CHAMELI DEVIS Vs. VITH ADDL DISTRICT JUDGE AGRA

JUDGEMENT

(1.) By means of this writ petition the petitioners have prayed for quashing the order dated 18.4.78 passed by the Rent Control and Eviction Officer (R. C. and E. O.| releasing the disputed property in favour of the landlords respondent Nos. 3 to 5, the order dated 9.3.79 rejecting the petitioners' application moved under Section 16 (5) of the U. P. Act No. XIII of 1972 (hereinafter referred to as the Act), and the order dated 14.1.1982 passed by the revisional court dismissing the petitioners' revision.

(2.) In order to appreciate the controversy involved in the case, it may be relevant to mention a few facts. The subject-matter of dispute is shop No. 33A. Pratappura, Ajmer Road. Agra. Jamuna Prasad the predecessor in interest of the petitioners and the respondent No. 6 was in occupation of the said shop as tenant at a monthly rent of rupees 15. The landlords filed an application dated 12.4.1978 for releasing the shop in question in their favour on the ground that the shop was likely to fall vacant as the tenant Jamuna Prasad was agreeable to vacate the shop. The Rent Control Inspector made an inspection and reported that the intimation of vacancy has been received from the tenant that he intended to vacate the shop in question in a week or so and the need of the landlord was bona fide. The R. C. and E. O. released the shop in favour of the landlords by the order dated 18.4.78 as no objection against notification of the vacancy was received. Jamuna Prasad then filed an application under Section 16 (5) of the Act for cancelling and setting aside the order dated 18.4.78 releasing the shop in question in favour of the landlords, with the allegation that the shop was neither vacant de facto nor dejuro nor it could be deemed to be vacant nor he had any intention to vacate the same and the release order has been obtained on misrepresentation of real facts and by playing fraud. The tenant has been carrying on business of lyre and tube repairs for the last forty years. It was also stated therein that no notice has been served upon him of the proceeding nor he had been afforded any opportunity to contest the proceedings of declaration of vacancy and the release order made in favour of the landlords. According to him the shop in question was not vacant and he had given no intimation of vacancy. The landlords had obtained his signatures on a blank paper on a false pretext that they were applying for issuing a permit of cement for repair of the roof of the shop in question and believing the said statement of the landlord he signed that paper which has been misused by the landlords as intimation of vacancy. In brief, the order releasing the shop in question in favour of the landlords was challenged as being obtained on misrepresentation and fraud and also on the ground that he had been afforded no opportunity of hearing. It further appears that during the pendency of the said application under Section 16 (5) of the Act, Jamuna Prasad, died on 22.10.78. His heirs, the present petitioners and respondent No. 6 moved an application for substitution. To that application the landlords filed objections infer alia alleging that the application was not legally maintainable as there was no provision for bringing them on record to prosecute the review application made by late Jamuna Prasad in such proceedings. The substitution application was rejected by the R. C. and E. O. by the order dated 7.12.78 merely on the ground that under the Act the only provision for substitution is contained in Section 34 (4) of the Act and since the said provisions applied only in the proceedings for eviction and for enhancement of rent, the application for substitution moved in proceedings under Section 16 (5) of the Act was not maintainable. The petitioners then on 14.12.78 moved an application purporting to be under Section 16 (5) of the Act stating therein that after the death of Jamuna Prasad, they are in occupation of the shop in question as legal heirs of the deceased tenant. The release order made in favour of the landlord was challenged on the same grounds as were raised by the deceased tenant Jamuna Prasad, viz., that the said order was obtained by the landlord on fraud and misrepresentation and so called intimation of vacancy was a forged and fictitious document as no such intimation was ever sent by late Jamuna Prasad. On an objection being raised by the landlord about the maintainability of that application, the R. C. and E. O. by the order dated 9.3.1979 rejected the, aforesaid application of the petitioners as barred by time. Aggrieved by the said order, the petitioners preferred revision which has also been dismissed by the revisional court by the order dated 11.2.1982 on the ground that no second review application under Section 16 (5) was legally maintainable.

(3.) Sri K. M. Dayal, senior advocate appearing for the petitioners raised a number of contentions before this Court. He argued that since in the present case tenancy of late Jamuna Prasad had not been terminated at any point of time, as such after his death the tenancy right devolved upon the legal heirs (petitioners and respondent No. 6) and they became tenants within the meaning of Section 3 (a) of the Act and since they continued to remain in occupation, the application under Section 16 (5) of the Act was maintainable. It has also been argued on behalf of the petitioner that the substitution application moved by the petitioners and respondent No. 6 was rejected by the R.C. and E.O. on untenable grounds and in arty view of the matter as the said order was not open to revision the petitioner could not be made remedyless by saying on one hand that the substitution application was not maintainable and on the other hand by rejecting the petitioners' application of review on the ground of the same being not maintainable.