MOHAN LAL Vs. GIRRAJ KISHOR

JUDGEMENT

(1.) The petitioner asserts that he is the tenant of the accommodation in dispute who aggrieved by the order dated 11.8.2004, passed by the revisional authority in Revision No. 7 of 1999 filed under Section 18 of the U. P. Act No. 13 of 1972, whereby the revisional authority dismissed the revision filed against the order dated 7.12.1999, passed by the prescribed authority whereby the prescribed authority has allowed the application filed by the respondent-landlord under Section 15 of U. P. Act No. 13 of 1972 read with Rules 9 and 16 (1) (b) approached this Court by means of this writ petition under Article 226 of the Constitution of India.

(2.) The facts giving rise to the present writ petition are that the respondent-landlord on 10.8.1994, filed an application purported to be an application under Section 15 of the U. P. Act No. 13 of 1972 read with Rules 9 and 16 (1) (b) of the Rules framed thereunder with the allegation that the accommodation in dispute is in fact vacant and it should therefore be released in his favour. The aforesaid application was allowed by the Rent Control and Eviction Officer vide order dated 19.8.1994, declaring the accommodation in dispute to be vacant. On 25.8.1994, the landlord filed an application for release of the accommodation in dispute in his favour when the petitioner came to know of the aforesaid proceedings of release pending before the Rent Control and Eviction Officer. The petitioner filed an application on 9.9.1994, for setting aside the ex parte order dated 19.8.1994, whereby the accommodation was declared vacant. In his objection the petitioner has categorically stated that he is the sitting tenant against whom the landlord has already filed an application under Section 21 (10) (a) of the U. P. Act No. 13 of 1972, which is pending before the prescribed authority as P.A. Case No. 3 of 1991. It is also stated in the objection that in fact the accommodation is not vacant and since the entire proceedings is going on behind his back, this fact could not be brought to the notice of the Rent Control and Eviction Officer . On the question of the declaration of the vacancy the petitioner has raised objection on the ground that before declaring any vacancy, he should be given an opportunity. However, during the pendency of the aforesaid application for recall of the ex parte order, the petitioner filed a writ petition before this Court challenging the order dated 19.8.1994 by means of the Writ Petition No. 18946 of 1999, which has been decided by this Court on 6.5.1999. This Court directed the prescribed authority to decide the application filed by the petitioner for setting aside the ex parte order dated 19.8.1994 first and thereafter to proceed with the matter for release of the disputed shop. After the aforesaid matter was remanded back to the revisional authority the revisional authority by impugned order has dismissed the revision on the ground that pursuant to the direction issued by this Court it has considered the case set up by the petitioner against the release order and the question of declaring vacancy the revisional court has taken the view that the question of declaration of vacancy could have been challenged by the petitioner but the same has not been challenged and this Court according to the revisional authority has only issued direction to decide the matter after giving opportunity to the petitioner and after disposing of the objection of the petitioner, therefore, revisional authority did not permit the petitioner to question the order of declaring the vacancy. Learned counsel for the petitioner has relied upon the decision of the Apex Court in Achal Misra v. Rama Shankar Singh, 2000 (4) AWC 2960 (SC) : 2000 (2) ARC 446, wherein the Apex Court relying upon earlier decisions in Dr. Trilok Singh and Co. v. District Magistrate, Lucknow and Ors., (1976) 3 SCC 726 and another case Ganpat Roy and Ors. v. Additional District Magistrate and Ors., (1985) 2 SCC 307, dealt with the controversy. On the strength of the aforesaid judgment learned counsel for the petitioner has submitted that there is no doubt that the controversy raised in the case of Achal Misra (supra) referred to be decided by larger Bench but on the facts of the Achal Misra's case which are similar to the case of the petitioners, the Apex Court has held since the Rent Control and Eviction Officer has not complied with the provisions of Rule 8 and had not disposed of the objection, therefore, the order of the Rent Control and Eviction Officer deserves to be questioned by means of revision under Section 18 of the Act before the revisional authority.

(3.) Learned counsel for the respondent contended that all the objections which could have been raised by the petitioner have been raised by the petitioner in the form of the grounds taken before the revisional authority. The revisional authority who is directed by this Court in the earlier writ petition filed by the petitioner has issued direction referred to above to the revisional authority and the revisional authority has complied with the direction and ultimately decided the matter rejecting the objection filed by the petitioner the revisional authority has recorded the finding regarding question of vacancy and after rejecting the petitioner's case against declaration of vacancy decided the matter of release holding that since release is a matter between the landlord and the District Magistrate/Rent Control and Eviction Officer, the revisional authority should have rejected the petitioner's revision on this ground alone. From the perusal of the impugned order wherein the revisional court has held with regard to the declaration of vacancy that since there is no direction by this Court in the earlier writ petition filed by the petitioner that the authority should decide the question of vacancy also which could have been challenged by means of revision and that having not been challenged will not be permitted to be challenged. The fact that there is an application under Section 21 (1) (a) of U. P. Act No. 13 of 1972, pending before the prescribed authority is not denied and this aspect has not been looked into by the revisional authority.