Satyendra Srivastava vs Special Judge (SC/ST Act)/Additional District Judge and Another

S.U. Khan, J.-

This writ petition was earlier dismissed by me on 14.5.2003. Thereafter restoration application was filed and learned Counsel for both the parties were heard on restoration application as well as on merit of the writ petition. Cause shown is sufficient. Restoration application is allowed.

The basic question involved in this writ petition is as to whether Petitioner to whom the shop in dispute had been allotted after 5 days of rejection of release application of landlord u/s 16 of U.P. Act No. 13 of 1972 by R.C. and E.O. was a necessary party in the revision filed u/s 18 of the Act by landlord against rejection of his release application. It is also to be decided in the writ petition as to whether revision against rejection of release order is maintainable after allotment of the building and that also without challenging the allotment order.

As far as the first question is concerned it is almost covered by Full Bench authority of this Court in Talib Hasan v. A.D.J., 1986 (1) ARC, wherein it has been held that in the matter of release u/s 16 of the Act prospective allottee has got no say; neither he can contest and oppose the release application nor he can file a revision against order allowing the release application of the landlord. Supreme Court has also approved the said view in Ram Narayan Sharma Vs. Shakuntala Gaur, The authority in 1983 ARC 796, cited by learned Counsel for the Petitioner has been considered by the Full Bench. If prospective allottee cannot challenge release order in revision then he is neither necessary nor proper party in the revision, which is filed by the landlord against rejection of his release application.

As far as the second question is concerned, it has also to be decided against the allottee. In proceedings u/s 16 of the Act there are three stages, first, declaration of vacancy, second, decision of release application if vacancy is declared and third, decision of allotment application in case release application is rejected. The second and third stages are dependent upon order of first two stages as the case may be. However, merit of the order of any of the first two stages has got absolutely no concern with the subsequent stage. In such situation doctrine of merger does not apply. Order declaring vacancy does not merge either with the release or the allotment order. Similarly order rejecting the release application does not merge with the allotment order. Order declaring vacancy or releasing the accommodation are not in the nature of interim orders, which merge with the ultimate order and lose their independent identity after final order. This view is perfectly in consonance with the principle laid down in Ganpat Roy v. A.D.M. 1985 (2) ARC 73 (SC).Hence, in my view, order rejecting release application did not merge with the order allotting the accommodation to the Petitioner. As far as landlord is concerned, his rights stood precipitated by the order passed on his release application, rejecting the same. The order of allotment is dependent upon order rejecting release but not vice-versa. There was, therefore, no need to challenge the allotment order. There is another aspect of the matter if the landlord is not entitled to nominate the allottee, then he cannot have any say in the matter of allotment, hence, in the instant case there was absolutely no ground available to the landlord to challenge the allotment order. It is only unsuccessful applicant for allotment who can challenge the allotment order. I, therefore, hold that the revision against rejection of release was maintainable even though subsequently the accommodation had been allotted to the Petitioner and further it was not necessary for the landlord to challenge the allotment order. The authority in 1983 ARC 656, is not applicable as in that case, release application was filed after allotment order.

As far as merit of the case is concerned, the revisional court hearing revision u/s 18 of the Act being Rent Revision No. 69 of 2001, decided by A.D.J., Kanpur Nagar/ Special Judge dated 17.8.2002, has remanded the matter to R.C. and E.O. R.C. and E.O. had rejected the release application of the landlord on 24.10.2001 on the objections of the Petitioner who was applicant for allotment. As held in the earlier part of the judgment, applicant for allotment has got no right to oppose the release application of the landlord u/s 16 of the Act. The revisional court by the impugned order rightly set aside the order of R.C. and E.O. rejecting the release application and remanded the matter for reconsideration without taking into consideration the objections raised by the Petitioner prospective allottee.

Accordingly, there is no merit in the writ petition and is dismissed.

In the end, learned Counsel for the Petitioner argued that the Petitioner was in possession on the basis of allotment order; hence, he should not be dispossessed until release application is allowed. Even though Petitioner is not legally entitled to continue in possession, however, while dismissing the writ petition, writ court has always got power to grant time to vacate on such conditions as the Court considers proper in the circumstances of the case.

Accordingly Petitioner is granted time to vacate till the decision on the release application by R.C. and E.O. on the following two conditions:

(1) Within one month from today Petitioner files an undertaking before R.C. and E.O. to the effect that within 15 days from the date of the order passed on the release application, Petitioner will handover vacant possession of the premises in dispute to the landlord Respondent.

(2) Within one month from today Petitioner pays rent due till 31.8.2003 from 29.10.2001 (the date of allotment) at the rate of Rs. 1,500 per month after deducting the rent which he may have already paid and continues to pay the rent at the rate of Rs. 1,500 per month to the landlord from September, 2003, onwards by 7th of each succeeding month.

In case of default, Petitioner shall be evicted through process of court by R.C. and E.O. concerned immediately after one month.