Uttarakhand High Court
Sanjay Kumar Singhal And Another vs Mohd Inam And Another on 26 October, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1074 of 2008 (M/S)
Sanjay Kumar Singhal and anr. .......Petitioners
Vs.
Mohd. Inam and anr. .......Respondents
Mr. V.K. Kohli, Senior Advocate assisted by Mr. Kanti Ram Sharma, counsel for the petitioners.
Mr. Shiv Pande, Advocate holding brief of Mr. A. Rab, counsel for the respondents.
Hon'ble Lok Pal Singh, J. (oral) Present writ petition under Article 227 of Constitution of India has been filed against the judgment and order dated 05.06.2008 whereby learned District Judge, Dehradun has allowed the revision and set aside the order of vacancy dated 04.06.2003 and subsequent order of allotment dated 31.05.2007.
2. Facts in brief are that the petitioners are the landlords of the property in dispute. One Rashid Ahmed was the tenant since 1965 in the premises in question. After living in the premises in question, Rashid Ahmed left the place and sub-let the property to his brother Shabir Ahmed. The petitioners/landlords moved an application before the Rent Control and Eviction Officer, Mussoorie with the prayer that Rashid Ahmed tenant has sub let the property to some other person who is not the family member of the tenant, therefore the vacancy be declared under section 16(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (hereinafter referred as U.P. Act 1972). On the application, so moved, Rent Control Inspector was appointed to inspect the premises in question. The Rent Control Inspector visited at the spot and submitted its report on 16.08.1999. In his report Rent Control 2 Inspection has mentioned that Rashid Ahmad was the tenant and at the time of inspection he was not present at the spot and was informed that he went to his village Saharanpur. He further stated that Rashid and Akbar son of Hasunuddin were the brothers. Shabbir his wife Shafikan, Nashima D/o Ayub, Shabnam D/o Inaam and Naseem were residing at the premises in question. He also found that there are separate kitchens in the premises and property is being used by the family members of tenants as well as by non- family members of the tenant and give all the details in his report.
3. Objections were invited by the Rent Control and Eviction Officer against the report dated 16.08.1999 and after hearing the parties has passed the order dated 04.06.2003 and held that the property in question is being used by the three persons who were not the family members of tenant Rashid Ahmed.
4. At this juncture it is relevant to define the definition of family which has been prescribed under section 3(g) of the U.P. Act, 1972. Same is reproduced below:-
(g) "Family", in relation to a landlord or tenant of a building, means, his or her-
(i) spouse
(ii) male lineal descendants;
(iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, 3 and includes, in relation to a landlord, any female having a legal right or residence in that building.
5. When the vacancy was declared by the Rent Control and Eviction Officer vide order dated 04.06.2003, same was challenged by the tenants (respondents hereunder) by way of filing writ petition no. 7 of 2003 (M/S) before this Court. This Court did not interfere in the order of the vacancy and dismissed the petition vide order dated 23.08.2006. While dismissing the writ petition the Court has also observed that petitioners (respondents herein) would be at liberty to challenge the order of vacancy alongwith final order. After decision of the above writ petition, the Rent Control and Eviction Officer, Mussoorie passed the order, releasing the accommodation in favour of the landlord
6. Feeling aggrieved by the order of vacancy dated 04.06.2003 as well as order of release dated 31.05.2007, respondents preferred Rent Control Revision No. 122 of 2007 before the District Judge, Dehradun on the ground that order of vacancy has been passed against the fact and law and the order of allotment/release is also illegal.
7. Revision under section 18 of the U.P. Act 1972 would lie within 15 days from the date of order of allotment. The learned District Judge had entertained the revision in the year 2007 without condoning the delay in filing the revision. It is relevant to mention here that against the order dated 04.06.2003, remedy of filing of writ petition was availed by the respondents and writ petition filed by them dismissed by this Court on 4 23.08.2006. Thereafter, the respondents had no occasion to challenge the order of vacancy dated 04.06.2003 by filing the revision. But the learned District Judge without considering this aspect of the matter and without considering the judgment of the Hon'ble Apex Court reported in 1999(9)SCC 61 Narayani Devi vs. Mahendra Kr. Tripathi and others wherein it is held that no revision under section 18 of the U.P. Act 1972 will lie, after the tenant contest the proceedings of allotment or release. Thus, learned District Judge has committed illegality in setting aside the order of vacancy dated 04.06.2003. As far as, order of release dated 31.5.2007 is concerned, the joint revision was not maintainable. In view of section 18 of the Act 1972, revision would lie on the grounds enumerated under section 18, but the District Judge without considering the grounds enumerated under section 18 entered to decided the controversy on factual aspects beyond the scope of section 18 of the U.P. Act 1972 and committed illegality in recording the perverse finding that respondent no. 2 is the tenant since long time.
8. Section 18 of the U.P. Act 1972 is reproduced below:-
18. Appeal against order of allotment or release:- (1) No appeal shall lie from any order under section 16 of 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;5
(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 sub section (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 sub section 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 of 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.
9. The learned District Judge has committed illegality in entertaining the joint revision against the final orders. The learned District Judge while passing the order impugned has recorded the finding of fact that Rashid and Akbar were two real brothers and the property in question was let out to both of them by the landlord but being the elder brother, receipts were issued in the name of Rashid Ahmed. Thus finding of fact recorded by the learned District Judge is without any evidence available on record. On the one hand, learned District Judge has recorded the finding that respondent no. 2 Shabbir is the family member of Rashid Ahmed who was living there since from beginning as a tenant and on the other hand the District Judge has recorded the finding that since 6 respondent no. 2 was living in premises in question since 1965 as a tenant therefore he is entitled to get benefit of section 14 of the U.P. Act 1972. Section 14 of the U.P. Act is reproduced below:-
Regularization or occupation of existing tenants:- [notwithstanding anything contained in this Act or any other law for the time being in force, any license (within the meaning of section 2A) or a tenant in occupation or a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction ) (Amendment) Act 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorized licensee or tenants of such building].
10. From the perusal of section 14 of the Act it would reveal that benefit of section 14 for regularization or occupation is available to the person who is residing in the property without any allotment order on or before 05.07.1976. Respondent no. 2 has not filed any documentary evidence showing that he was residing in the premises in question prior to 05.07.1976. Thus learned District Judge has committed illegality in recording the finding that respondent no. 2 is entitled to get benefit of section 14 of the Act.
11. The judgment and order dated 23.08.2006 passed by this Court dismissing the writ petition has not been challenged before the Hon'ble Apex Court by respondent nos. 1 and 2. Thus, respondents have elected not to assail the vacancy order as well as order dated 23.08.2006 passed by this Court, dismissing the writ petition. Therefore, after dismissal of the writ petition 7 there is no occasion for this Court to grant liberty to the respondents to avail remedy of revision challenging the order of vacancy dated 04.06.2003. Thus in view of this Court, as soon as the Court had dismissed the writ petition vide order dated 23.08.2006 it become functus officio and any observation made by this Court in its order has no help to the respondents. In my considered view, revision against the order dated 04.06.2003 was not maintainable and learned District Judge committed patent illegality in setting aside the order dated 04.06.2003.
12. Learned District Judge, though has placed reliance on the judgment of Hon'ble Apex Court in ARC 1995 (1) 220 Harish Tandon vs. A.D.M. Allahabad but the ratio of the judgment does not favour to the respondents rather ratio of the judgment favour to the petitioner, as in view of the order of vacancy the respondents were held illegal occupant of the property but the learned District Judge has illegally extended benefit of judgment (supra) in favour of the respondents.
13. The next point is regarding the allotment order dated 31.05.2007. Since the order declaring the vacancy dated 04.06.2003 has become final and was unassailed by the respondents before the Hon'ble Apex Court therefore they were not entitled to challenge the same before the revisional court. Since order of declaring the vacancy was affirmed and has attained finality, therefore while hearing the revision against order of allotment, it was not open for the District Judge to go behind and scrutinize illegality or propriety of the vacancy order 8 dated 04.06.2003and only order of allotment dated 31.05.2007 can be considered.
14. Learned revisional court has exceeded its powers in exercising the jurisdiction under section 18 of the U.P. Act 1972. The revision under section 18 of the U.P. Act 1972 against the order dated 04.06.2003 is not maintainable and entering into factual aspect of the matter, revisional court got no authority to interfere in the findings of the fact. Thus District Judge, Dehradun has committed illegality in recording the perverse findings of fact while setting aside the order of allotment.
15. In view of this Court, revisional court has exceeded in exercising its revisional jurisdiction under section 18 of the U.P. Act 1972 and in setting aside the order of declaring vacancy and allotment on unfounded ground, beyond the scope of section 18 of the Act 1972. The order dated 05.06.2008 passed by the revisional court is perverse and against the provision of law. The same is set aside. The writ petition is allowed. The Rent Control and Eviction Officer, Mussoorie is directed to take necessary steps in pursuance of the order of allotment/release dated 31.05.2007.
16. In the facts and circumstances of the case, parties shall bear their own cost.
(Lok Pal Singh, J.)
Parul 26.10.2017