Allahabad High Court
Smt. Vijai Jain And Another vs State Of U.P. And Others on 18 April, 2018
Bench: Amreshwar Pratap Sahi, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 40 Case :- WRIT - C No. - 31220 of 2005 Petitioner :- Smt. Vijai Jain And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Anil Kumar Singh,Ankush Tandon,Sarvesh Counsel for Respondent :- C.S.C. Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Shashi Kant,J.
Heard Sri Ankush Tandon, learned counsel for the petitioner no.3.
This is a writ petition filed by three petitioners namely Smt. Vijai Jain, Smt. Bibi Jain and the third petitioner has been transposed as a co-petitioner in terms of the order of the Division Bench dated 9th May, 2007 passed on Impleadment Application No 114283 of 2005.
At the very outset, it may be placed on record that the first two writ petitioners are represented by Sri A.K. Singh, Advocate who has not turned up when the case has been called out.
Learned counsel for the newly impleaded petitioner no.3 Smt. Kusum Mehrotra, Sri Ankush Tandon submits that the petitioner no.2 has died.
The background in which the petitioner no.3 came to be impleaded as such is interesting.
The writ petition was originally filed by only two petitioners Smt. Vijai Jain and Smt. Bibi Jain assailing the order passed by the District Magistrate on 18th February, 2005 whereby in exercise of the powers vested in him under Section 14 of the Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986, the property in question being house no. 48/123 Generalganj, District Kanpur Nagar has been attached. The District Magistrate had issued notices on 27.09.2004 to which a reply was given by the first two writ petitioners in terms of Section 15 and the same was rejected on 18th February, 2005.
On the presentation of the writ petition on the very first day, the following interim order was passed on 25th April, 2005.
" We have heard Shri A.K. Singh, learned counsel for the petitioners and learned standing counsel appearing for respondents. Three weeks thereafter is allowed to the petitioner to file rejoinder affidavit.
List thereafter.
Until further orders of this court, the respondents directed to release the house no. 48/123 Generalgaj Puchkucha, Kanpur Nagar in favour of the petitioners forthwith."
Consequently, the direction was to release the premises in favour of the petitioner nos. 1 and 2.
A counter affidavit was filed on behalf of the State sworn by Mr. Ashok Kumar Ravat, Inspector and Station House Officer, P.S. Cant, District- Kanpur Nagar where taking notice of the interim order dated 25th April, 2005 an averment has been made in paragraph no.5 of the affidavit that the petitioners have been handed over possession on 13th June, 2005 in compliance of the orders of the High Court.
This was done on the orders passed by the then District Magistrate, Kanpur Nagar on 25th May, 2005.
It appears that the petitioner no.3 claiming herself to be the statutory tenant portion of the premises namely first and third floor of the said house came to know of the said proceedings and then filed a Writ Petition No. 38768 of 2005 that was dismissed on 12th May, 2005 with liberty to the petitioner no.3 to move an application in the present writ petition. The judgment is extracted hereinunder:-
"This writ petition has been filed for a direction to the respondents to give possession to the petitioner of the first floor, second floor and third floor of which the petitioner claims to be a tenant.
It has been stated in the petition that against the son of the landlady an order under Section 14(1) of the U.P. Gangster and Anti Social Activities (Prevention) Act was passed in which house no. 48/123 in which the petitioner is a tenant was attached and sealed after forcibly ousting the petitioner and other members of her family. In this regard the petitioner has moved various applications before the District Magistrate. In the meantime, the landladies had also filed a writ petition in this Court being Writ Petition No. 31220 of 2005 in which an interim order was passed on 25th April, 2005 directing the respondents to release house no. 48/123 in favour of the petitioners forthwith.
We have heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
Learned counsel for the petitioner submitted that once the house had been released under the order of this Court dated 25th April, 2005, the petitioner should be put back in possession.
We have perused the order dated 25th April, 2005 passed in Writ Petition No. 31220 of 2005 filed by the landladies. The Court after granting time for exchange of affidavits ordered that the respondents should release the house no. 48/123 in favour of the petitioners forthwith. We are, therefore, of the opinion that when such a direction had been issued by this Court in the writ petition filed by the landladies, the proper course for the petitioner, who claims herself to be a tenant in the aforesaid property, is to file an application in the pending Writ Petition No. 31220 of 2005 for appropriate relief. No relief can be granted in this petition, as that would be contrary to the relief granted to the petitioners in that writ petition.
For the aforesaid reasons, we are not inclined to entertain this petition. It is, accordingly, dismissed with liberty to the petitioner to move an appropriate application in Writ Petition No. 31220 of 2005."
Accordingly, two applications were prepared on behalf of the petitioner no.3 being modification application 114282 and impleadment application no. 114283 that was filed on 17th May, 2005. The impleadment application after almost two years was allowed on 9th May, 2007 wherein prayer was made to implead the applicant as petitioner no.3. The order was passed on 9th May, 2007 which is extracted hereinunder:-
"We have heard learned counsel for the applicant.
Impleadment application is allowed.
Office shall implead necessary impleadment in the array of petitioners within 10 days.
List thereafter."
We have not been able to gather either under the High Court Rules, 1952 or for that matter under any law for the time being in force as to how the petitioner could have claimed impleadment as a petitioner, but the fact remains that under the aforesaid order of the Court, the petitioner no.3 came to be impleaded as such and the petition remained pending. The petitioner could have been otherwise heard in terms of Chapter 22 Rule 5-A of the Allahabad High Court Rules, 1952.
In this background, it appears that the original landladies namely petitioner nos. 1 and 2 proceeded to get the premises vacated seeking its release in Rent Case no. 4 of 2013 before the Judges Small Causes Court, Kanpur Nagar. This application for release was allowed vide order dated 19th May, 2014.
The petitioner no.2 in the meanwhile had died and after impleading her heirs, the petitioner no.3 who claims to be a tenant of the same premises filed Rent Appeal No. 78 of 2014 before the learned District Judge, Kanpur Nagar assailing the order dated 19th May, 2014. In this appeal, the petitioner no.3 moved an application under Section 10 C.P.C., praying that the property which is subject matter of the appeal is involved in Case Crime no. 254 of 2002 where action has taken under the Gangsters Act. The premises was under the tenancy of the said applicant and the landladies had filed Writ Petition No. 31220 of 2005, the present writ petition, where an interim order was passed on 24th April, 2015. The impleadment application of the petitioner no. 3 was allowed. In view of this the submission raised was that the landladies or the heirs had no locus to file the release application as the property stood attached under the Provisions of the 1986 Act. Consequently, all the proceedings for release deserve to be annulled in the background aforesaid.
The said application filed on behalf of petitioner no.3 was rejected on 18th November, 2017 by the learned Additional District Judge. Copy of the said order has been brought on record as annexure 4 to the supplementary affidavit filed by the petitioner.
Assailing the said order the petitioner no.3 filed Writ Petition No. 57703 of 2017 that was dismissed on 04.12.2017 by the following order:-
"Heard learned counsel for the petitioner.
Present writ petition has been filed seeking quashing of the impugned order dated 18.11.2017 passed by the Additional District Judge, Court No. 24, Kanpur Nagar in Rent Appeal No. 78 of 2014, rejecting Application (Paper No. 16Ga) filed under Section 10 C.P.C.
By the impugned order the application of the petitioner filed under Section 10 C.P.C. read with Section 34 (1) (2) of Act 13 of 1972 and Rule 22 (f) of the Rules framed thereunder has been rejected.
The application was filed on the ground that in Case Crime No. 254 of 2002 under Sections 465, 467, 476, 496 IPC proceedings under Section 3 (a) of U.P. Gangsters Act was undertaken wherein vide order dated 27.9.2004 the premises in question which is a house wherein the petitioner is the tenant was seized and thereafter considering the objection filed by the landlord vide order dated 7.12.2004 the property was attached. Ultimately the owner filed Writ Petition No. 31220 of 2005 wherein an interim order was passed in favour of the petitioner, landlord herein releasing the property/House No. 48/123, Generalganj Pachkucha, Kanpur in their favour vide order dated 24.4.2015. The writ petition is stated to be still pending.
In the aforesaid writ petition the petitioner herein has filed an impleadment application which has been allowed. In the meantime, the landlord filed an application under Section 21 (1) (a) of Act 13 of 1972 which was allowed against which an appeal was filed by the tenant. In the aforesaid Rent Appeal No. 78 of 2014 the present order has been passed.
Submission of learned counsel for the petitioner is that since the property has already been attached, the landlords have no locus to file the release application and therefore, the proceedings of the present rent appeal was liable to be stayed. In support of his submissions, learned counsel for the petitioner has placed reliance on a judgment of this Court rendered in the cases of (i) Smt. Ved Rani Diwan and another Vs. VIII Additional District Judge, Ghaziabad and others 1996 (2) ARC 14 and (ii) Smt. Sugra Begum Vs. Sri Ram 1983 (2) ARC 143.
I have heard the submissions and have perused the record.
Admittedly no such objection was raised before the trial court and the release application was decided against the tenant. The application has been rejected on the ground that the nature of the proceedings in both the cases is different and therefore the pendency thereof would not come in way of the Court in proceeding with the appeal. It is not in dispute that the other proceedings are arising out of the proceedings under the Gangsters Act and are in the nature of criminal proceedings wherein a writ petition is pending. The status of the petitioner herein as tenant is not in dispute.
In such view of the matter, I do not find any legal infirmity in the order impugned herein. In the facts and circumstances of the case, the rulings so cited by the learned counsel for the petitioner are distinguishable.
This writ petition is, accordingly, dismissed."
Consequently, the rent appeal filed by the petitioner no.3 is still pending consideration before the Appellate Forum.
Learned counsel for the petitioner no.3 Sri Ankush Tandon submits that in this background, the petitioner needs protection, inasmuch as, if the present writ petition is either dismissed or allowed, the same would have a bearing on the possession of the petitioner no.3 and her rights as a statutory tenant. The modification application no. 114282 has been filed to clarify the interim order dated 25.04.2005 to release the premises to the petitioner no.3. No orders appear to have been passed on this application.
We have heard the learned Standing Counsel for the State and we are unable to concede to the submissions raised by Sri Tandon , inasmuch as, the proceedings between the landlord and the tenant arising out of the Rent Control Act, is a separate proceeding all together. The landlord can succeed in seeking release as against the tenant provided the requirements of law are fulfilled as contained in Section 21(1)(a) of U.P. Rent Control and Eviction Act, 1973. Thus the status of actual occupation and right to retain possession viz a viz the landladies and the petitioner no.3 would be dependent upon the outcome of the said proceedings.
So far as the proceedings under the Gangster Act are concerned, the petitioner no.3 is not a Gangster nor is she being prosecuted for any of the provisions under the 1986 Act. Thus, there is no occasion for the petitioner to challenge the attachment, inasmuch as, concededly she is not the owner of the premises. In the circumstances, when the petitioner no.1 is not represented before this Court and her counsel has not turned up, and the petitioner no.2 has died without there being any substitution, there is no occasion for us to interfere at the instance of the petitioner no.3 for the reasons recorded hereinafter.
A claim in respect of property attached under Section 14 is subject to release under the provisions of Section 15 of the Act. The said provision is available to a claimant. As is evident hereinabove, the property is not within the ownership of the petitioner no.3.
It would be apt to refer to the decision in the case of Jangali Pasi Vs. State of U.P. and another 2015 (6) ADJ 551 that has been followed by another Division Bench in Government Appeal No. 6042 of 2010 (State of U.P. Vs. Naseem Khan and others) decided on 06.12.2016. The question in both these cases was about a dispute raised in relation to the rights of a claimant seeking release of a property attached under the Provisions of the 1986 Act. It was held therein that the Act is a complete code and, therefore, after an order is passed a right of appeal is also available against the orders of confiscation under Section 17 by preferring an appeal under Section 18 thereof. The adjudicatory forum was therefore explained in the aforesaid two cases.
We in the present case are faced with a situation where a tenant is claiming her rights of occupation. It goes without saying that in spite of the observations made by the decisions referred to hereinabove particularly in the case of Jangali Pasi (supra), no rules appear to have been framed by the State under the 1986 Act for prescribing any procedure to be followed. In the event of attachment, Section 14 (2) the Act itself provides that the provisions of the Code i.e. the Code of Criminal Procedure 1973 as defined in Section 2(a) of the 1986 Act shall mutatis mutandis apply to every attachment. The question as to the procedure therefore, in such matters can be clearly traced to Section 84 of the Criminal Procedure Code extracted hereinunder:-
"CrPC 84: Section 84 of the Criminal Procedure Code Claims and objections to attachment
1. If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:
Provided that any claim preferred or objection made within the period allowed by this Sub-Section may, in the event of the death of the claimant or objector, be continued by his legal representative.
2. Claims or objections under Sub-Section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under Sub-Section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made.
3. Every such claim or objection shall be inquired into by the Court in which it is preferred or made:
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him.
4. Any person whose claim or objection has been disallowed in whole or in part by an order under Sub-Section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive."
However, the special provisions under the 1986 Act would prevail in view of Section 20 of the 1986 Act and in view of Section 22 thereof, no suit, prosecution or other legal proceeding shall lie against the State Government or Officer or Authority for anything done in good faith in pursuance of the Act and the Rules framed thereunder. Further sub-Section 3 of Section 14 of the 1986 Act makes it clear that the powers available to the administrator appointed by the District Magistrate to administer the attached property shall apply notwithstanding, the provisions of the Criminal Procedure Code, 1973.
The question of release would be subject to the provisions of Section 15 where the word used is that the claimant of the property may make a representation to the District Magistrate and if the District Magistrate is satisfied, he shall release the property from attachment. Where no representation is made and the property is not released by the District Magistrate then the obligation is on the District Magistrate to refer the matter with his report to the Court having jurisdiction to try the offence in the case in which the property has been attached. Sub-Section 2 of Section 16 is important which is extracted hereinunder:-
Sub-section 2 of section 16 "(2) Where the District Magistrate has refused to attach any property under sub-section (1) of Section 14 or has ordered for release of any property under sub-section (2) of Section 15, the State Government or any person aggrieved by such refusal or release may make an application to the Court referred to in sub-section (1) for inquiry as to whether the property was acquired by or as a result of the commission of an offence triable under this Act. Such court may, if it considers necessary or expedient in the interest of justice so to do, order attachment of such property."
A perusal thereof would indicate that not only the State Government, any person aggrieved by refusal or release of attachment under the orders of the District Magistrate can make an application to the Court referred to in sub-Section 1 of Section 16 of the Act and such Court if it considers necessary or expedient in the interest of justice, so to do order an attachment of such property. The Court is bound to issue notices to the State Government or any other person whose interest appears to be involved as per the said provision and hold an inquiry under Section 17. The delivery is to any person entitled to the possession thereof. This enquiry however appears to be in relation to the title of the property.
The question herein is as to what are the rights of a tenant residing in the attached property as a statutory tenant under the provisions of the U.P. Rent Control Act (supra).
As noticed above there are no specific rules or direct provisions that may separately define the rights of tenant of an attached property. The 1986 Act does indicate the use of the words "claimant" (Section 15) "person aggrieved" (Section 16(2) and "delivery to any person entitled to the possession thereof" (Section 17). The same is in the context of a claim by a person entitled to possession thereof. Sections 15, 16 and 17 read together generically appear to refer to the claimant who may be adversely affected treating the property to have been acquired by the gangster. This, therefore, unquestionably postulates genuine ownership and title. The Act however seeks to attach the property and take over possession and further authorizes confiscation.
In our opinion the legislature may not have actually incorporated all situations arising out of a claim of possession other than that of ownership or title, but the legislature does appear to have envisioned such likely cases that may arise in future and therefore in the absence of rules on the subject under the 1986 Act which situation continues today, the legislature appropriately prescribed the mutatis mutandis application of the Cr.P.C. as mentioned above. Section 84 Cr.P.C. on the subject of release uses the words "interested persons". Combining the overall intent of the 1986 Act read with the Code, a tenant in the premises that is attached treating it to be that of a gangster, would have a right to approach the same court that has passed the order of attachment in the event the action taken under the act disturbs lawful occupation or possession or otherwise adversely affects the tenant.
In the present case, the petitioner no.3 had rightly moved the application before the District Magistrate on 3rd May, 2005. Apart from this, the petitioner no.3 being a statutory tenant claiming lawful possession, also in view of what has been discussed above has a right to approach the appropriate forum under the 1986 Act, in the event her rights are adversely affected, by virtue of any action taken under the 1986 Act and seek protection accordingly. The competent authority or the Court concerned will therefore be authorized to entertain such a claim as involved in the present case and pass appropriate orders accordingly confined only to the provisions of 1986 Act. The property in the instant case has been released by the District Magistrate under the interim orders of this Court dated 25th April, 2005. These are separate proceedings.
The relationship of the petitioner no.3 and her right to continue as tenant would be subject to the proceedings in appeal under the U.P. Rent Control and Eviction Act, 1973.
The application of the petitioner no.3 for modification, being Application No. 114282, appears to be based on an apprehension which stands clarified by the release order dated 25.05.2005 whereby the District Magistrate has on the application of the petitioner no.3 dated 03.05.2005 directed the Administrator/Tehsildar Sadar and the Station House Officer, P.S. Chawni to restore possession to the extent of occupation by the respective parties as on the date of the attachment and seizure order. Thus possession stands restored and consequently no modification is required at present. The aforesaid application stands disposed off accordingly.
No information is available with this Court about the status of the case under the Gangsters Act. The petitioner no.2 as informed by the petitioner no.3 has died. Whether the property has been subjected to any order of confiscation under the Gangsters Act or not and whether any orders have been passed relating to the property or not is not on record.
In the aforesaid circumstances, this writ petition is consigned to records without prejudice to the rights of the petitioner no.3 to contest her claim before the Appellate Forum under the U.P. Rent Control and Eviction Act, 1973, and also under the provisions of the 1986 Act as observed above in accordance with law.
The attachment or confiscation if any of the property under the Gangsters Act would in future be governed by any orders to be passed by the Competent Court in this regard and the orders of this Court shall not be an impediment in any forthcoming proceedings.
We further clarify that this petition stood virtually disposed off on the very first day when interim orders were passed on 25.04.2005 where after the petitioner got herself impleaded as petitioner no.3. We have therefore disposed off this petition that has come up after thirteen years in a peculiar background which does not warrant any future continuance at this stage.
Order Date :- 18.4.2018 M. ARIF Order on Modification Application No. 114282 Disposed off.
For orders, see order of date passed in Writ Petition No. 31220 of 2005.
Order Date :- 18.4.2018 M. ARIF