LAL CHAND Vs. DISTRICT JUDGE, FAIZABAD AND OTHERS

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 June 16, 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 Rent 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 was 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 or the tenancy or writings relating thereto all are with his counsel. In paragraph 4 of the report the Inspector has given the details of the accommodation. The report is dated 28 -1 -83 which has been annexed as Annexure -C3 to the counter affidavit filed on behalf of opposite party No. 2 in this case. After receipt of the Inspector's report the Rent Control and Eviction Officer issued notice to persons concerned including Shri Shiv Prasad 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 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 or the objector, namely, Shri Shiv Prasad. A copy of the objection of Shri Shiv Prasad has been annexed as Annexure -C1, 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 -86 and allotted the accommodation in dispute in favour of Lal Chand petitioner by order dated 16 -6 -86, a copy of which has 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 had 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 -86 opposite -party No. 2 Shri Shiv Prasad the person in occupation of the house in the 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 1972 in July, 1986 i.e. Revision No. 133 of 1986 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 -88, annexed as annexure 2 to the writ petition. 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 supplementary counter -affidavit has also 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 but it is denied that there is any vacancy in the aforesaid house in the eye of law. It has further been asserted that opposite -party No. 2 has been residing in the house in dispute alongwith 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 (sic) form for allotment of the premises in question. Opposite -party No. 2 has annexed copy of his objection as annexure -C1 and copy of application for allotment as annexure -C2 to the counter -affidavit, Opposite -party No. 2 in paragraph 9 has stated that the Rent Control and Eviction Officer had 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 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 had 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 occupant 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 office 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 -88 and the said application has been moved as an after -thought. The parties in their affidavits have challenged the question of bona fide need or requirement of either as regards the accommodation in dispute. In the supplementary affidavit the opposite -party No. 2 has tried to bring on record some alleged subsequent acquisition of accommodation by the petitioner. The question of bona fide requirement of accommodation by either is not a question to be considered by this court at this stage.

(2.) I have heard Shri S.K. Mehrotra, learned counsel for the petitioner assisted by Shri I.D. Shukla, Advocate and Shri Vijai Krishna Srivastava, counsel for the opposite -parties at great length. I have gone through the record of the case. Shri S.K. Mehrotra, learned counsel for the petitioner has submitted before me that opposite party No. 2 had not moved any application for allotment prior to the passing of the allotment order in favour of the present petitioner i.e., no application for allotment had been moved by Shri Shiv Prasad, the sitting tenant who was occupying it without any allotment in his favour. Shri Mehrotra submitted that occupation of accommodation in question by Shiv Prasad without an allotment order in his favour was unauthorised one in view of Sections 11, 12 and 13 of the Act, and, as such, the accommodation was in the eye of law vacant and the District Magistrate/Rent Control and Eviction Officer was competent to make allotment order. He further submitted that as no application for allotment had been moved by Shri Shiv Prasad - -opposite party No. 2 there was no occasion for the Rent Control and Eviction Officer to consider the question of allotment of accommodation in dispute in favour of the present opposite -party No. 2 Shiv Prasad and so it did not commit any error of law or jurisdiction and, therefore, the District Judge, acted in excess of jurisdiction in allowing the revision and remanded the case. He submitted that under section 16 of the Act there is power vested in the Rent Control and Eviction Officer to make allotment and under section 41 of the Act the power had been given to the government to frame rules necessary and required for the purpose of carrying out the objects and purpose of the Act and the Rules in this regard had been framed and, as such, rules have got to be followed. Shri Mehrotra, learned counsel for the petitioner invited my attention to R.10 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 and in particular laid emphasis on sub rule (1) of R.10 of the Rules framed under the Act. He submitted that until an application for allotment in Form A has been made, it is not open to the authority concerned to proceed with the matter of allotment in favour of a person and he added that application for allotment has got to be moved in the prescribed form and if it is not made in the prescribed form it is liable to be rejected. Shri Mehrotra, learned counsel for the petitioner submitted that R.10 of the Rules is mandatory and in support of his contention Shri S.K. Mehrotra referred to a decision of this Court in the case of Jairaj Singh v. District Magistrate and others : 1979 Rent ControlCases 20 also reported in, 1979 AWC 45 and, 1979 ALJ 18. He had also made a reference to the decision of this Court in Upkar Singh v. District Judge and others, 1978 (2) U.P. Suppl. Rent Control Cases 491, Shri Mehrotra has also placed reliance on the decision of this Court in the case of Mitra Sen Yadav v. Additional District Judge, Faizabad : 1985 (11) ALR 504. Shri Mehrotra in support of his contention further referred to the observations made in the case of M/s. Sherwani Sugar Syndicate v. Additional District Judge, Etah and others, 1978 ARC 503 to lay great emphasis that an order for allotment of an accommodation can be made only on an application being made by a person and the order of allotment cannot be made suo motu by Rent Control and Eviction Officer in favour of a person not an applicant for allotment.

(3.) I have given my due consideration to the contentions of the learned counsel for the parties and have also gone through the record. As regards the last contention regarding vacancy there is no doubt no force in the contention of Shri Vijai Krishna Srivastava, learned counsel for opposite -party No. 2. In view of provisions of Sections 11 and 13 of the Act, as has been laid down by Full Bench of this Court in the case of Nutan Kumar v. Additional District Judge, Banda : 1993 (22) ALR 437, an agreement of lease between landlord and tenant for letting and occupation of a building in contravention of the provisions of U.P. Act XIII of 72 is void. Section 11 of the Act imposes prohibition or restriction against letting out of an accommodation without an allotment order. Section 13 of the Act provides and places restriction on occupation of the building without allotment order. A joint reading of sections 11 and 13 of the Act imposes prohibition on letting out without allotment order. Section 11 of the Act placed restriction on occupation without allotment or release. These two sections are required to be read together. When these two sections are read together it leads to one conclusion that neither can the landlord let out a premises without allotment order nor can any one occupy it. Letting or occupation otherwise than an allotment order after the commencement of the Act is totally forbidden by law act, as such, the letting or occupation of a building in contravention of provisions of Sections 11 and 13 of the Act i.e. without an allotment order or release will be void. An agreement offending a statute or a public policy or forbidden by law is ordinarily void and invalid from nativity, subject to those exceptional cases where the law expressly makes a provision regularising or revalidating the same as the cases covered by section 14 of the Act. Section 14 of the Act will not be available to opposite -party No. 2 nor can any benefit or protection thereof be available by opposite -party No. 2 as the umbrella or protection of section 14 of the Act will be available to a tenant or licensee in occupation of the building or accommodation on the specified date referred to in that section i.e. the date of commencement of U.P. Act No. 28 of 76, if every conditions mentioned therein are shown to exist i.e. his occupation is with the consent of the landlord and no proceedings for his eviction had been going on, on the date of such commencement or immediately earlier thereto. As regards the present case the possession of opposite -party No. 2 as a tenant did commence since 1981 so even if other conditions are there but the basic and fundamental condition for application of section 14 of the Act does not exist in this case as regards opposite -party No. 2. So the occupation of the house by opposite -party No. 2 without an allotment order since 1981, after the death of Ram Das had been unauthorised one in view of section 13 of the Act and the occupation of opposite -party No. 2 being unauthorised one or being void in the eye of law there had been a vacancy on the material date. As such, the contention of the learned counsel for opposite -party No. 2 on this ground is rejected.