RAJENDRA KUMAR Vs. DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Consti tution of India challenging the order of the District Judge, Meerut, dated 31-1-1978 in proceedings under the U. P. Urban Building (Regulation of Let ting, Rent and Eviction) Act, 1972, U.P. Act XIII of 1972 (hereinafter referred to-as the Act). The property in dispute is shop No. 68 situate in Kagzi Bazar, Meerut. One Brahma Prakasb, respondent No. 2 is the owner of the said shop. THIS shop had been let out to Darshan Lal, respondent No. 3. It was alleged by various persons applying for allotment before the Rent Control and Eviction Officer that the said shop had been vacated by Darshan Lal on 31st March, 1976. On the application for allotment, the Rent Control Inspector inspected the accommodation and reported that Shri Darshan Lal had vacated the premises and had handed it over to Om Prakash, father of Indu Prakash, respondent No. 4. On 16th June, 1976, Darshan Lal, the tenant filed his objection before the Rent Control and Eviction Officer stating therein that he had not vacated the shop. The landlord also moved an application on the same date stating therein that Sri Darshan Lal had not vacated the shop. It appears that the Rent Control Inspector again inspected the shop. The Rent Control and Eviction Officer ultimately by his order dated 22-11-1976 declared the shop as vacant. The landlord filed a revision No. 336 of 1977 In the Court of District Judge, Meerut against the order dated 22-11-1976 declaring the shop as vacant. THIS revision was ultimately rejected on 17-11-1977 on the ground that the revision was not maintainable and the order in regard to vacancy could be challenged when the revision is actually filed against the allotment order. When the revision failed, the landlord moved an application before the Rent Control and Eviction Officer under Section 14 of the Act to the effect that, in fact, Darshan Lal and Indu Prakash were occupying the shop with the consent of the landlord prior to the 5th of July, 1976 when the U. P. Act 28 of 1976 came into effect, and as such requested for regulari-sation of the said possession. THIS application was moved on 12th January, 1977. THIS application of the landlord was ulimately rejected by an order dated 7-12-1977 and the shop in dispute was allotted to the petitioner Rajendra Kumar. Aggrieved by the order dated 7th December, 1977, three revisions were filed before the District Judge Meerut; one by Darshan Lal and Indu Prakash the second by landlord Brahma Prakash and third by Ramesh Chandra. The revision filed by Ramesh Chandra was withdrawn. The other two revisions were decided by a common judgment dated 31st January, 1978 by the District Judge. The learned District Judge was of the view that Darshan Lal and Indu Prakash were in possession from before 5th July, 1976, when the U. P. Act 28 of 1976 came into force. Therefore, the possession of these sitting tenants was bound to be regularised under Section 14 of Act XIII of 1972 and the shop could not be allotted to the petitioner. He accordingly, allowed the revision and set aside the allotment order. THIS was decided on 31st January, 1978. Aggrieved by this judgment, the petitioner has filed the present petition under Article 226 of the Constitution of India. Learned counsel for the petitioner has only made one submission before me. His contention is that the District Judge has acted illegally and with material irregularity in the exercise of his jurisdiction in interfering with the finding of fact in regard to the vacancy arrived at by the Prescribed Auth ority and as such, the order was liable to be quashed. His contention in effect was that the powers given to the District Judge under Section 18 of the Act are analogous to Section 115 of Civil Procedure Code, and as such, the learned District Judge could not have interfered with the finding of fact, however, erroneous the decision might have been. Section 18 of the Act empowers a person aggrieved by an order of the Prescribed Authority to prefer a revision before the District Judge on the ground that he has exercised the jurisdiction not vested in him by law, has failed to exercise the jurisdiction so vested in him by law and had acted in the exercise of jurisdiction, illegally or with material irregularity. In Chidda Singh v. 1st Additional District Judge 1979 U. P. Rent Control Gases 65, it has been held that Section 18 of the Act is in parimateria with Section 115 of Civil Procedure Code. It has been further held that this section cannot be applied for correcting either a mistake of law or fact in which the question of jurisdiction is not involved. While considering the scope of Section 115 of Civil Procedure Code, the Supreme Court in Chaube Jagdish Prasad and others v. Ganga Prasad Chaturvedi 1959 S. C. 492, held that where it was necessary to decide a fact on which the jurisdiction of the Court depended then the decision of that jurisdictional fact could be a subject matter of revision within Section 115 Civil Procedure Code. It held: "Thus, if a subordinate Court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But if on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under Section 115 C. P. C. be-. " comes operative." In the case of Supreme Court the jurisdictional fact which was sought to be decided was the date of construction of the accommodation. On this fact depended the jurisdiction of the subordinate Court to pass final orders on the application. The High Court interfered in the determination of the date of the construction of the accommodation. The said interference was challenged in the Supreme Court and it was held that under Section 115 Civil Procedure Code, the High Court could decide the fact in regard to the date of construction as that was a jurisdictional fact. Under the provi sions of the Act an allotment order could only be passed, if it is found by the Prescribed Authority that the building has fallen vacant. The fact as to whether the building had fallen vacant or not, is a jurisdictional fact. On the determination of this fact the allotment as well as the order of regularisation would depend. If the property was not vacant and was occu pied by certain persons, prior to 5th July, 1976, then no allotment order could be passed and the occupant had to be regularised under Section 14 of the Act. In the instant case, the Rent Control and Eviction Officer by his order dated 22-11-1976 declared the shop as vacant. The landlord filed a revision against this order but it was rejected on the ground as being not main tainable. The property was therefore allotted to the petitioner and in a revision against the allotment order, the landlord again challenged the finding in regard to vacancy recorded by the Prescribed Authority. In my opinion the question as to whether the shop was vacant or not, was a jurisdictional fact and it was open to the revisional authority, namely, the District Judge to redetermine this fact in case the Prescribed Authority had acted illegally and with material irregularity in the exercise of his jurisdiction in determining the said fact. From the order of the District Judge, it is apparent that the Prescribed Authority has not considered at all the material evidence on record before arriving at the finding in regard to vacancy. The District Judge has relied upon a number of affidavits, namely, affidavits of Ramesh Chand, Ram Saran Das, Mahendra Kumar, Rajendra Kumar, Imam Uddin and Babar AH. All these affidavits were on record, but the Prescribed Autho rity had not considered these documents at all. In the circumstances, the Prescribed Authority had acted with material irregularity in the exercise of his jurisdiction and as such, the District Judge was fully justified In interfering with the finding in regard to vacancy under Section 115, Civil Procedure Code. The District Judge having found that the shop in dispute was not vacant and that Darshan Lal and Indu Prakash were in possession of the said shop, with the consent of the landlord before 5th of July, 1976, the application for regularisation was rightly allowed and the allotment order rightly set aside. In my opinion the learned District Judge has acted within the scope of the powers conferred upon him under Section 18 of the Act. In the circumstances, the submission made by the learned counsel has no substance. In the result, the petition fails and is, accordingly, dismissed, are directed to bear their own costs.