HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 7
Case :- WRIT- A No. - 13112 of 2011
Petitioner :- Smt. Radha
Respondent :- Anil Kumar And Another
Petitioner Counsel :- Rahul Sahai
Respondent Counsel :- Rajesh Gupta
Hon'ble Rakesh Tiwari, J.
Heard counsel for the parties and perused the record.
The petitioner claims that she is residing in premises in dispute situated on the first floor of house no. 232 Patel Ganj, Meerut which comprises of two rooms, Sehan, Bathroom and a Verandah along with a toilet on the second floor. The aforesaid accommodation was under the tenancy of Smt. Beena, the real sister of the petitioner. The case set up by the petitioner is that she was residing with her real sister Smt. Beena ever since 1979 who was tenant of the aforesaid accommodation. The tenant Smt. Beena left the premises in dispute and went to Rajasthan. Thereafter, the Rent Control and Eviction Officer/District Supply Officer, Meerut vide his order dated 25.7.2002 declared the premises to be vacant and allotted the same in favour of the petitioner vide order dated 8.8.2002 in case no. 26 of 2002 on monthly rent of Rs.150/-.
The landlady Smt. Sunehri preferred Revision No. 66 of 2003 before the District Judge, Meerut challenging the validity and correctness of the order dated 8.8.2002. The revision was then transferred from the Court of District Judge, Meerut to Court no.1 of Additional District Judge, Meerut, and was dismissed vide order dated 18.5.2004. Aggrieved by this order dated 18.5.2004, Smt. Sunehari filed Civil Misc. Writ Petition No. 21763 of 2004 which was allowed exparte vide order dated 15.5.2006 by the High Court. The petitioner then filed a recall application and upon hearing the High Court confirmed its earlier order dated 15.5.2006 in the Writ Petition aforesaid.
In the aforesaid backdrop Smt. Sunehri Devi, the landlady filed a release application under Section 21(1)(a) of U.P. Act No. 13 of 1972, which was registered as P.A. Case No. 42 of 2006. The release application was allowed by the Prescribed Authority/Judge Small Causes Court, Meerut vide judgment and order dated 13.5.2008. The petitioner and her sister Smt. Beena were directed to handover the vacant possession of the demised premises to the landlady. This order of the Prescribed Authority was challenged by the petitioner before the District Judge, Meerut in Misc. Appeal No. 109 of 2008, which was allowed vide order dated 8.8.2008 on technical grounds. The landlady preferred Civil Misc. Writ Petition No. 44777 of 2008, Smt. Sunehri Devi versus Smt. Beena Devi and others before the High Court against the order dated 8.8.2008 aforesaid. She died on 1.2.2009 during the pendency of the writ petition and her legal heirs and representatives were substituted in her place.
The petitioner in the mean time, had filed an allotment application on 22.9.2007 and landlady Smt. Sunehri Devi moved release application under Section 16(1) (b) of U.P. Act No. 13 of 1972 on 23.10.2007. The court below vide order dated 19.5.2010 declared the vacancy and also allowed the release application filed by the landlady Smt. Sunehri Devi vide order dated 15.12.2010. The petitioner challenged the aforesaid two orders before the District Magistrate, Meerut in Civil Misc. Revision No. 37 of 2011. By the impugned order dated 25.2.2011 the aforesaid revision no. 37 of 2011 was dismissed by the Incharge District Magistrate, Meerut.
The petitioner has prayed for quashing of the order dated 25.2.2011 passed by the Incharge District Judge, Meerut in Civil Misc. Revision No. 37 of 2011, Smt. Radha versus Anil and another, and the orders dated 15.12.2010 and 19.5.2010 passed by the Additional District Magistrate,City/District Supply Officer, Meerut in Case No. 37/24 of 2007, Smt. Radha versus Smt. Sunehri. The petitioner also prayed for issuance of a writ of mandamus commanding the subordinate Rent Control Authorities to re-decide the matter afresh after affording an opportunity of hearing to the petitioner.
The orders dated 19.5.2010 and 15.12.2010 are challenged on the ground of being illegal and without jurisdiction as vide order dated 9.11.2010 the District Magistrate had already transferred to the District Supply Officer, Meerut as such are non-est in the eyes of law. The order dated 25.2.1011 is challenged on the ground of arbitrariness and on the ground that need of Smt.Sunehri stood automatically extinguished . Moreover for the fact that order dated 13.5.2008 had been set aside vide order dated 8.8.2008 and as such the authorities below were labouring under a misconception.
It is argued that the High Court had directed that petitioner was liable to be heard and continue to remain in possession of the premises in dispute. It is stated that the petitioner was a formal allottee and even if it is presumed that he is a prospective allottee, still the authorities below were required to afford opportunity of hearing to the petitioner and at least to have passed a reasoned order upon material on record but the authorities below have committed a manifest error in law in not considering the above facts while passing the exparte order against the petitioner.
Learned counsel for the petitioner has supported his arguments by the judgment rendered in (1998 (U.P.) RCC-35, Ashok Trivedi versus District Judge, Lucknow wherein the court relying upon the decisions rendered in (I) 1980 ARC 186, M/s Bombay T.V. Centre versus The Addl. District and Sessions Judge, Dehradun and others, (2) 1982 (Vol.2) ARC-53, Bimal Kumar Mahrishi vs. The District Magistrate, Bijnore and others, (3) 1982 ARC-450, M/s Vitticks Pharma vs. Smt. Jai Devi Shukla and considering Sections 18 and 16 of U.P. Act No. 13 of 1972 has held that revision by prospective allottee is maintainable as the prospective allottee is a person aggrieved by the order.
He has also relied upon the judgment rendered in Brij Bhushan Lal Srivastava versus IIIrd Additional District Judge, Varanasi and others, 1995(1), Allahabad Rent Cases-158 wherein the High Court remanded the case for deciding afresh keeping in view the material which had been placed by the prospective allottee too on the ground that the Revisional Court has not considered the material on the basis of which release was sought.
On the other hand, Sri Rajesh Gupta, learned counsel for the respondents caveator has submitted that it is settled law that the perspective allottee has no right in the building if the same has been released in favour of the landlord. He states that once the sister of the petitioner vacated the house and went to Rajasthan, the petitioner not being a member of her family had no right to continue in occupation of the premises in dispute. It is also submitted that there is neither any procedural irregularity in passing of the release order in favour of the landlady by order dated 15.12.2010 nor the order is illegal and arbitrary as alleged by the petitioner.
In support of aforesaid submission, he has relied upon the judgment rendered in Vijay Kumar Sonkar versus Incharge District Judge and others, Allahabad Rent Cases, 1995(2) page-587. According to the learned counsel for the respondents, while Court dealing with right of, to be heard in release proceedings under the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction), Act, 1972 considered the Sections 16(1)(a) and 16(1)(b) of the Act. He also submits that after considering the distinction between the two orders to be passed, i.e. one under Section 16(1)(a) and the other under Section 16(1)(b) of the Act the Supreme Court considered the release application filed under Section 16(1)(b) of the Act and has held that prospective allottee (tenant) has no right to contest or to be heard in the release proceeding as it is a matter between the landlord and the District Magistrate. The prospective allottee does not figure in the release proceedings.
Paragraph 2 of the judgment relied upon by the learned counsel for the respondents reads thus:-
"2. The distinction between the two orders envisaged in sub-section (1) is well marked. In the case of an allotment order the result is brought about a dialogue between the prospective tenant and the District Magistrate, thereafter, under whose orders the landlord is required to let any building to be prospective tenant. On the other hand, in the case of a release order the dialogue takes place between the District Magistrate and the landlord and the prospective tenant does not figure in it at all. The allotment order and the release order, as the case may be, being mutually exclusive, have separate areas of operation permitting no encroachment of one over the other. The mere fact that the focal point is the District Magistrate from whom flow the respective orders is of no consequence. It is on this understanding of the law that the High Court relying on its Full Bench decision in the case of Talib Husain v. Ist Addl. District Judge,1986(1) ARC 1 (SC); 1986 CFBRC 369 ( Alld) (FB): AIR 1986 Alld 196 (FB): All.L.J. 845 (FB), rejected the prayer of the prospective tenant that he had a right to be heard in a release application of the landlord based as it was on the provisions of sub-section (2) of Section 16 on ground of bona fide requirement. On the allowing of the release application the premises in question ceased to be allotable and since the District Magistrate, thereafter would have no jurisdiction to make an allotment thereof and the prospective tenant consequently has no right to resist the landlord in release proceedings. The view of the High Court seems to us to be correct in the circumstances of the case as also in law because as of today no allotment order subsists in favour of the appellant and yet he continues to be in possession. The appeal is, therefore, dismissed. The appellant is directed to vacate the premises within one month. It is made clear that he is not debarred from seeking another allotment order of any other premises if he has any such right in accordance with law. The appellant shall pay costs to the respondents throughout which we quantify at Rs.5,000."
He has then relied upon the judgment of this Court on the question of vacancy rendered in Shitla Prasad versus Ashwani Kumar Shah and others, connected with Pramod Kumar Verma versus Addl. District Judge and others, ( 2007 (1) ARC 467 and has argued that Smt. Beena was the original tenant who had left the premises in suit and shifted to Rajasthan, hence the court below has rightly deemed the portion to be vacant for which the the petitioner was an unauthorized occupant and had subsequently moved an application for allotment which was ultimately rejected.
Relying upon the judgment rendered in ( 2010 (1) ARC-358, Rajesh Kumar Tiwari versus State of U.P. and others, learned counsel for the respondents has urged that prospective allottee has no right to contest the release application filed by the landlord. In paragraph 9 of the judgment the High Court relying upon the judgments rendered in 1986 Allahabad, 196 ( Full Bench); 1986 (1) ARC 1, Talif Husain v. Ist Addl. District Judge has held that the prospective allottee has no right to be heard in a release application of the landlord. He further submits that the Court considered the judgments rendered in 1995(2) ARC-1 (SC) Vijai Kumar Sonkar versus Incharge District Judge and others and Ram Narain Sharma versus Shakuntala Gaur, 2002(2) ARC-1 in which it has been held by the Apex Court that there is no doubt to this effect that the prospective allottee shall not have any right to oppose the application for release moved by the landlord.
Learned counsel for the respondents has also placed reliance upon the judgment of the Full Bench rendered in Talib Hasan and another versus Ist Additional District Judge, Nainital and others, 1986(1), ARC (Vol.1) page-1 wherein the court was of the view that right of prospective allottee to be heard in a release application is not absolute and it arises only after rejection of landlord's application for release of the accommodation that is to say that the prospective allottee comes into picture only after rejection of landlord's application for release.
Lastly reliance has been placed by the learned counsel for the respondents upon the judgment rendered in Smt. Savitri Devi Rohtagi versus Vth Additional District & Sessions Judge, Kanpur Nagar and others, ( 2006 (2) JCLR-311 ( All) wherein the High Court has held that allottee is not entitled to get possession directly from outgoing tenant who must first deliver possession to the landlord and thereafter landlord shall deliver possession to the allottee. It has further held that if possession directly taken by allottee from outgoing tenant then this by itself is suffficient to vitiate allotment proceedings. Paragraph 4 of the judgment relied upon by the learned counsel for the respondents reads thus:-
"4.Allottee is not entitled to get possession directly from the out going tenant. Out going tenant must first deliver possession to the landlord thereafter landlord shall deliver possession to the allottee failing which R.C & E.O can direct delivery of possession from landlord to allottee. If possession has directly been taken by the allottee from out going tenant then this by itself is sufficient to vitiate the allotment proceedings."
After hearing learned counsel for the parties and on perusal of the record it appears that admittedly the case of the petitioner was that she was living with her real sister Smt. Beena, who vacated the premises in dispute and before shifting to Rajasthan handed over its possession to the petitioner who then moved an application for allotment in her favour. It may be noted that the Rent Control and Eviction Officer/ District Supply Officer, Meerut vide his order dated 25.7.2002 has held the premises in dispute to be vacant and rightly so being in consonance with the judgment rendered in Smt. Savitri Devi Rahtagi (supra). Smt. Beena Devi while vacating the house in dispute was under legal obligation to have handed over its vacant possession to the landlord who in turn is required to hand over the possession to the allottee. In the circumstances, revision was preferred by the landlady and ultimately in Civil Misc. Writ Petition no. 21763 of 2004 the court remanded the matter to the authority for deciding the case afresh. At that juncture, the release application under Section 21(1((a) of the Act was moved by Smt. Sunehri Devi, the owner of the house in dispute which was registered as P.A. Case No. 42 of 2006. The said release application was allowed by the Prescribed Authority which was challenged by the petitioner in appeal. The appeal of the petitioner was allowed on grounds that application under Section 21(1)(a) was not maintainable which compelled the landlady to file an application for release under Section 16(1)(b) of U.P.Act No. 13 of 1972 on 23.10.2007. Thus, these proceedings arise out of the release application filed by the landlady under Section 16(1)(b) of U.P. Act No. 13 of 1972 which has been allowed by the Rent Control and Eviction Officer/District Supply Officer, Meerut and is being challenged by the petitioner on the ground that it has been allowed behind the back of the petitioner without giving him a right of to be heard, hence the same is illegal and without jurisdiction.
Learned counsel for the petitioner has vehemently argued that there was procedural irregularity in allowing the release application by the court/delegated authority by the impugned order after transfer of the case. The question that arises for consideration is whether the prospective allottee has a locus standi or right to contest the release application filed by the landlord though there may be some procedural irregularity or not ?. It is well settled law that prospective allottee has absolute no right to contest the release application and it is a matter between the landlord and the District Magistrate. In the admitted set of facts the petitioner claims herself to be real sister of original tenant Smt. Beena who could not have adorned the status of the landlord on her sister until and unless it has been allotted to her by the authority concerned.
The petitioner claims herself to be a licensee of Smt. Beena and thereafter that of a tenant having been allotted the accommodation in dispute when the application of the landlady under Section 21(1)(a) of U.P. Act No. 13 of 1972, which was registered as P.A. Case No. 42 of 2006, for release of the accommodation in dispute was rejected on the ground of maintainability, though the proceedings under Section 21(1)(a) were challenged in Revision No. 66 of 2003 and thereafter in Writ Petition No. 21763 of 2004. The writ petition was allowed exparte by the High Court vide order dated 15.5.2006 and the recall application for setting aside the exparte order by the High Court was also rejected. The aforesaid P.A. Case No. 42 of 2006 was allowed by the Prescribed Authority vide judgment and order dated 13.5.2008 directing the petitioner and her sister to handover vacant possession of the premises in dispute which was challenged in Misc. Appeal No. 109 of 2008 which was allowed by the Additional District Judge vide order dated 8.8.2008. This order was challenged by landlady Smt. Sunehri Devi in Civil Misc. Writ Petition No. 44777 of 2008, Smt. Sunehri Devi versus Smt. Beena Devi and others, who expired during the pendency of the writ petition and the petition stood abate according to the own saying of the petitioner. Therefore, the petitioner cannot get any advantage of the allotment order as according to her own saying the application under under Section 21(1)(a) of U.P. Act No. 13 of 1972 was not maintainable. This has compelled the landlady to file an application under Section 16(1)(b) of U.P. Act No. 13 of 1972 which has been decided in favour of the landlady ( since deceased) and her legal heirs and representatives. From the order-sheet appended along with the writ petition as Annexure-9 it appears that landlady Smt. Sunehri Devi died on 1.2.2009 and her legal heirs and representatives were brought on record. From the order-sheet dated 11.11.2009 it appears that the legal heirs and representatives of Smt. Sunehri Devi were brought on record and the case was thereafter directed to be listed for final hearing which is as under:-
^^[email protected]@09%& Jh vfuy dqekj vkfn us fnukad [email protected]@09 dks izkFkZuk i= nsdj voxr djk;k gS fd izkfFkZuh Jherh lqugjh nsoh dk nsgkUr fnukad [email protected]@09 dks gks x;k FkkA vr% okn i= esa rn~uqlkj okfjlku la'kksf/kr djk;k tk;sA izkFkhZ izns'ku us Hkh izkFkZuk i= fnukad [email protected]@09 us okfjlku la'kksf/kr fd;s tkus dh vis{kk dh gSA vr% izkFkZuh ds okfjlku Jh vfuy dqekj vkfn dk izkFkZuk i= fnukad [email protected]@09 Lohdkj fd;k tkrk gSA rn~uqlkj fnukad [email protected]@09 dks la'kks/ku fd;s tkus ,oa fnukad [email protected]@09 dks i=koyh okLrs lquok;h is'k gksA g0 viBuh;
[email protected]@09** By order dated 19.5.2010, the case was directed to be listed for necessary directions/orders on release application which reads thus:-
^^[email protected]@10 iz=koyh izLrqrA vkt ih0vks0 egksn; iz'kklfud dk;Z esa O;Lr gSaA vr% vkns'k gqvk fd i=koyh fnukad [email protected]@10 dks okLrs vkns'k fueqfDZr is'k gksos g0 viBuh;A** It therefore, appears from the order sheet that the case was listed for final orders/delivery of judgment and the same was delivered on 15.12.2010. On the same date,the order of the District Magistrate, Meerut dated 9.11.2010 thus was received. Therefore, another order on the same date was also passed transferring the file to the office of Addl. District Magistrate (City)/Delegated Authority, Meerut. The order dated 15.12.2010 read thus:-
^[email protected]@10%& [email protected] vkns'k i=koyh ij layXu gSA i=koyh vfxze dk;Zokgh gsrq fnukad [email protected]@2011 dks is'k gksA g0 viBuh;
ftykf/kdkjh egksn;] esjB ds vkns'k fnukad [email protected]@2010 ds vuqikyu esa ;g i=koyh okLrs fuLrkj.k ftyk iwfrZ vf/kdkjh esjB ds U;k;ky; esa LFkkukUrfjr dh tkrh gSA g0 viBuh;
vij ftykf/kdkjh ¼uxj½@ MsyhxsfVM vFkksfjVh] esjBA** Sister does not come within the family of definition as defined under Section 2(g) of U.P. Act No. 13 of 1972. After release of the accommodation in dispute, the prospective allottee has no right to be heard in the matter and she could not have retained the accommodation under her tenancy as a licensee of her sister and as a licensee she can occupy the building for a period of only 3 months as provided under the Act with the consent of the landlord under information to the District Magistrate. Therefore, the petitioner was neither a licensee nor a allottee but had occupied the accommodation in dispute under the interim orders of the High Court for a some period, hence she has no right to continue in the accommodation in dispute. Thus, there does not appear to be any illegality or infirmity in the impugned orders passed by the courts below.
For all the reasons stated above, the writ petition is dismissed. No order as to costs.
Dated 7.3.2011 CPP/-