Hem Chandra Joshi vs Vidya Bhushan Gupta And Others on 25 March, 2021

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Uttarakhand High Court

Hem Chandra Joshi vs Vidya Bhushan Gupta And Others on 25 March, 2021

The petitioner of the present Writ Petition claims himself to be the purchaser of the property, by virtue of a registered sale deed dated 5th February, 2000, which was claimed to have been executed in his favour by the predecessor/owner of the property, i.e. respondent No.9. It is on the strength of the said sale deed dated 05.02.2000, that the petitioner contends that he would be entitled to give a challenge to the impugned orders, i.e. 15th April, 2009, as was passed by the District Judge, Almora, in Civil Revision No. 4 of 2007, Vinita Gupta and others Vs. Harish Chandra Agarwal and others, which was preferred under Section 18 of the Act No. 13 of 1972, against the order dated 12.02.2001 passed by the competent Authority, under Section 16 (1) (b) of Act No. 13 of 1972.

2. The chequered history of the proceedings itself, in fact, shows that the landlord/respondent No.9, as he principally and initially was, had filed an application under Section 12 of the Act No. 13 of 1972, for the purposes of declaration of vacancy of the tenement, in question, which was claimed by landlord respondent No.9, to have fallen vacant, from the occupancy of the respondent Nos.1 to 8, who are said to be the tenants in occupation of the tenement, which was sought to be declared vacant by invoking the provisions contained under Section 12 of the Act of 1972.

3. On this application, as was submitted by respondent No.9 landlord, on 29.09.1999, a report was called for by the Rent Control and Eviction Officer, which was submitted by the said Authority on 27.11.1999, and consequent to the report thus submitted on 27.11.1999, a publication for declaration of vacancy was made on 22.12.1999, and ultimately, upon consideration of an objection, the vacancy was declared by an order dated 25th February, 2000, and the tenement was declared to be vacant.

4. It was after the declaration of the vacancy on 25.02.2000, that the application for allotment/release was submitted by the landlord, and was filed under Section 16 of the Act, for seeking the allotment and releases of the building thus declared vacant under Section 12 of the Act, i.e. the tenement, which was earlier occupied by respondent Nos. 1 to 8.

5. On these applications, the objection were invited and was submitted by the sitting tenants, i.e. respondent Nos. 1 to 8, which was an objection as submitted by them on 7th March, 2000, where the very fact of the declaration of the vacancy on 25th February, 2000, was made as a subject matter of challenge.

6. There had been a Recall Application too, which was filed by the tenants, seeking recall of an order dated 25th February, 2000, of declaration of the vacancy of the tenement, in question, to which, the reply was filed by the respondent No.9, the landlord, on 31st March, 2000. Consequently, by an order of 19th July, 2000, the recall of the tenants was dismissed, against which, the tenants had preferred a Writ Petition, being Writ Petition No. 30947 of 2000, before Hon'ble Allahabad High Court, in which, the order of rejection of the recall dated 19th July, 2000, was initially kept in abeyance by an interim order dated 29th July, 2000, as was passed by the Hon'ble Allahabad High Court.

7. It is an admitted case that ultimately as a consequence of declaration of the vacancy on 25.02.2000, and also as a consequence of the rejection of the recall application, which was preferred by the sitting tenants against the order of declaration of the vacancy, the application was submitted under Section 16 (1) (a) of the Act, for the release of the accommodation, by the landlord, was allowed and, consequently, the tenement was released in favour of the landlord by an order 12.02.2001, and as a consequence thereto, the possession of the tenement, in question, was handed over to the landlord by the Rent Control Eviction Officer on 15th July, 2001. Hence, the release made in favour of respondent No.9, under Section 16 (1) (a) of Act No. 13 of 1972, had attained finality.

8. Later, the Writ Petition No. 30947 of 2000, against rejection of their recall, which was preferred by the tenants before Allahabad High Court, was also dismissed for want of prosecution on 24th May, 2001, and the said order of dismissal of the Writ Petition; will have a binding effect, so far it relates to the two orders of declaration of vacancy dated 25.02.2000, and the release of the tenement to the landlord on 12.02.2001, as the said order of 24th May, 2001, dismissing the Writ Petition, which was preferred by the tenants, had attained the finality, qua the respondent Nos.1 to 8 to the present Writ Petition, as they have not proceeded further against the two orders of declaration of vacancy and release of the tenement to the landlord respondent No.9.

9. The petitioner's case is that during the pendency of the Writ Petition No. 30947 of 2000, as was preferred by the tenant, he had purchased the property by virtue of the registered sale deed on 05.02.2000 (i.e. prior to release itself on 12.02.2001), from the erstwhile landlord, i.e. respondent No.9, and his contention is that, as a consequence of the said purchase made in his favour, his rights have accrued over the property, in question, and hence, the same are now 4 required to be protected by him, but, the fact which remains apparent from record is that the so called alleged purchase of 5th February, 2000, was subsequently preceded by the release of the tenement to the landlord only on 12.02.2001, and its handing over of its possession followed only on 15th July, 2001, to the landlord, which was much subsequent to the execution of the sale deed of 5th February, 2000. But, however even on the basis of alleged purchase of 05.02.2000, petitioner never got himself impleaded in the release application of respondent No.9. Because apparently his seller, the predecessor owner, i.e. respondent No.9, was the applicant for release under Section 16 (1) (b) of Act No. 13 of 1972, hence, knowledge of the proceedings being with petitioner would be presumed to be with him, as the release in favour of respondent No.9, was made much thereafter only on 12.02.2001.

10. As against the order of 12.02.2001, releasing the premises to the landlord/respondent No.9, a Revision was preferred, being Revision No. 8 of 2001, by the tenants, and the same was dismissed on 7th August, 2001. Its against the order dated 12.02.2001, a Writ Petition, being Writ Petition No. 751 of 2002, was preferred by the tenants before this Court, being Writ Petition No. 751 of 2002, which was considered by the Coordinate Bench of this Court, on 22nd November, 2004, but however, the order of 12.02.2001, releasing the premises in favour of the landlord, now respondent No.9 herein, was declined to be quashed by the learned Single Judge of this Court, the matter was remitted to the extent of the order of 7th August, 2001, is concerned i.e. rejecting the recall application of the tenants seeking recall of declaration of vacancy and release to the landlord. The operative portion of the order reads as under :-

"In the circumstances, the writ petition is allowed to the extent that the order dated 07.08.2001 passed by the learned District Judge, Almora is quashed. The delay in moving the revision against the order dated 12.02.2001 passed by the 5 Prescribed Authority, Ranikhet, is condoned. This Court, declines to quash the order dated 12.02.2001 on the ground that the merits and legalities of the said order shall be seen by the District Judge in the revision filed by the tenant. Accordingly, the writ petition is partly allowed. No order as to costs. "

11. The contention of the learned counsel for the petitioner is on the pretext, that as if the judgment of 22nd November, 2001, as was passed by the Coordinate Bench, was an order of remand, and the entire process of declaration of vacancy and the release as decided on 25th February, 2000, and 12.02.2001, respectively was to be re- decided by the Court, is absolutely contrary to the observations, which had been made by the learned Single Judge, because once the learned Single Judge, in its judgment of 22nd November, 2004, has declined to quash the order of release in favour of the landlord respondent No.9, herein, i.e. by an order dated 12.02.2001, it tantamounts that the declaration of the vacancy of 25th February, 2000, has been affirmed by the Court and the only remittance or remand, which was made, was qua the rejection of the recall application, which was preferred by the tenants, before the Rent Control Eviction Officer, for the recall of the orders of vacancy and release. But these orders itself were not disturbed, by the High Court, at all.

12. It is not only limited to this extent, the respondent No. 1, herein, who later on met with the sad demise and was substituted by his heirs, had also preferred a Writ Petition No. 1676 of 2001, in which, the petitioner Nos.2 to 8 were parties to the proceedings.

13. The Coordinate Bench of this Court, vide its judgment dated 12th June, 2006, as rendered in Writ Petition No. 1676 of 2001, where the respondents of the present Writ Petition, had put a challenge to the order of 25th May, 2000, and that of 19th June, 2000, passed by respondent No.1, there in the Writ Petition. i.e. SDM/ Prescribed Authority, of declaring the vacancy and also the review of 6 the order of declaration of the vacancy, which was sought was dismissed by the Coordinate Bench of this Court vide its judgment dated 12th June, 2006.

14. The Coordinate Bench of this Court, accordingly, made the following observations, in its judgment dated 12.06.2006, while dismissing the Writ Petition of the tenants/respondents Nos. 2 to 8 :-

"In the mean time against the release order the petitioner has filed a revision before the District Judge, Almora. The petitioner has also challenged the order of vacancy. The District Judge has rejected the revision vide order dated 07-08- 2001 on the ground of limitation. Against the order of the District Judge, the petitioner filed a Writ Petition No. 751 of 2002 (M/S) before this court and this Court on 22.11.2004 passed the following order :

"In the circumstances, the writ petition is allowed to the extent that the order dated 07.08.2001 passed by the learned District Judge, Almora is quashed. The delay in moving the revision against the order dated 12.02.2001 passed by the Prescribed Authority, Ranikhet, is condoned. This Court, declines to quash the order dated 12.02.2001 on the ground that the merits and legalities of the said order shall be seen by the District Judge in the revision filed by the tenant. Accordingly, the writ petition is partly allowed. No order as to costs. "

Thus as the merits and legalities of the impugned order has been directed to be seen by the District Judge, in the revision, this Writ Petition has become infructuous and deserves to be dismissed.

Accordingly, writ petition is dismissed. No order as to costs."

15. The present Writ Petition, has been preferred by the petitioner, who claims himself to be the purchaser by sale deed 05.02.2000, from the respondent No.9, i.e. the previous owner of the property in whose favour the property was released later on, on 12.02.2001, wherein, in the present petitioner had yet again given a challenge to the order of 15th April, 2009, passed by the District Judge, Almora, in Revision No. 4 of 2007, Vinita Gupta and others Vs. Harish Chandra Agarwal and others, which was filed on 25.05.2007. If the memo of Revision itself is taken into consideration, 7 which was filed by the successors of the tenants, they are shown to be represented by Mr. Rajeev Sharma, as their attorney, and it was for the first time in this Revision, being Revision No. 4 of 2007, that the respondent No. 9, i.e. predecessor/ owners and the present writ petitioner, were impleaded as a party since being the purchaser from respondent No.9; by the sale deed of 5th February, 2000. Introduction of the petitioner as a party in a Revision, which was preferred by the tenant through its attorney holder, after its release of the tenement to the landlord on 12th February, 2001, the judgment which otherwise also stood affirmed by this Court in Writ Petition No. 1676 of 2001, the petitioner could not gather any advantage by the subsequent Revision filed by the tenants as against the petitioner and the predecessor owner/ respondent No.9, which was allowed by the Court of District Judge, Almora, by the impugned order of 15th April, 2009, whereby the release of the tenement which was made in favour of the respondent No.9, was set aside. Meaning thereby the possession of the tenement would still continue to be with respondent Nos. 1 to 8.

16. However, if the revisional order is taken into consideration itself, it was for the first time that after the sale being made by respondent No.9 in favour of the petitioner on 05.02.2000, and the release made in favour of the predecessor owner on 12.02.2001, was quashed and that too when the so called release made on 12.02.2001, under Section 16 (1) (b) of Act No. 13 of 1972, stood as an act of nullity on account of a prior purchase made by the petitioner by the sale deed of 5th February, 2000. Hence, the order of remand, which was passed by the Court for reconsideration of the release which was applied by respondent No.9 on 07.03.2000, made in favour of the landlord/respondent No.9 on 12/12/2001, was nothing but a futile exercise in the light of the fact that the aforesaid orders of declaration of vacancy vide order 25.02.2000, as well as the release has already attained finality with the dismissal of the Writ Petition No. 30947 of 2000, which was dismissed on default by the High Court on 8 24th May, 2001, and even if it is presumed that if at all any prejudice is caused by the Revisional Court's order, being Revision No. 4 of 2007, it would not be a prejudice qua the petitioner, who is the purchaser from the landlord, respondent No.9, which was made on 05.02.2000, particularly when High Court of Allahabad, during the pendency of Writ Petition No. 30947 of 2007, Vidya Bhushan Gupta and others Vs. S.D.M./Prescribed Authority and others; on 21.07.2000 had passed an order to the following effect :-

"In the meanwhile, the proceeding for release of house shall go on and order shall also be passed but same shall not be given effect till the next date of listing"

Even prior to the release being made in his favour on 12.02.2001, because if at all, any right is affected, on whatsoever fact which has been brought on record, it would be the rights of respondent No.9/ landlord only and not the petitioner, who had been clandestinely impleaded as a party to the Revision in collusion with the tenant, who had filed the Revision through its attorney Rajeev Sharma.

17. Hence, any cause as such as against the impugned order dated 15.04.2009, which is under challenge would not, at all, lie in favour of the petitioner.

18. On account of the aforesaid facts and reasons, any order which is passed under Section 12 of the Act, for declaration of vacancy or its ultimate release under Section 16 (1) (b) would be having an inter se binding effect between the respondents to the Writ Petition only, but as far as the present petitioner is concerned, he cannot have any case as against the proceeding under Section 12 or under Section 16 of the Act or for that matter even the Revision under Section 18 of the Act, because he was not a party to the proceedings till the declaration of vacancy and its ultimate handing over of possession to the landlord on 15/07/2001 and his impleadment in the 9 Revision, was nothing but a malicious exercise to somehow prejudice the proceedings of the declaration of vacancy and the release made in favour of the respondent No.9, to the proceedings.

19. Consequently, I do not find any merit in the Writ Petition. The Writ Petition is accordingly dismissed.

(Sharad Kumar Sharma, J.) 25.03.2021 Shiv

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Uttarakhand High Court