Ravi Kumar Bajpayee vs Surya Prakash

S.P. Mehrotra, J.—This writ petition has been filed under Article 226 of the Constitution of India, interalia, praying for quashing the order dated 20th May, 2003 (Annexure 5 to the Writ Petition) passed by the learned IInd Additional District Judge, Kanpur Nagar (Revisional Authority) in so far as, it has rejected the Application (Paper No. 19C) filed by the petitioner.

The dispute relates to an accommodation in House No. 46/127, Badshahi Naka, Kanpur Nagar, the details whereof are given in the allotment order dated 23rd May, 2002 under Section 16 (1)(a) of the U.P. Act No. XIII of 1972 (in short �the Act�) referred to hereinafter. The said accommodation has, hereinafter, been referred to as �the disputed accommodation�.

From the allegations made in the Writ Petition, it appears that the allotment order dated 23rd May, 2002 under Section 16 (1)(a) of the Act was passed in favour of the petitioner in respect of the disputed accommodation. Copy of the said order dated 23rd May, 2002 has been filed as Annexure 1 to the Writ Petition.

It further appears that the respondent/landlord filed a Review Application dated 26th June, 2002, under Section 16 (5) of the Act, interalia, praying for setting aside the said allotment order dated 23rd May, 2002. Copy of the said Review Application dated 26th June, 2002 has been filed as Annexure 2 to the Writ Petition.

It further appears that subsequent to the filing of the said Review Application, the respondent/landlord also filed a Revision under Section 18 of the Act on 1st July, 2002 against the said order dated 23rd May, 2002. The said Revision was registered as Rent Revision No. 29 of 2002. Copy of the Memorandum of Revision of the said Revision has been filed as Annexure 3 to the Writ Petition.

It further appears that during the pendency of the said Revision, an Application (Paper No. 19C) dated 622003 was filed on behalf of the petitioner, interalia, praying for dismissing the said Rent Revision as not maintainable on the ground that the respondent/landlord had already filed a Review Application under Section 16 (5) of the Act, which was still pending, and the said Rent Revision was a subsequent proceeding against the same allotment order. Copy of the said Application (Paper No. 19C) dated 622003 has been filed as Annexure 4 to the Writ Petition.

It further appears that against the said Application (Paper No. 19C) filed on behalf of the petitioner, the respondent/landlord filed Objection (Paper No. 20C).

The said Application (Paper No. 19C) and the said Objection (Paper No. 20C) along with certain other applications were considered by the learned IInd Additional District Judge, Kanpur Nagar (Revisional Authority).

By the Order dated 20th May, 2003 (Annexure 5 to the Writ Petition), the Revisional Authority dismissed the said Application (Paper No. 19C). It may be mentioned that another Application (Paper No. 22C) and the Objection thereto (Paper No. 23C) were also decided by the said Order dated 20th May, 2003, but the same are not the subjectmatter of the present Writ Petition.

Thereafter, the petitioner has filed the present Writ Petition seeking the reliefs mentioned above.

I have heard Shri P. N. Khare, learned counsel for the petitioner.

Shri Khare submits that the Revisional Authority, while dismissing the said Application (Paper No. 19C) filed on behalf of the petitioner misconstrued the case law cited before it. It is submitted by Shri Khare that the respondent/landlord having availed of the remedy of filing Review Application under Section 16 (5) of the Act, was precluded from simultaneously proceeding with Revision under Section 18 of the Act. He has placed reliance on the following decisions:

(1) Mumtaz Khan and others v. 1st Additional District Judge, Bahraich and others, 1993 (2) ARC 99.

(2) Pradeep Tandon v. Rent Control & Eviction Officer, Moradabad and others, 2001(1) JCLR 635 (All) : 2001 (1) ARC 443.

It is further submitted by Shri Khare that the decision in Smt. Amar Devi v. VIIth Additional District Judge, Saharanpur and others, 1992 (2) ARC 314, relied upon by the Revisional Authority is not applicable to the present case.

I have considered the submissions made by Shri Khare, and I find myself unable to accept the same.

Section 16 of the Act provides as follows :

�16. Allotment and release of vacant building.(1) Subject to the provisions of the Act, the District Magistrate may by order

(a) require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order); or

(b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order):

[Provided that in the case of a vacancy referred to in sub section (4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a).]

(2) No release order under clause (b) of subsection (1) shall be made unless the District Magistrate is satisfied that the building or any part thereof or any land appurtenant thereto is bona fide required, either in its existing form or after demolition and new construction, by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, calling or where the landlord is the trustee of a public charitable trust, for the objects of the trust, or that the building or any part thereof is in a dilapidated condition and is required for purposes of demolition, and new construction, or that any land appurtenant to it is required by him for constructing one or more new buildings or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings :

Provided that no application under this subsection shall be entertained for the purposes of a charitable trust the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste or place of birth.

(3) The allotment order shall specify

(a) whether the building shall be used by the tenant for residential or nonresidential purposes;

(b) in the case of business purposes, the names of proprietors partners of the business;

(c) the date, which shall not be earlier than seven days after the date of the order, by which the landlord shall deliver possession to the allottee;

(d) such other particulars as may be prescribed.

(4) Where the allottee or the landlord has not been able to obtain possession of the building, allotted to him or, as the case may be, released in his favour, or any part thereof, [* * *] the District Magistrate, on an application of the allottee or the landlord, as the case may be, may by order evict or cause to be evicted any person named in the order as well as every other person claiming under him or found in occupation, and may for that purpose use or cause to be used such force as may be necessary and put or cause to be put the allottee or the landlord in possession of the building or part.

(5) (a) Where the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with clause (a) or clause (b), as the case may be, of subsection (1), the District Magistrate may review the order :

Provided that no application under this clause shall be entertained later than seven days after the eviction of such person.

(b) Where the District Magistrate on review under this sub section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted, back into possession of the building, and may for that purpose use or cause to be used such force as may be necessary.

(6) If the District Magistrate finds an application given under subsection (5) to be false or frivolous, he shall by order award to the allottee or the landlord, as the case may be, against the applicant special costs which shall not exceed five hundred rupees.

(7) Every order under this section shall, [subject to any order made under Section 18], be final.

(8) The allottee shall, [subject to the provisions of subsection (5) and (9) and Section 18], be deemed to become tenant of the building from the date of allotment or, where he is unable to obtain possession by reason of a stay order or of any other person having occupied or continued to occupy the building, from the date on which he obtains possession.

[(9) The District Magistrate shall, while making an order under clause (a) of subsection (1), also require the allottee to pay to the landlord an advance, equivalent to,

(a) where the building is situated in a hill municipality, one half of the yearly presumptive rent; and

(b) in any other case, one month''s presumptive rent, and on his failure to make or offer the payment within a week thereof, rescind the allotment order.

Explanation.In this subsection the expression �presumptive rent� means an amount of rent which the District Magistrate prima facie considers reasonable having regard to the provisions of subsections (2) and (2A) of Section 9, provided that such amount shall not be less than the amount of rent which was payable by the last tenant, if any.

(10) Nothing in subsection (9) shall be construed to require the District Magistrate to take any evidence or hold any formal inquiry before fixing the presumptive rent of the building allotted, and the amount mentioned in the allotment order as presumptive rent shall be subject to any agreement in writing between the parties or to any subsequent determination of standard rent after formal inquiry under Section 9:

Provided that until the presumptive rent is so revised by agreement or by an order under Section 9, the tenant shall continue to be liable to pay rent according to the presumptive rent specified in the allotment order, so however, that any subsequent order under Section 9 shall relate back to the date of commencement of the tenancy.]�

Section 18 of the Act, which makes provision for filing revision against a final order passed under Section 16 or Section 19 of the Act, lays down as under:

�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.

(2) The revising authority may confirm or rescind the final order made under subsection (1) or may remand the case to the District Magistrate for rehearing, and pending the revision, may stay the operation of such order on such terms, if any, as it thinks fit.

Explanation.The power to rescind the final order under this subsection shall not include the power to pass an allotment order or to direct the passing of an allotment order in favour of a person different from the allottee mentioned in the order under revision.

(3) Where an order under Section 16 or Section 19 is rescinded, the District Magistrate shall, on an application being made to him on that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose use or cause to be used such force as may be necessary.]�

Section 19 of the Act provides as follows :

�19. Reallotment in the event of landlord abusing the release order.Where a building or part thereof is released in favour of the landlord under Section 16, or on [revision under Section 18], on the ground that it was required by the landlord for occupation by himself or any member of his family or any person for whose benefit it was held by him, or for the objects of the trust of which he was trustee, or on the ground that it was required for purposes of demolition and new construction, and the landlord either puts or causes to be put into occupation any person different from the person for whose occupation, according to the landlord''s representation, it 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 District Magistrate may for sufficient cause allow from the date of his obtaining possession or in the case of a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, the District Magistrate or, as the case may be, the District Judge, on an application being made in that behalf within three months from the date of such act or omission, may after giving to the landlord an opportunity of being heard, revoke the order of release in whole or in part, and on such order being made, the District Magistrate may treat the building or part as vacant and allot it as such.�

A perusal of Section 16, subsection (5) of the Act, which makes provision for review by the District Magistrate, shows that the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order may seek review of such order on the ground that the same was not made in accordance with clause (a) or clause (b), as the case may be, of subsection (1) of Section 16 of the Act. There is no bar in subsection (5) of Section 16 to the filing of review application, in case, a revision under Section 18 has been filed by the person applying for review. This is unlike Order XLVII Rule 1 of the Code of Civil Procedure, 1908, wherein a review application subsequent to the filing of an appeal cannot be filed. Order XLVII Rule 1 of the Code of Civil Procedure is quoted below :

�1. Application for review of judgment.(1) Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

[Explanation.The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]�

A perusal of Section 18 of the Act shows that any person aggrieved by a final order under Section 16 or Section 19, may prefer a revision to the District Judge on the grounds mentioned in subsection (1) of Section 18 of the Act. Such revision may be filed within 15 days from the date of the order under Section 16 or Section 19, as the case may be.

From a perusal of Section 18 of the Act, it is evident that there is no bar to the filing of revision or to the entertainment thereof under Section 18 of the Act, if the person filing revision, has also filed a review application under Section 16 (5) of the Act.

In view of the aforesaid provisions, it is apparent that a person can file review application under Section 16 (5) of the Act, and he can also file revision under Section 18 of the Act. It is not material whether review application under Section 16 (5) of the Act or the revision under Section 18 of the Act is filed first.

As already noted above, from the provisions of Order XLVII Rule 1 of the Code of Civil Procedure, 1908, it is evident that a Review Application under Order XLVII Rule 1 of the Code of Civil Procedure cannot be filed, if an appeal has already been filed by the person aggrieved against the decree or order in question. Even if the principle underlying the said provision of Order XLVII Rule 1 of the Code of Civil Procedure were to be applied to the review application under Section 16 (5) of the Act, still the said principle will not be applicable in the present case, as in the present case, the revision was filed subsequent to the filing of review application. Therefore, even if the principle underlying Order XLVII Rule 1 of the Code of Civil Procedure, 1908 were to be applied to review application under Section 16 (5) of the Act, the said situation has not arisen in the present case.

In view of the aforesaid discussion, it is evident that the revision under Section 18 of the Act filed subsequent to the filing of the review application under Section 16 (5) of the Act, cannot be held to be not maintainable on the ground that the respondent/landlord is simultaneously pursuing the two remedies.

As discussed above, there is no bar in the relevant provisions of the Act to the entertainment of a revision under Section 18 of the Act even if a review application under Section 16 (5) of the Act has already been filed by the person concerned.

In Smt. Amar Devi case (supra), a learned Single Judge of this Court held as follows (paragraph 1 of the said ARC):

�(1) Heard learned counsel for petitioner and Shri R. K. Jain, learned counsel for respondents. This writ petition has been filed against the order dated 1731992 by which learned VIIth Additional District Judge, Saharanpur, has refused to stay the operation of the order dated 331992 by which the premises in dispute have been allotted in favour of respondent No. 4 Rajesh Kumar Gupta. Revision has been filed by the petitioner claiming herself to be coowner and colandlord of the premises in dispute. It is her case that she had no notice of the proceedings before the Rent Control and Eviction Officer and the order of allotment has been passed behind her back. The learned revisional authority, however, rejected the application of the petitioner by an interlocutory order on the ground that she has not taken recourse to Section 16(5)(a) of the Act and she was not party to the proceedings. The approach of the learned revisional Court was not correct. In law, the petitioner could approach the revisional Court as well as she could also take recourse to the aforesaid provision of the Act, for review �.

(Emphasis supplied)

In my opinion, the said decision is fully applicable to the present case. The submission of Shri Khare, learned counsel for the petitioner that the said decision is not applicable to the present case, in my view, cannot be accepted.

As regards the decision in Mumtaz Khan case (supra), a learned Single Judge of this Court, in the said case, was concerned with the provisions of Order XXXIX of the Code of Civil Procedure. It was laid down that if a temporary injunction was granted ex parte then the defendant could either file objection seeking to get the ex parte injunction vacated or could file appeal under Order XLIII Rule 1 (r) of the Code of Civil Procedure. It was further held that it was not open to the defendant to avail both the said remedies simultaneously. Reliance was placed on the Full Bench decision of this Court in Zila Parishad v. Brahm Rishi Sharma, AIR 1970 Allahabad 376 (FB).

The decision in Mumtaz Khan case, as noted above, was dealing with the remedies in respect of ex parte temporary injunction granted under the provisions of Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. The said decision, in my opinion, has no application to the present case w herein the question of simultaneously pursuing the remedies of review under Section 16 (5) of the Act and revision under Section 18 of the Act is involved.

As regards, the decision in Pradeep Tandon case (supra) relied upon by the learned counsel for the petitioner, the said decision laid down that a person, who had already filed revision under Section 18 of the Act, which was still pending, could not file a writ petition under Article 226 of the Constitution of India impugning the order which had already been impugned under Section 18 of the Act. The said decision evidently was rendered on the basis of the principle that a person having availed of an alternative remedy cannot invoke extraordinary writ jurisdiction under Article 226 of the Constitution of India. The said decision, in my opinion, has no application to the present case.

In view of the aforesaid discussion, I am of the opinion that the Revisional Authority has not committed any illegality in passing the impugned order rejecting the application (Paper No. 19C) filed on behalf of the petitioner.

The present writ petition, in my opinion, lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed.

W.P. accordinglydismissed.