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HIGH COURT OF ALLAHABAD
Sudhir Narain, J.
J. S. Hitkari – Appellants
Versus
Ashok Kumar Shukla - Respondents
C.M.W.P. No. 25870 of 1990
Decided on : Mar 29, 1996
RENT CONTROL AND EVICTION ACT - REVIEW OF ALLOTMENT ORDER - LIMITATION - APPLICATION FOR REVIEW FILED BY LANDLORD NOT IN ACTUAL PHYSICAL OCCUPATION - LIMITATION OF 7 DAYS NOT APPLICABLE - APPLICATION FILED WITHIN 30 DAYS OF KNOWLEDGE OF ORDER - VALID.
Fact of the Case:
Petitioner, owner of a property, challenged the allotment order passed in favor of Respondent No. 1, alleging that he was not served with any notice and the allotment was obtained fraudulently. The Rent Control and Eviction Officer rejected the petitioner's application for review, holding that it was barred by limitation. The petitioner filed a revision, which was also dismissed.
Finding of the Court:
The court held that the limitation of 7 days for filing an application for review under Section 16(5) of the Act applies only to persons who were in actual physical occupation of the premises and not to landlords who were not in actual physical occupation. The court further held that the petitioner had filed the application for review within 30 days of the date he came to know of the allotment order, which was within the limitation period.
Issues: 1. Whether the application for review filed by the petitioner was barred by limitation. 2. Whether the petitioner was served with a notice before declaration of vacancy and thereafter again a notice was served upon him as provided under Rule 9 (2) of the Rules framed under the Act.
Ratio Decidendi: 1. The court relied on the decisions in Bharat Lal Jaiswal v. IXth Additional District and Sessions Judge, Allahabad and others, and Madhu Gupta v. VIth Additional District Judge, Agra and others, to hold that the limitation of 7 days for filing an application for review under Section 16(5) of the Act applies only to persons who were in actual physical occupation of the premises and not to landlords who were not in actual physical occupation. 2. The court held that the petitioner had filed the application for review within 30 days of the date he came to know of the allotment order, which was within the limitation period.
Final Decision: The court allowed the writ petition, quashed the orders of the Rent Control and Eviction Officer and the revisional authority, and directed the Rent Control and Eviction Officer to decide the application afresh on merits after giving an opportunity of hearing and leading evidence to the parties.
Sudhir Narain. J.
1. THE petitioner has sought a writ of certiorari for quashing the order dated 19.1.1989, passed by Rent Control and Eviction Officer, rejecting the application of the petitioner filed under Section 16 (5) of U. P. Act No. 13 of 1972 and the order dated 4.8.1990, passed by respondent No. 3, dismissing the revision against the aforesaid order.
2. THE petitioner is owner of premises No. 7-156-C, Swarup Nagar, Kanpur. He was in service and was posted at Lucknow. One Ajai Tandon was occupying the disputed accommodation. Respondent No. 1 filed an application for allotment. THE Rent Control and Eviction Officer called for a report from the Rent Control Inspector. THE Rent Control Inspector took the statement of Ajai Kumar Tandon that he was likely to vacate the accommodation. He reported that the accommodation can be treated as vacant. THE Rent Control and Eviction Officer declared the vacancy by order dated 17.10.1985 and allotted it to respondent No. 1 on 30.10.1985. THE version of the petitioner was that he had no knowledge regarding the allotment order passed in favour of respondent No. 1 as he was posted at Lucknow and was residing there. He filed suit No. 575 of 1986 for possession against Ajai Kumar Tandon on the allegation that he was a licensee and his licence was revoked and he was entitled to its possession. During the pendency of the suit, one Mahesh Chandra Mishra also filed an application for allotment of the premises on 27th May, 1986. On his application, the Rent Control and Eviction Officer called for a report from the Rent Control Inspector on 18.9.1986. THE Rent Control Inspector submitted a report that the accommodation in question is vacant.
On 10.12.1986, the petitioner filed an objection before the Rent Control and Eviction Officer that Ajai Kumar Tandon was living as licensee and not as tenant and he has filed suit No. 575 of 1986 for possession against him and the matter is subjudice before the Court, the accommodation should not be treated as vacant for the purpose of passing allotment order. The Rent Control and Eviction Officer, however, declared the accommodation in question as vacant by his order dated 9.4.1987 and directed to issue notice to the landlord. The objection of the petitioner that it should not be declared as vacant was rejected by him by order dated 19.6.1987. On 12.6.1987, he passed an order of allotment in favour of one Vishnu Kant Agarwal. In the order, it was stated that though the landlord has taken time for filing release application but he has not filed any release application and there was no other applicant for allotment and Vishnu Kant Agarwal is entitled for allotment.
3. ON 18.7.1987, the petitioner filed an application for release of the accommodation in question. ON his application, the Rent Control and Eviction Officer directed the Rent Control Inspector to submit a report. In the meantime, it appears that respondent No. 1 having come to know that allotment order has been passed in favour of Vishnu Kant Agarwal on 12.6.1987, filed an application for its cancellation. It appears that on his application, the Rent Control and Eviction Officer by his order dated 2.9.1987 recalled the order dated 12th June, 1987 whereby he had allotted the accommodation in favour of Vishnu Kant Agarwal and further consigned the release application filed by the petitioner on 18.7.1987. It was observed in the order that he has perused the record of case No. 75 of 1985 whereby the accommodation had already been allotted on 30.10.1985 and it was not necessary to take any further proceedings in respect of the release or allotment. The papers were consigned. In this order dated 2.9.1987, there is nothing to show that the order was passed in presence of the petitioner or his counsel.
4. ON 14.9.1987, the petitioner filed an application for recall of the order dated 30.10.1985 on the allegation that the allotment order was obtained fraudulently concealing the material facts and
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