JAGJIT SINGH Vs. DISTRICT JUDGE AND ORS.

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India has been filed by the occupant of a house situated at Mussoorie. The house in question was occupied by a tenant Sri T.N. Sharma, who vacated the house on 24 -4 -1976. It is stated that the petitioner occupied the premises illegally without any valid allotment order after the sitting tenant Sharma vacated the accommodation. After the enquiry the learned Rent Control and Eviction Officer found that the petitioner entered into possession after T.N. Sharma sitting tenant had vacated the house. The case of the petitioner was that he was occupying the premises since September, 1975. He denied that he had entered through T.N. Sharma. The learned Rent Control and Eviction Officer after opportunity to parties and due enquiry declared the vacancy and held that petitioner was occupying the premises without any valid allotment order in his favour. The landlord of the house had also moved an application for release of the accommodation. It was also released in favour of the landlord. Against the said order, the revision was filed by the petitioner in 1985. The revision was kept pending for about 6 years. The revision was dismissed by judgment and order dated 28 -9 -1991. The learned District Judge, Dehradun by the impugned order directed that the vacancy declared by order dated 18 -9 -1985 is confirmed but the order dated 10 -1 -1990 releasing the accommodation in favour of the landlady -opposite party No. 2 is set aside. The matter was remanded for fresh consideration about the allotment of the house in question. The settled view is that an order declaring vacancy is not open to challenge in revision,, AIR 1985 SC 1685 is clear on the point. The Bench who heard the writ petition on the earlier occasion directed the petitioner to file supplementary affidavit explaining the delay of six years in filing the writ petition as no revision lies whether the period of six years consumed in the court below in revision proceedings were to be taken into consideration for condoning the laches in filing of the writ petition. The learned counsel for the petitioner filed one affidavit of Jagjit Singh, petitioner, who stated in para 4 that his counsel Sri J.L. Bansal Advocate, who had 25 years standing had advised him in view of a decision, AIR 1976 SC 1988 that a revision was maintainable before the District Judge. I am surprised to note that learned counsel having standing of more than 25 years would give such a legal opinion in view of the fact that in, 1985 SC 1635 was reported case law on the subject. At least the Current Law Reports are generally seen by the lawyers practising in a particular side. If it appears that such an allegation has been made in the supplementary affidavit explaining the delay which I am not inclined to accept as correct and faithfully stated. The delay about 6 years in filing the writ petition beyond 90 days is nothing but laches on the part of the petitioner. Further there is no affidavit or letter of the learned Advocate who is said to have given the legal advice to file a revision before the court below. It is also not stated that the learned counsel who gave the legal opinion for filing revision had examined the law on the point and then only advised to file revision. If an opinion is casually given by a lawyer without caring to examine the law on the point, it would not be a legal advise at all. No benefit could be given to a person whose lawyer gave erroneous advise unless it is shown that the error was bona fide. In absence of affidavit of the advocate or his written letter or comments there is no material before the Court to hold that the counsel may have committed bona fide error. It is clear that all these 6 years delay in supplementary affidavit is afterthought and I do not accept them. The writ petition is liable to be dismissed on this ground of laches alone. However, I consider it necessary in the ends of justice to examine the case on merits also and I have heard the learned counsel for the petitioner at length on merits. The perusal of the record filed by the petitioner shows that he had filed some certificate from the Employer which indicated that the petitioner was occupying the premises since September, 1975 and not after vacancy created by quitting of T.N. Sharma on 24 -4 -1976. To the same effect, there was some certificate filed which was issued by the employer of the petitioner in 1985. These documents have been annexed with the petition by the petitioner as Annexures. No doubt the petitioner have stated that these are the true copies of the documents but it has not been categorically stated that these documents were pointedly brought to the notice of the court who decided the matter. It is necessary that if certain documents is to be relied, it has to be pointed out to the court below. If there is no such averments in the writ petition, it has to be assumed that such an argument was not advanced before the court below and such document was not pointedly shown to him. The petitioner miserably has failed to show any cogent evidence by which it may be assumed that he was occupying the premises prior to quitting of the accommodation in 1976 by T.N. Sharma. So far the finding recorded by the court below that the accommodation was occupied by the petitioner without any valid allotment order appears to be just and correct and calls for no interference under Article 226 of the Constitution.

(2.) SO far as the other part of the judgment by which the court below in exercise of the revisional power set aside the finding about the release of the accommodation in favour of the landlady and remanding the case is concerned, appears to be pending before the Rent Control and Eviction Officer for deciding the application, for release on merits, the same shall have to be decided according to law.

(3.) IT is made clear that the Rent Control and Eviction Officer/District Magistrate shall continue the proceedings for deciding the application for release by landlord and finalise it within next four months. In case the accommodation is released in favour of landlord or allotted in favour of some tenant, such an order shall not be given effect for a period of six months from today. It is directed that the petitioner shall vacate the accommodation in question on or before 30th May, 1992. He shall not induct anyone and handover actual vacant possession to the landlord/allottee. For this period of occupation for the present six months, the petitioner shall deposit the monthly amount of rent payable to the landlord within a period of two months. In case of default of either of the directions, the stay order shall stand automatically vacated. The writ petition is dismissed. Parties to bear costs.