LAL CHAND Vs. DISTRICT JUDGE

JUDGEMENT

(1.) THIS writ petition has been preferred by an allottee in whose favour accommodation No. 307 (bearing new No. 3/3/45) situate in mohalla Thathrahiya Dilli Darwaja, Faizabad, had been allotted by the Rent Control and Eviction Officer, vide order of allotment dated 16.6.1986. The facts of the case in brief are that in respect of House No. 307 (New No. 3/3/45) situate in mohalla Thathrahiya Dilli Darwaja, Faizabad which belongs to Mandir Ram Janki and which is under the management of opposite-party No. 3 to the writ petition, on the death of one Ram Das (issueless) who was a tenant thereof, the vacancy did occur and upon the occurrence of vacancy the petitioner Lal Chand moved an application for the allotment of that house. The Rents Control and Eviction Officer called for a report from the Rent. Control Inspector about the vacancy and the Rent Control Inspector submitted his report and did report that the house mentioned above was an old one and subject to the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972). It belonged to Mandir Ram Janki, Nazar Bagh, Ayodhya and that its Manager was one Chhedi Lal. It was also reported to the Rent Control and Eviction Officer that one Ram Das who was tenant has died 2-1/2 years earlier or prior to the date of the report being made. Since after the death of Ram Das, the original tenant thereof one Shiv Prasad is in possession of that accommodation and Shiv Prasad has stated and has told the Inspector that he is tenant of the house on a monthly rental of Rs. 25/-. The Inspector further reported that Shri Shiv Prasad stated that papers relating to his lease of tenancy or writings relating thereto all do with his counsel. In paragraph 4 of the report the Inspector has given the details of the accommodation. The report is dated 28.1.1983 which has been annexed as Annexure C 3 to the counter-affidavit filed on behalf of opposite-party No. 2 in the case. After receipt of the Inspector's report the Rent Control and Eviction Officer issued notice to the persons concerned including Shri Shiv Prasad opposite-party No. 2. Opposite-party No. 2 Shri Shiv Prasad is the person who has been found in occupation at the time of inspection by the Rent Control Inspector and has been reported to have stated and to have claimed himself to be tenant in occupation of the said house as a tenant on a monthly rental of Rs. 25/-. Shri Shiv Prasad opposite-party No. 2 filed objections in writing to the Inspector's report and Chhedi Lal the Manager of Mandir Ram Janki, Ayodhya also filed objections. In the objections it was asserted and claimed that the house in dispute was covered by the provisions of Act No. XIII of 72. This has been the common plea in the objections of Shri Shiv Prasad as well as Chhedi Lal. It was further asserted that the accommodation in dispute or the house in dispute was not vacant as Shri Shiv Prasad was in occupation thereof as a tenant since 1981. Shri Shiv Prasad in his objection stated that the "original" tenant Ram Das was the Phoopha (husband of the father's sister) of Shiv Prasad. He further asserted that the original tenant of the accommodation was Shriram, the uncle of the objector Shri Shiv Prasad and Ram Das, the Phoopha of the objector as he has no family of his own neither he had any children so he used to dine and reside with the family members of the objector even after the death of Shriram. The keys has been with the objector and he has been using the accommodation for residential purposes as well as for carrying on dairy business and the accommodation is in his use and occupation as a tenant and he is continuously paying the rent thereof to the landlord. Therefore, as there is no vacancy there is no question of the accommodation being allotted in favour of Lal Chand or any one. In paragraph 10 of the objection the opposite-party No. 2 has stated that to avoid any controversy the applicant objector has already moved an application for allotment of the accommodation and if the accommodation in dispute is treated to be vacant the same may be allotted in his favour is the objector, namely, Shri Shiv Prasad. A copy of the objection of Shri Shiv Prasad has been annexed as Annexure C 1, to the counter-affidavit filed on behalf of opposite-party No. 2. The Rent Control and Eviction Officer rejected the objection filed by opposite-party No. 2 declaring the house in dispute to be vacant vide his order dated 7.5.1986 and allotted the accommodation in dispute in favour of Lal Chand-petitioner by order dated 16.6.1986, a copy of which had been annexed by the petitioner as Annexure 1, to the writ petition. The Rent Control and Eviction Officer did not consider the request of opposite-party No. 2 for allotment which request has been made in paragraph 10 of his objection which opposite-party No. 2 had filed on receipt of notice in the matter of declaration of vacancy and allotment application. Feeling aggrieved from the order of the Rent Control and Eviction Officer dated 16.6.1986 opposite-party No. 2 Shri Shiv Prasad the person-in-occupation of the house in dispute and who claimed himself to be a tenant, but without any order of allotment in his favour, filed revision under Section 18 of U.P. Act No. XIII of 72 in July, 1986 i.e. Revision No. 133 of 1980 Shiv Prasad v. Lal Chand and another. Learned District Judge, Faizabad (Shri Tej Shanker) after having considered the matter and the arguments of the learned counsel for the parties allowed the revision of the present opposite-party No. 2 in part and to this extent that the order of allotment passed by the Rent Control and Eviction Officer was set aside by the learned District Judge, Faizabad, and the case was remanded to the Rent Control and Eviction Officer with the direction that the Rent Control and Eviction Officer shall consider the claim of all the claimants for the house in question and then make an order of allotment, vide judgment and order dated 15.4.1988, annexed as Annexure 2 to the writ petition.

(2.) NOTICE of this petition having been issued to the parties and served through Dasti notice on the opposite parties. Counter-affidavit had been filed by opposite party No. 2 Shri Shiv Prasad. Rejoinder-affidavit has also been filed in reply to the counter-affidavit of opposite-party No. 2. A suplementary couter-affidavit has been filed on behalf of opposite-party No. 2 and the same has been taken on record. In the counter-affidavit it has been stated that there is no dispute about the accommodation in dispute belonged to Mandir Ram Janki and is under the management of opposite-party No. 3 it is denied that there is any vacancy in the aforesaid house in the eyes of law. It has further been asserted that opposite-party No. 2 has been residing in the house in dispute along with Shri Ram Das for a long time prior to his death and during his life time a fresh tenancy was entered into by opposite- party No. 2 with the consent of landlord. It was also asserted in paragraph 5 that the petitioner was one of the prospective allottee with respect to the premises in question. However, the vacancy was not admitted by opposite-party No. 2 and he filed detailed objections in trial court and that in paragraph 10 of the same the opposite-party No. 2 stated that if the court comes to the conclusion that there is vacancy then the said house may be allotted to opposite-party No. 2 and that after remand the opposite-party No. 2 had moved an application further for allotment of the premises in question. Opposite- party No. 2 has annexed copy of his objection as Annexure C 1 and copy of application for allotment as Annexure C 2 to the counter-affidavit. Opposite-party No. 2 in paragraph 9 has stated that the Rent Control and Eviction Officer has not acted according to law in passing or in issuing the allotment order in favour of petitioner without applying his mind as well as without considering the prayer made by the answering opposite-party No. 2 for allotment of the premises in his favour i.e. in favour of opposite-party No. 2 which prayer has been contained in paragraph 10 of the objection. Opposite- party No. 2 has taken the further stand as there were more than one applicant for allotment which it was incumbent on the Rent Control and Eviction Officer to have considered the case of every applicant for allotment before passing the order, and as such, the order of allotment passed in favour of Lal Chand was bad and, therefore, the revisional court acted in accordance with law and had been justified in allowing the revision of the answering opposite-party No. 2 in remanding the case to the Rent Control and Eviction Officer for consideration afresh after having set aside the order of allotment which has been passed in favour of the petitioner. As mentioned earlier the petitioner has filed the rejoinder-affidavit and has asserted that opposite-party No. 2 has been an unauthorised occupants of the accommodation and he had no right to remain in the same, particularly, when there had been no order of allotment in his favour. The petitioner has further asserted that enquiries made from the order of Rent Control and Eviction Officer disclosed that no application had been moved by Shiv Prasad prior to the date of allotment order or prior to the date of decision of Case No. 6 of 83 and the application for allotment has really been moved on 10.8.1988 and the said application has been moved after thought. The parties in their affidavits have challenged the question of bonafide need or requirement of either as regards the accommodation in dispute. In the supplementary affidavits the opposite-party No. 2 has tried to bring on record some alleged subsequent acquisition of accommodation by the petitioner. The question of bonafide requirement of accommodation by either is not a question to be considered by this court at this stage.

(3.) ON behalf of opposite-parties Shri Vijay Kishan Srivastava submitted that the prayer in paragraph 10 had been made for the allotment of that very house, for the allotment of which the application had been moved by the petitioner. He had submitted that earlier in 1983 as well an application had been made though no copy is available. He further submitted that even for a moment the opposite-party No. 2's application was not available allegations of paragraph 10 of the objection could be taken into consideration as a prayer seeking allotment of that very house and the Rent Control and Eviction Officer ought to have considered the case of the answering opposite-party No. 2 for the allotment if there was any vacancy in his opinion otherwise there was no vacancy as the accommodation in dispute has been in his (Shiv Prasad-opposite-party No. 2) use and occupation since long though admittedly there was no allotment order in favour of opposite-party No. 2. Shri Srivastava further submitted that if there was any technical defect and for that technical defect the prayer contained in paragraph 10 of the objection (Annexures C 1) could not be considered as application the Rent Control and Eviction Officer should have given an opportunity to present opposite-party No. 2 to remove the defect and to have given opportunity to place his case for allotment keeping in view the allegations of paragraph 10 of the objection (Annexure C1 to the counter-affidavit). Shri Srivastava submitted that rules of procedure are meant for the purpose of substantiating the cause of justice and not to mar or obstruct its procedure as well as not to deprive the citizens of their right to place his claim before the authorities concerned nor could his claim be deprived from being considered by the authorities concerned but instead of giving any opportunity to the answering opposite- party the Rent Control and Eviction Officer ignored the claim of the answering opposite-party No. 2 and allotted the accommodation in dispute in favour of the petitioner that was jurisdictional error on the part of the authority concerned and, therefore, the learned District Judge did not commit any error of law or of jurisdiction in allowing the revision and in setting aside the order dated 16.8.1986 and in remanding the case to Rent Control and Eviction Officer for considering the matter afresh on merits along with the claim of other claimants for allotment. Shri Srivastava further submitted that as it was the case of opposite-party No. 2 that he had been running dairy farm since 1970-71 and has also been residing therein since then and even if there was no allotment order his possession was a valid one and it was regularised one under Section 14 of the Act and there was no vacancy in the eye of law. This last contention of the learned counsel for Opposite-party No. 2 was repelled by the learned counsel for the petitioner by submitting that since after the death of Ram Das which had taken place sometime in 1981. Opposite-party No. 2 is residing herein and using the same as a tenant and till his death Ram Das was a tenant so occupation of opposite-party No. 2, after death of Ram Das without an allotment order, was unauthorised one and so there was a vacancy and there is no question to the same being regularised or deemed to have been regularised under Section 14 of the Act.