R.S. SINHA Vs. ADDL. DISTRICT JUDGE

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India arises out of the judgment and order dated 11.8.1992 passed by Additional District Judge-VII, Lucknow, in a revision under Section 18 of U.P. Act No. XIII of 72 which order has been annexed as Annexure-6, to the writ petition. The facts of the case briefly are that opposite-party No.3 Gopal Das has been the owner-landlord of House No. 206/62 Bagh Sherjung, Lucknow, and one Smt. Manjulata Saran was tenant in occupation thereof. In the year 1981 the tenant of the accommodation, namely, Smt. Manjulata had been transferred and she left the accommodation. The said accommodation was occupied by the petitioner Shri R.S. Sinha. The position as admitted by the learned counsel for the petitioner is that Shri Sinha who had entered into possession of the accommodation in dispute after its vacation by Smt. Manjulata Saran, had not got any allotment order in his favour at the time he entered into occupation of that accommodation. Shri Ram Autar, opposite party No. 4, moved an application for allotment of that accommodation in his favour and by order dated 31.5.1988 the said accommodation had been allotted in favour of opposite-party No. 4 by the City Magistrate/Rent Control and Eviction Officer, Lucknow, opposite party No.2. The petitioner's case is that when he came to know about the order dated 31.5.1988 i.e., allotment order which had been passed in favour of opposite-party No. 4 the petitioner made enquiries and thereafter on 10.8.1988 the petitioner filed a review application under Section 16(5) of U.P. Act. No. XIII of 1972 against the aforesaid allotment order dated 31.5.1988. The petitioner's case is that he raised a number of plea therein which had been incorporated in paragraph 10 of the writ petition. On 7.10.1988 opposite-party No.4 Ram Autar filed objection against the application for review moved by the petitioner under Section 16(5) of the Act. By order dated 14.9.1990 opposite party No.2 recalled the order of allotment passed by him and fixed 4.10.1990 as the next date for re-hearing of the matter of allotment. Having felt aggrieved from order dated 14.9.1990 passed by opposite-party No.2, a revision application under Section 18 of U.P. Act No. XIII of 72 was filed by opposite-party No.4 before the District Judge, Lucknow namely, Rent Revision No.2 of 1991 Ram Autar v. R.S. Sinha and others. By judgment and order dated 11.8.1992 the learned VII Additional District Judge, Lucknow allowed the revision of opposite-party No.4 and set aside the order dated 14.9.1990 which had been passed by opposite-party No. 2 under Section 16(5) of the Act. Having felt aggrieved from the order dated 11.8.92 passed by VII Additional District Judge, Lucknow, the petitioner has filed this petition under Article 226 of the Constitution of India for a writ of certiorari quashing the order dated 11.8.1992 passed by opposite party No.1, contained in Annexure-1 as well as for a writ, order or direction in the nature of mandamus commanding the opposite-party No.2 not to implement or enforce the order dated 11.8.1992 as well as not to evict the petitioner. Counter affidavit has been filed by the opposite parties to the writ petition.

(2.) I have heard Shri Anil Kumar, learned counsel for the petitioner as well as Shri P.C. Srimal, learned counsel for opposite-party No. 4. Learned Additional District Judge-VII has allowed the revision taking the view that review petition under Section 16(5) of the Act was not maintainable at the instance of Shri R.S. Sinha, and, as such, opposite party No.2 could not entertain the same, nor could it set aside the order of allotment, and, as such, the order dated 14.9.1990 was held by the Additional District Judge to be illegal, null and void and was set aside. Learned counsel submitted that the order passed by Additional District Judge is illegal. The petitioner had a right to seek allotment of the accommodation. Simply because he is in unauthorised possession for want of an allotment order in his favour, it cannot be said that his matter or case for allotment cannot be considered. On behalf of opposite-party No.4 Shri P.C. Srimal submitted that short question in the writ petition is whether an application for review under Section 16(5) of the Act could be moved and be entertained at the instance of one who is in unauthorised occupation and he submitted that if the application under Section 16(5) of the Act is not maintainable at the instance of the petitioner the order of Rent Control and Eviction Officer recalling the order of allotment was without jurisdiction. The answer to the short question will depend on interpretation of Section 16(5)(a) of the Act.

(3.) SECTION 16(5) of the Act provided for a review of an order made under sub-section (1) of Section 16 of the Act. Section 16(5) of the Act reads as under :-