Allahabad High Court
Om Prakash Tiwari vs Smt. Sefati Chatterjee And Anr. on 10 July, 2013
Bench: Rajes Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - A No. - 34008 of 2013
Petitioner :- Om Prakash Tiwari
Respondent :- Smt. Sefali Chatterjee And Anr.
Counsel for Petitioner :- P.K. Ganguly
Counsel for Respondent :- C.S.C.,Sri Siddharth
Hon'ble Rajes Kumar,J.
By means of the present writ petition, the petitioner is challenging the order dated 16.3.2013 passed by the Additional District Judge, Court No.1, Varanasi by which the revision filed by the petitioner has been dismissed.
The brief facts of the case are that in respect of shop situated in premises No. B8/98 Bada Gambhir Singh, Police Station Bhelupur, Varanasi, which is owned by Smt. Shefali Chatterji, wife of late Kartik Kumar Chatterji, filed an application under Section 12 read with Section 16(1)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") for release of shop in question alleging that the said shop was let out to the petitioner only for 11 months and after expiry of said period in August, 1991 he ceased to be a legal occupant thereof and, therefore, is liable to be ejected. Since Smt. Shefali Chaterji needs the accommodation in question for setting her daughter-in-law by commencing a business by converting some part of house in question in commercial accommodation, therefore, it should be released in her favour.
The application was registered as Case No. 84 of 1991. The Rent Control and Eviction Officer/Additional District Magistrate (Civil Supply), Varanasi (hereinafter referred to as the "RCEO") declared accommodation in question vacant by its order dated 28.5.1994 and directed for notification of vacancy for further proceedings for allotment. Subsequently, vide order dated 11.4.1996 the petitioner's application for release of accommodation in question was allowed and it was released in her favour by RCEO.
It may be mentioned here that the order dated 28.5.1994 passed by the RCEO declaring the accommodation in question vacant has not been challenged before any of the competent authority and has become final.
The petitioner took up the matter in Rent Revision No. 196 of 1996 whereupon the Additional District Judge has decided the revision vide judgment dated 30.7.2003 setting aside RCEO's order of release and allowed the revision. The Revisional Court held that once the accommodation has been let out by a landlord illegally without any letter of allotment and in violation of statutory provisions of Act, 1972, such a landlord would not be entitled for release of accommodation under Section 16 of the Act, 1972. The said revisional order has been challenged by the respondent in Writ Petition No. 47752 of 2003, Smt. Shefali Chaterji Vs. Additional District Judge, Varanasi and others. The writ Court vide order dated 5.9.2012 allowed the writ petition and remanded back the matter to the revisional court to decide the revision in accordance to law. The revisional court while setting aside and remanding back the matter has relied upon the decision of the Division Bench dated 5.2.2008 passed in Writ Petition No. 37767 of 2003, Ajay Pal Singh Vs. District Judge, Meerut and others, wherein it has been held that the landlord is not deprived of his legal right to make a release application in respect of a building, which had been earlier given in possession, by him, to an authorized occupant in violation of the provisions of Act No. 13 of 1972; the release application made by the landlord cannot be ignored nor the order passed thereon can be termed to be void or of no effect; the High Court in exercise of powers under Section 226 of the Constitution of India need not declare the order made in favour of such a landlord as void.
In pursuance of the order passed by this Court in the aforesaid writ petition, the revisional authority dismissed the revision by the impugned order dated 16.3.2013. The revisional court has upheld the order of the RCEO dated 11.4.1996 by which the property in dispute has been released in favour of the landlord mainly on the ground that the landlord has a bonafide need of property in dispute, which is being challenged in the present writ petition.
Learned counsel for the petitioner submitted that the impugned order is unjustified. He submitted that the landlord is not able to establish the bonafide need and, therefore, the release is not justified.
Sri Siddharth, learned counsel for the respondent submitted that the prospective allottee has no right of objection against the release application filed under Section 16(1)(b) of the Act by the landlord. The right of consideration for allotment accrues only after the rejection of the release application of the landlord and, therefore, his claim for release in his favour cannot be entertained. Reliance is placed on the Full Bench decision of this Court in the case of Talib Hasan and another vs. 1st Additional District Judge, Nainital and others, reported in A.R.C., 1986 (1) page 1. He further submitted that both RCEO as well as revisional authority have examined the bonafide need of the landlord. The finding in this regard is finding of fact and may not be interfered by this Court.
I have considered the rival submissions and perused the impugned order.
The Full Bench in the case of Talib Hasan and another vs. 1st Additional District Judge, Nainital and others (Supra) held as follows:
"The right of the prospective allottee is not an absolute right. It is contingent upon, firstly, the accommodation being vacant and, secondly, the building being available for allotment. Rule 13 (4) as it stands, at present reinforces this conclusion. It provides that no allotment in respect of a building covered by an application under Section 16 (1) (b) shall be made unless such application is rejected. The right of a prospective allottee to have his application considered hence arises only after the rejection of the landlord's application under Section 16 (1( (b). A fortiori the prospective allottee comes into the picture only after the disposal of the landlord's application for release under Section 16 (1) (b), and, only if the same is rejected.
So far, therefore, as the scheme of the Act and the rules framed thereunder is concerned, the same, in our opinion, clearly points to the conclusion that a prospective allottee has no right of objection against the release application filed under Section 16 (1) (b). As mentioned above, this right to have this application considered for allotment accrues only after the rejection of the release application. Indeed the consideration of the applications for allotment is taken up only after the rejection of the application under Section 16 (1) (b). Neither the Act nor the rules framed thereunder thus postulate any right in a prospective allottee to file objections against the release application.
The prospective allottee has also no right or interest in the property or claim against the landlord so as to be entitled to any hearing in the disposal of the release application on general principles or doctrine of audi alteram partem.
We have reached the above conclusion on a systematic analysis of the statute even without the aid of the old Rule 13 (4). The old Rule 13 (4), in our opinion, which was dropped in 1977, merely recognized the long settled legal position as spelled out by series of decisions rendered on the construction and scope of Rule 5 framed under the 1947 Act. It was purely declaratory in nature and appears to have been inserted by way of reiteration of the existing legal position. Its deletion hence did not, in our considered view, bring about any change in the legal position, namely, that prospective allottees have no locus standi in the disposal of an application for release under Section 16 (1) (b)."
In view of the Full Bench decision of this Court, in my view, the petitioner's claim for allotment, being prospective allottee, cannot be entertained. The revisional authority has examined the bonafide need of the landlord and has justified the release of the accommodation in dispute in favour of the landlord. The finding of the revisional authority is finding of fact, which does not require any interference or any judicial review.
In view of the above, the writ petition is devoid of merit and is accordingly dismissed.
Order Date :- 10.7.2013
OP
