 pleading that he was the coowner and colandlord. Paragraph No.1 of the review application is quoted below:

The review application could be filed after impleading all the colandlords either as applicants or as respondents. A reference in this regard may be made to a decision in the case of Suraj Prasad v. Vth Additional District Judge, Etah and others, reported in 1986 (1) ARC 375. All the landlords could also press the release application in favour of one of them as held in the case of M/s. Amrit Vanaspati Co. Ltd. v. The Additional District Judge, Ghaziabad and others, reported in 1978 ARC 389. On the record, there was nothing to show that petitioner No.2 was not impleaded in the release application filed in the year 1973 either as one of the applicants or as a respondent. The petitioner No.2 had, thus, full knowledge of the release proceedings and it might be that the building in dispute was released in favour of petitioner No.1 with his consent, express or implied. In either case, he can not be presumed to have lost his status and character as owner and a landlord. Further, admittedly the petitioner No.2 is a coowner of the building in dispute. The building in dispute has never been partitioned by metes and bounds. Under the law, possession of one cosharer is the possession of all. The petitioner No.2 shall, thus, be deemed to be in lawful possession even if the building in dispute was in actual possession of the petitioner No.1. In my opinion, in case of several landlords and coowners, if release order is passed in favour of one landlord, the other coowners and colandlords do not cease to be coowners and colandlords. Thus, if the order of release was passed only in favour of petitioner No.1, as the petitioner No.2 was in government service on a transferable job, that will not affect his status as coowner or colandlord. Further, even assuming that the petitioner No.2 was only a coowner and not a colandlord, still he had the right to make an application for review under subsection (5) of Section 16 of the Act. In inasmuch as being a cosharer/coowner, he shall be deemed to be in lawful possession of the building in dispute. A reference in this regard may be made to the decision of this Court in the case of Amar Nath Mehrotra v. III Additional District Judge, Allahabad, reported in 1995 (1) ARC 155, wherein it was ruled by this Court as under:

�As far as the questions of fact are concerned there is the finding of the R.C. and E.O. himself that the petitioner is one of the coowners of the building in question. It being so, the case of the petitioner is squarely covered by the decision rendered and the principles laid down, by a Division Bench of this Court, in Madhu Gopal v. VIth Additional District Judge, Agra and others, 1988 (2) ARC 1, affirmed by the Supreme Court vide AIR 1989 SC 155. It has categorically been laid down in the aforesaid authorities that a colandlord even if he is not in possession is entitled to move an application for review under Section 16(5) of Act 13 of 1972.�

It is also important to note that the revisional authority itself after dealing with all relevant decisions on the point turned down the contention raised by the respondent no.2 that the application filed by the petitioner No.2 under Section 16(5) of the Act was legally not maintainable and to hold that:

In view of the aforesaid decision and under the circumstances of the present case, in my opinion the review application filed by the petitioner No.2 was legally maintainable and was rightly allowed by the Rent Control & Eviction Officer. The submission made by learned counsel for the respondent No.2, to the contrary, therefore, cannot be accepted. It may also be noted that on the facts of the present case, the order declaring vacancy and of allotment passed by the Rent control & Eviction Officer were wholly illegal and without jurisdiction. They were liable to be ignored. In view of the decision of the Apex Court in the case of Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, it was ruled by the Apex Court as under:

�It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is a pecuniary or territorial, or whether it is in respect of the subjectmatter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.�

So far as the question of jurisdiction of respondent No.1 as revisional authority under Section 18 of the Act is concerned, the provisions of Section 18 of the Act are similar to the provisions of 115 of the Code of Civil Procedure. Section 18 of the Act and Section 115, CPC are quoted below for ready reference: (Only relevant quoted).

�18. Appeal against order of allotment or release: (1) No appeal shall lie from any order under Section 16 or Section 19, whether made before or after the commencement of this section, but any person aggrieved by a final order under any of the said sections may, within fifteen days from the date of such order, prefer a revision to the District Judge on any one or more of the following grounds, namely:

(a) that the District Magistrate has exercised a jurisdiction not vested in him by law;

(b) that the District Magistrate has failed to exercise jurisdiction vested in him by law;

(c) that the District Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity.�

�115. Revision: (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.�

From the reading of the aforesaid sections, it is clear that the revisional authority/Court, as the case may be, may interfere with the order passed by the subordinate authority/Court where they have failed to exercise the jurisdiction vested in them by law or where they have acted in exercise of jurisdiction illegally or with material irregularity. In the present case, the District Magistrate has neither exercised the jurisdiction which was not vested in him nor he has failed to exercise the jurisdiction which was vested in him nor he has acted in exercise of his jurisdiction illegally or with material irregularity while allowing the review application. On the other hand, the revisional authority has acted as appellate authority. He has reappraised the evidence and recorded/substituted his own findings for the findings recorded by the Rent Control & Eviction Officer. The revisional authority has also committed error, which is apparent on the face of the record in reversing the order passed by the Rent Control & Eviction officer without reversing the material findings recorded by him, which was beyond his jurisdiction. In the case of Lallu Lal Gupta v. IX Additional District Judge, Allahabad and others, reported in 1979 ARC 180, it has been held that the power of the revisional authority under Section 18 of the Act are equal to the powers under Section 115 of the Code of Civil Procedure, the revisional authority, thus, exceeded its jurisdiction in interfering with the order passed by the Rent Control & Eviction officer and in allowing the revision filed by respondent No.2.

In view of the aforesaid discussion, it is apparent that the order passed by respondent No.1 is wholly illegal and is without jurisdiction and the same deserves to be quashed and the present petition deserves to be allowed.

The writ petition succeeds and is hereby allowed with costs. The order dated 17.3.1986 is hereby quashed.

(Petition allowed)