J.P. Singh vs R.S. Ojha
2014 Latest Caselaw 5422 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										          A.F.R.
 
Reserved
 

 
Case :- WRIT - A No. - 62227 of 2008
 

 
Petitioner :- J.P. Singh
 
Respondent :- R.S. Ojha
 
Counsel for Petitioner :- A.S. Rai,Prateek Sinha
 
Counsel for Respondent :- Arvind Srivastav,Asheesh Mani Tripathi,Rahul Sripat,Shesh Kumar
 

 
Hon'ble Pankaj Mithal,J.

The Rent Control and Eviction Officer, the delegated authority of the District Magistrate under U.P. Act No.13 of 1972 (hereinafter referred to as the Act) has passed an order dated 16.10.2008 under Section 16 of the Act for the release of a portion of house No.8, Kanpur Road, Allahabad in favour of Kailash Jaiswal respondent No.3, the so called owner. This order has been impugned by the petitioner, the prospective allottee by means of this writ petition.

The above residential portion is part of house No.8 Kanpur Road, Allahabad which is a Nazul land having an area of 1 acre i.e. 4418 sq. yards with six tenants and a Church. It belongs to Ladli Tandon, respondent No.2 who is the lessee of the same.

The disputed portion was under the tenancy of one Anil Mehrotra, who vacated the same. Petitioner J.P. Singh, accordingly moved an application for its allotment. It was declared to be vacant vide order dated 18.9.08.

At this stage, Kailash Jaiswal, respondent No.3 also moved an application for its allotment on 1.10.2008 alleging that it has been declared to be vacant and that Ladli Tandon respondent No.2 is the owner. He himself is living in a hotel and has no residential accommodation with him. His need for it is more hard pressing in comparison to the other applicants for allotment.

Subsequently, he filed another application asking for the release of the disputed portion in his favour describing himself to be the owner and landlord of the same on the strength of an agreement to sell dated 5.12.2006 executed in his favour and one Dr. A.K. Bansal jointly by the owner/lessee Ladli Tandon, respondent No.2.

The Rent Control and Eviction Officer holding Kailash Jaiswal respondent No.3 as the landlord within the meaning of Section 3(j) of the Act in view of a decision of the Allahabad High Court in the case of Geep Industrial Syndicate Allahabad and another Vs. Vinod Kumar Agarwal 1997 (1) ARC 396 released the disputed portion in his favour.

The petitioner is aggrieved by the aforesaid order of release.

I have heard Sri A.S. Rai, learned counsel for the petitioner and Sri Shesh Kumar, who appears for respondents No.2 and 3 both. Respondent No.1 is a formal party whereas respondent No.4 has been held to be an unnecessary party.

Before Sri Rai could address the court on the merits of the impugned order Sri Shesh Kumar, learned counsel raised a preliminary objection that the petitioner, who is simply a prospective allottee, has no locus standi to challenge the order of release passed by the Rent Control and Eviction Officer.

Sri Rai in response contended that a release application under Section 16 of the Act can only be filed by the owner/landlord and that Kailash Jaiswal, respondent No.3 is not the owner/landlord. He is only having an agreement to sell in his favour and as such could not have maintained the release application. The order of release is without jurisdiction.

In view of the rival submissions as aforesaid, the court on 14.7.04 formulated two points for consideration namely:-

(i) Whether a prospective allottee has a right to challenge the order of release passed under Section 16 of U.P. Act No. 13 of 1972 by means of a writ petition; and

(ii) Whether a person having an agreement to sell to purchase the property and who has filed an application for allotment has a right to maintain a release application under Section 16 of the Act?

Point No.1

There is no dispute between the parties that the petitioner is only a prospective allottee, who has applied for allotment of the portion in dispute. Secondly, the challenge in this petition is to the order of release passed by the Rent Control and Eviction Officer under Section 16 of the Act.

Section 18 of the Act provides that though no appeal lie from any order passed under Section 16 of the Act but any person aggrieved by the final order may prefer a revision to the District Judge within a period of 15 days of the order on the grounds enumerated under the Act which are similar to those contained in the Code of Civil Procedure. The order of release passed in favour of respondent No.3 is a final order passed under Section 16(2) of the Act and as such it is revisable under Section 18 of the Act. The petitioner has not preferred any revision but has invoked the writ jurisdiction of this court directly.

I could have dismissed the writ petition simply on the ground of alternative remedy but for more than one reason.

Firstly, the petition has been entertained and is pending for more than 6 years with pleadings exchanged. Therefore, it is more appropriate to decide the controversy regarding the correctness of the impugned release order instead of dismissing it on the ground of alternative remedy and to agrivate the agony of the litigating parties.

Secondly, in Smt. A.L. Albert @ Smt. Radha Sharma Vs. VIIth Additional District Judge Bulandshahr and others 1987 (1) ARC 397 it has been held that the prospective allottee has no right to file a revision against an order passed by the Rent Control and Eviction Officer releasing the accommodation in favour of the landlord under Section 16 of the Act. The petitioner as such has no statutory remedy available to challenge the release order.

It leaves him remedy less. It is settled legal position that a party cannot be left without a remedy vide (1996) 6 SCC 100 Rameshwar Lal Vs. Municipal Council, Tonk and others which has been followed by the Division Bench of this Court in 2006 All. C.J. 1926 Smt. Jagannathiya Vs. State of U.P. & others.

Now coming to the locus standi of the petitioner, who is a prospective allottee to assail the order of release, my attention immediately goes to the Full Bench decision of this court in the case of Talib Husain and another Vs. First Addl. District Judge, Nainital and others 1986 (1) ARC. In the said case the Full Bench was seized of an identical question as under:-

"Whether a prospective allottee has a right to file an objection and contest the application for release made by the landlord for a building or a part thereof after the deletion of the original Rule 13 (4) of the Rules under the U.P Act No. 13 of 1972 ?"

The Full Bench held that the application for release under Section 16 of the Act is a matter between the District Magistrate and the landlord where the outgoing tenant or the prospective allottee does not have any right to object. The prospective allottee has no locus standi to participate in the adjudication of the landlord's application for release of an accommodation. The landlord's claim for release supersedes every other claim that is for allotment provided he bona fidely requires the accommodation. The Act and the Rules does not contemplate that the prospective allottee has any right to file objections against the release application. He has no right to be heard in opposition to an application for release filed by the landlord. Even on the principle of audi alteram partem the prospective allottee has no right to file an objection and contest the application for release made by the landlord for a building or a part thereof.

The decision of the Full Bench was approved by the Supreme Court in the case of Vijay Kumar Sonkar Vs. Incharge District Judge and others 1995 (2) ARC 1 and it was clearly held that prospective allottee has no right to contest or to be heard on the release application under Section 16 of the Act as it is a matter between the landlord and the District Magistrate.

The aforesaid view expressed by the Full Bench and approved by the Supreme Court has been followed all through. A Division Bench of this court in case of Ajay Pal Singh Vs. District Judge Meerut 2008 (4) ALJ 409 (DB) and others also reiterated the above view and further held that landlord is not deprived of his legal right to make an application for release under Section 16 of the Act despite the fact that he had himself given the property in possession of a person without an order of allotment who is to be treated as unauthorised occupant.

A person who is only a prospective allottee has not been recognized as a person aggrieved by the order of release. In Bhairab Dutt Negarkothi Vs. District Judge, Pithoragarh and others 1992(1) ARC 261, it was held as under:

"..........Further the petitioner is only a prospective allottee and can not have any grievance against the release of the accommodation in dispute in favour of the landlady."

A learned Single Judge of this court in Khunni Singh Vs. District Judge, Kanpur and others 1995 (2) ARC 390 relying upon the Full Bench in the case of Talib Hussain and another (Supra) held that the prospective allottee has no right even to file a writ petition against the order releasing the disputed accommodation in favour of the landlord.

In view of above decisions, the law appears to be well settled that a prospective allottee has no right to participate in proceedings for release under Section 16 of the Act. He has no right even to file objections or to be heard and that he has no right to file a revision under Section 18 of the Act and at the same time a writ petition challenging the release order.

Point No.2

A glance at Section 16 of the Act indicates that on a building being declared vacant, the District Magistrate is competent to pass two types of order namely that of allotment and of release.

A building is available to allotment only if after vacancy it is not released in favour of the landlord.

Section 16(1)(b) of the Act provides that the District Magistrate by order release the whole or any part of the building in favour of the landlord and that such an order would be called a release order. The relevant part of the Section 16(1) of the Act reads as under:

"16. Allotment and release of vacant building-(1) Subject to the provisions of the Act, the District Magistrate may by order-

(a) require the landlord to let any building which is or has fallen vacant or is about to fall vacant or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order); or

(b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order)"

A plain reading of clause (b) of Section 16(1) of the Act reveals that the order of release has to be passed in favour of the landlord only that is to say on the application of the landlord alone.

The word 'landlord' is defined under Section 3(j) of the Act to mean a person to whom the rent of the building is or if it is let out would be payable and includes an agent or attorney of such person. Therefore, a person to whom the rent is payable including his agent or attorney is deemed to be the landlord of the building. Ordinarily, rent of a building is payable to its owner and it may be collected by his attorney or the agent. In some cases where the building has been leased out to a tenant with the stipulation to sublet, the rent by the sub-lessee would be payable to the lessee and in that case the lessee would be deemed to be the landlord.

The definition of the landlord as contained in Section 3(j) of the Act recently came up why consideration in the case of Mam Chand and others Vs. Pramodini Srivastava and others 2014(2) ARC 144. His Lordship of this court on consideration of the law on the subject explained the meaning and scope of the word "landlord" as used in the Act. It has been held that the word "landlord" refers to the owner of the building or a lessee of the building who inducts a person as tenant and to whom the rent becomes payable. The term "rent payable" means payable in law as a matter of right.

Thus a person who has a legal right to receive rent and to enforce the said right namely the owner of the building or the principal lessee is the landlord. It includes the person authorised to let out and collect rent of the building.

The definition of the landlord as given in the Act is inclusive and has been extended to include any person or any agent or attorney of the person to whom the rent is payable as aforesaid. The definition of the landlord specifies landlord to mean to whom rent is payable and excludes the person to whom the rent is paid.

In other words, a person who is not the owner, principal lessee or the agent or attorney of the owner or the principal lessee but to whom rent has been paid by the tenant would not be a landlord.

The release application under Section 16 of the Act as explained earlier, can only be maintained by the landlord inasmuch as Section 16(1)(b) of the Act specifically provides that the order of release can only be passed in favour of the landlord.

It is in this context that I have to examine whether the application for release of the premises in dispute filed by Kailash Jaiswal respondent No.3 is by the landlord of the building and is maintainable.

There is no dispute that the property is Nazul property which is on lease to Ladli Tandon, respondent No.2. He as such is the principal lessee to whom the rent would payable if it is let out. He would therefore, be the landlord of the same.

Kailash Jaiswal, Respondent No.3 in his application for allotment dated 1.10.08 admitted Ladli Tandon, respondent No.2 to be the owner and has claimed allotment. He is bound by his aforesaid admission in as much as the admission of fact is the best evidence and no evidence can travel beyond it to prove contrary to it.

In the light of the aforesaid admission it does not lie in his mouth to allege that he himself is the owner entitle to rent. There are no changed circumstances to permit him to take a complete u-turn and to start claiming himself to be the owner. The agreement to sell dated 15.12.06 was in existence when he moved the application for allotment on 1.10.08 accepting Ladli Tandon, respondent No.2 as the owner.

He had started claiming himself to be the landlord subsequently on the basis of the agreement to sell dated 15.12.2006 alleged to have been executed by Ladli Tandon, respondent No.2.

Section 54 of the Transfer of the Property Act, 1882 (hereinafter referred to as the T.P. Act) specifically provides that a contract for sale of immovable property does not of itself create any interest in or charge of such property. It means that the agreement to sell does not confer any right in the property in favour of the prospective purchaser. This has been well recognized by the courts in India on simple interpretation of Section 54 of the T.P. Act vide AIR 1967 SC 744 Ram Baran Prasad Vs. Ram Mohit Hazra and others and (1997) 1 SCC 496 State of U.P. Vs. District Judge & others.

In view of above, respondent No.3 is not the owner or the person upon whom any legal right over the property in question have been conferred in law. He cannot be recognized as the owner to whom the rent of the property if let out would be legally payable. He as such is not the 'landlord' within the meaning of Section 3(j) of the Act of the premises in dispute.

There is no evidence to show that respondent No.3 is either the agent or the attorney of the respondent No.2 who has been permitted to realise rent. No one has brought on record any material to establish that Ladli Tandon, has authorised Kailash Jaiswal respondent No.3 to realise rent of the premises in dispute. The agreement to sell has not been brought on record to indicate that any authority under it was given to Kailash Jaiswal, respondent No.3 to realise rent of the premises in dispute so long as the sale deed is not executed. It is not even the case of anyone.

In Geep Industrial Syndicate Allahabad (Supra) which has been relied upon by the Rent Control and Eviction Officer this court in considering the definition of the landlord held that a person in whose favour the owner and landlord has executed a registered agreement for sale and who is authorised to collect rent will be deemed to be the landlord.

The aforesaid authority lays down two conditions for treating a prospective purchaser to be a landlord. First, there has to be a registered agreement to sell in his favour by the owner and the landlord. Secondly, the owner and the landlord must have authorised him to collect rent.

It is only on the fulfillment of the above twin conditions that a prospective purchaser could be treated to be a landlord.

In the instant case though there may be an agreement to sell in favour of Kailash Jaiswal, respondent No.3 but there is no evidence to show that he has been authorised to collect rent. Therefore, on the strength of the aforesaid decision, he cannot be accepted to be the landlord so as to maintain the release application under Section 16 of the Act. Moreover, he is bound by his admission made in the application for allotment that Ladli Tandon, respondent No.2 is the owner and landlord of the disputed portion.

In view of the above, the order of release in his favour is illegal and without jurisdiction.

Relief

Having considered the above two points and finding that the petitioner, who is prospective allottee has no locus standi to challenge the order of release and at the same time that the order of release is without jurisdiction inasmuch it has not been passed on the application of the landlord or in favour of the landlord, the court is faced with a peculiar situation as to the relief, if any, that may be granted in this writ petition.

It is settled law that if the order is without jurisdiction, its correctness can be assailed at any stage and the courts of their own are not precluded to take cognizance of the inherent lack of jurisdiction of the authority passing the order to prevent miscarriage of justice.

The order of release impugned herein is patently without jurisdiction and therefore, it would be antithesis to justice to allow it to stand. An illegal and erroneous order if allowed to stand perpetuates illegality and injustice. In such a situation it is the bounden duty of the court to undo the illegality and for this the court may have to innovate law, leaving aside the conventional methods of justice. In B.P. Achala Anand Vs. Appi. Reddy and another (2005) 3 SCC 313 it has been observed that extraordinary situations demands extraordinary remedies. Therefore, to check miscarriage of justice in such extraordinary situations evolvement of new devices and remedies are essential as the court can not be a silent and moot spectator to actions throttling the course of justice.

In Brij Bhushan Lal Srivastava Vs. IIIrd Additional District Judge, Varanasi and others, his Lordship of this court in a similar matter where the release application under Section 16 of the Act was allowed and when the matter had travelled to this court by means of a writ petition filed by the prospective allottee, held that though prospective allottee has no right to challenge it but as the order of release was ex facie not based upon the material on record, it is liable to be quashed.

Therefore, even if petitioner has no locus standi and his application for allotment do not stand specifically rejected but as he has been deprived of allotment of the premises in dispute on account of an illegal order of release, taking cognizance on his petition this court in exercise of its extraordinary writ jurisdiction considers it appropriate to quash the impugned order dated 16.10.2008 passed by the Rent Control and Eviction Officer and directs him to proceed in the matter ignoring the release application of the respondent No.3 in accordance with law and to complete the proceedings as expeditiously as possible.

Accordingly, the order of release passed by the Rent Control and Eviction Officer is quashed and the writ petition succeeds with no order as to costs.

Order Date :-01.09.2014

Piyush