R.S.Sinha vs Addl.Distt.Judge VII, Lucknow and others

H.N. Tilhari, J.—This petition under Article 226 of the Constitution of India arises out of the judgment and order dated 11892 passed by Additional District JudgeVII, Lucknow, in a revision under Section 18 of U.P. Act no. XIII of 72 which order has been annexed as annexure6, to the writ petition. The facts of the case briefly are that oppositeparty No. 3 Gopal Das has been the ownerlandlord of House No. 206/62 Bagh Sherjung, Lucknow, and Smt. Manjulata Saran was tenant in occupation thereof. In the year 1981 the tenant of the accommodation, namely, Smt. Manjulata had been transferred and she left the accommodation. The said accommodation was occupied by the petitioner Shri R.S. Sinha. The position as admitted by the learned counsel for the petitioner is that Shri Sinha who had entered into possession of the accommodation in dispute after its vacation by Smt. Manjulata Saran, had not got any allotment order in his favour at the time he entered into occupation of that accommodation. Shri Ram Autaropposite party No. 4 moved an application for allotment of that accommodation in his favour and by order dated 31588 the said accommodation had been allotted in favour of oppositeparty No. 4 by the City Magistrate/Rent Control & Eviction Officer, Lucknow, opposite party No. 2. The petitioner''s case is that when he came to know about the order dated 31588 i.e. allotment order which had been passed in favour of oppositeparty No. 4 the petitioner made enquiries and thereafter on 10888 the petitioner filed a review application under Section 16(5) of U.P. Act No. XIII of 1972 against the aforesaid allotment order dated 31588. The petitioner''s case is that he raised a number of pleas therein which had been incorporated in paragraph 10 of the writ petition. On 71088 oppositeparty No. 4 Ram Autar filed objection against the application for review moved by the petitioner under Section 16(5) of the Act. By order dated 14990 oppositeparty No. 2 recalled the order of allotment passed by him and fixed 41090 as the next date for rehearing of the matter of allotment. Having felt aggrieved from order dated 14990 passed by oppositeparty No. 2, a revision application under Section 18 of U.P. Act No. XIII of 72 was filed by oppositeparty No. 4 before the District Judge, Lucknow namely, Rent Revision No. 2 of 1991 Ram Autar v. R.S. Sinha and others By judgment and order dated 11892 the learned VII Additional District Judge, Lucknow allowed the revision of oppositeparty No. 4 and set aside the order dated 14990 which had been passed by oppositeparty No. 2 under Section 16(5) of the Act. Having felt aggrieved from the order dated 11 892 passed by VI Additional District Judge, Lucknow, the petitioner has filed this petition under Article 226 of the Constitution of India for a writ of certiorari quashing the order dated 11892 passed by oppositeparty No. 1, contained in annexure1 as well as for a writ, order or direction in the nature of mandamus commanding the oppositeparty No. 2 not to implement or enforce the order dated 11892 as well as not to evict the petitioner. Counteraffidavit has been filed by the oppositeparties to the writ petition.

I have heard Shri Anil Kumar, learned counsel for the petitioner as well as Shri P. C. Srimal learned counsel for oppositeparty No. 4. Learned Additional District JudgeVII has allowed the revision taking the view that review petition under Section 16(5) of the Act was not maintainable at the instance of Shri R.S. Sinha, and, as such, opposite party No. 2 could not entertain the same, nor could it set aside the order of allotment, and, as such, the order dated 14990 was held by the Additional District Judge to be illegal, null and void and was set aside. Learned counsel submitted that the order passed by Additional District Judge is illegal. The petitioner had a right to seek allotment of the accommodation. Simply because he is in unauthorised possession for want of an allotment order in his favour, it cannot be said that his matter or case for allotment cannot be considered. On behalf of oppositeparty No. 4 Shri P.C. Srimal submitted that short question in the writ petition is whether an application for review under Section 16(5) of the Act could be moved and be entertained at the instance of one who is in unauthorised occupation and he submitted that if the application under Section 16(5) of the Act is not maintainable at the instance of the petitioner the order of Rent Control & Eviction Officer recalling the order of allotment was without jurisdiction. The answer to the short question will be dependent on interpretation of Section 16(5)(a) of the Act.

Section 16 of the Act deals with the allotment and release of vacant building, it provides an exhaustive procedure that after the allotment or release of an accommodation in favour of the allottee or the landlord, the allotment or the landlord had not been able to get possession, he may proceed under Section 16(4) of the Act and then the matter may be heard.

Section 16(5) of the Act provided for a review of an order made under sub section (1) of Section 16 of the Act. Section 16(5) of the Act reads as under :

"16(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 maybe, 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 subsection 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."

From the opening words of Section 16(5)(a) of the Act "where the landlord or any other person claiming to be the lawful occupant of the building or part thereof" per se indicates who is person competent to move an application seeking review of order passed under Section 16( 1) of the Act i.e. either landlord or any other person who claims himself to be lawful occupant. The expression "lawful occupant" means occupant in accordance with the requirements of law. Section 11 of the Act per se creates a bar against letting out of accommodation without an allotment order. It reads as under :

"11. Prohibition of letting without allotment order,Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16."

Section 13 of the Act puts a restriction and a bar against occupation of a building or accommodation otherwise than under allotment order and it declares that a person in occupation of a building or accommodation without allotment order shall be deemed to be an unauthorised occupant of such building or part thereof. Section 13 of the Act may be quoted as under :

"13. Restriction on occupation of building without allotment or release,Where a landlord or tenant ceased to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part."

Thus a reading of Sections 11 and 13 per se shows that a person who occupies an accommodation without an allotment order in his favour even if with the consent of the landlord, the said occupation is and is to be deemed in the eye of law to be unauthorised occupation of the house or building. A deeming clause has got its own effect and creates a legal fiction. Occupation with the consent of the landlord may in ordinary parlance not be said to be unauthorised occupation because of the consent of the landlord but even in such cases where a person occupies a building with the consent of the landlord but without an allotment order in his favour such occupation in the eye of law is deemed to be unauthorised occupation i.e. such a person occupies it as unlawful occupant. In the present case it being the admitted position that the petitioner had no order of allotment in his favour when he occupied the accommodation in dispute, it might have been occupied with the consent of the landlord. In the present case the petitioner having occupied the accommodation without allotment order in his favour his occupation was unlawful occupation in view of the legal fiction created by the deeming clause under Section 13, and that being the position the petitioner did not satisfy the first elementary and preliminary condition for being entitled to move an application under section 16(5) (a) of the Act, and, as such, in my opinion, the learned Additional District Judge was not wrong in taking the view that petitioner''s application was not maintainable and, therefore, the order dated 14990 was liable to be set aside by him in exercise of revisional jurisdiction. The learned counsel submitted that revision was not maintainable, that submission is without substance. Section 18 of the Act is para materia with the provisions of Section 115 of the Code of Civil Procedure. Here was a case where the Rent Control and Eviction Officer usurped the jurisdiction by entertaining an application moved by a person not authorised and entitled to move and so the order passed by Rent Control & Eviction Officer did suffer from error of jurisdiction and, as such the learned Additional District Judge was within his jurisdiction to entertain the revision and to set aside the order dated 14990. The learned counsel for the petitioner in support of his contention tried to place reliance on the decision in Geep Industrial Syndicate Ltd. v. Rent Control & Eviction Officer reported in (1982 AWC 461). In that decision also it was laid down that a person who occupies an accommodation without an allotment order was not only to be an unauthorised occupant but also be liable to prosecution under Section 31 of the Act and the possession of such a person being unauthorised cannot be recognised in the eye of law. The learned counsel tried to rely on paragraph 20 of this judgment where a reference to the Supreme Court''s decision has also been given but those observations do not apply to the present case. The said observations may be applicable in cases where proceedings under Section 16(4) of the Act are taken. No other point has been pressed.

Thus considered, in my opinion, there is no error of jurisdiction or error of law apparent on the face of record, which could be said to have been committed by oppositeparty No. 1. The order is perfectly valid and legal and there is no merit in the writ petition. The writ petition is hereby dismissed. Costs of the petition are made easy. Interim order, if any, shall stand vacated.