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1975 Supreme(All) 481
IN THE HIGH COURT OF ALLAHABAD
HARI SWARUP, J.
Santosh Kumar Tikmani - Appellant
Versus
Jafar Ali, District Magistrate And Others - Respondents
Civil Miscellaneous Writ Petition No. 7007 of 1974
Decided On : 10-04-1975
A landlord has no right to demolish a building which is in the occupation of another, even if the allotment order in favor of the occupant is invalid. The landlord's right to property is not absolute and is subject to the rights of others and the provisions of law.
Headnote:
U.P. (Temporary) Control of Rent and Eviction Act - Allotment Order - Validity - Landlord's Right to Demolish Building - Article 19(1)(f) of the Constitution - Interpretation.
Fact of the Case:
The petitioner, a landlord, challenged the validity of an allotment order passed under the U.P. (Temporary) Control of Rent and Eviction Act, 1970, in favor of the Excise Inspector for the purpose of vending liquor. The petitioner had obtained an ex-parte decree against the previous tenants, who had no subsisting interest in the property, and had demolished the building after obtaining police aid. The District Magistrate had passed an order directing the police to protect the vending of liquor in the shop from the petitioner's high-handed action.
Finding of the Court:
The Court held that the petitioner's conduct in demolishing the building and obtaining an ex-parte decree against the previous tenants was illegitimate and fraudulent. The allotment order, though not communicated to the petitioner, was not invalid as the petitioner had full knowledge of it and the allottee had entered into possession. The petitioner had no right to destroy the property, which was in the occupation of another, and his action amounted to an illegitimate act. The District Magistrate's order was justified in restoring the status quo ante and protecting the vending of liquor in the shop.
Issues: 1. Whether the allotment order passed in favor of the Excise Inspector was valid? 2. Whether the petitioner had the right to demolish the building after obtaining an ex-parte decree against the previous tenants? 3. Whether the District Magistrate's order directing the police to protect the vending of liquor in the shop was justified?
Ratio Decidendi: 1. The allotment order was not invalid as the petitioner had full knowledge of it and the allottee had entered into possession. The petitioner had not applied for the release of the property and had not objected to the occupation of the shop by the Excise Contractor. 2. The petitioner had no right to destroy the property, which was in the occupation of another. The petitioner's action amounted to an illegitimate act, and he could not approach the Court for relief to validate his high-handed action. 3. The District Magistrate's order was justified in restoring the status quo ante and protecting the vending of liquor in the shop.
Final Decision: The petition was dismissed with costs.
Hari Swarup, J.
This petition has been filed for quashing an order of allotment passed u/s 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act (hereinafter called the Act). On 29-9-70 in favour of the Excise Inspector and an order of the District Magistrate dated 22-10-74 by which he requested the Superintendent of Police Mainpuri to provide police assistance for restoring and maintaining the status quo ante as it existed before 10-9-74 and to restrain the present Petitioner from interfering with the possession of the excise licensee running the liquor shop. The order also directed that the F.I.R. against the Petitioner and others lodged on 10-9-74 at police station Shikohabad should be proceeded with and the investigation completed without delay. A Writ in the nature of Mandamus is also claimed to restrain the Respondent from interfering with the rights of the Petitioner and for restoration to him of the possession over the shop in dispute in the form as it stood in 1974.
2. The facts giving rise to the present petition are as under:
There is a shop in which the business of vending liquor was carried on by the licencee under the Excise Act. The people of the locality did not like it and some residents including father of the present Petitioner sent a telegram to the District Magistrate on 4th April 1970 that the shop may not be allotted to the next licencee. The licence for vend of liquor commences from 1st of April every year and ends on March 31 next year. One Pearey Lal Arora was the tenant of this shop and was running the liquor business in the year 1969-70; for this year he was the liencee. Since April 1970 licence was given to Girraj Saran Singh for one year. In subsequent year also he being the highest bidder was given licence and he continued to carry on the sale in the shop in dispute. On 12-5-70 the present Petitioner purchased this building and on 15th July 1970 filed a suit in the court of the Munsif, Shikohabad against Pearey Lal Arora whose contract had already come to an end. The Petitioner also impleaded Girraj Singh alleging him to be the sub-tenant of the shop and made this alleged sub-tenancy as a ground for eviction of Pearey Lal Arora.
3. On 21-9-1970 the Rent Control and Eviction Officer passed an allotment order u/s 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act allotting the shop in the name of the Excise Inspector for the purpose of the shop being used for vend of liquor by the licencee. u/s 7-C of the Act, rent was also deposited on behalf of the Excise Inspector. On 6-5-1972 the Petitioner filed an objection in 7-C proceedings Before this on 9-12-1970 Girraj Saran Singh had filed a written statement in the suit and had brought out the fact in the written statement that allotment in the shop had been made in favour of the Excise Inspector and Girraj Saran Singh was carrying on business of vending liquor in this shop as tenant. Inspite of this fact being brought to the notice of the Petitioner he did not get the plaint amended to seek relief against the Excise Inspector or against Girraj Saran Singh in his capacity as a licencee on behalf of the Excise Inspector or as a person claiming to occupy the shop in his own right as tenant. After 31st March 1972 the licence in favour of Girraj Saran Singh also came to an end and Ram Gopal became the licencee. He continued vending of liquor in this shop since obtaining of the licence. The suit, however, continued as it was fired, and the present Petitioner obtained an ex-parte decree on 16-11-1973 against Pearey Lal Arora and Girraj Saran Singh.
4. The decree was sought to be executed as against the judgment debtors in the decree even though the shop was in the occupation of Ram Gopal and he was carrying on business under a licence from the Government. On 23-8-1974 the decree was sought to be executed for delivery of possession as against the judgment-debtors, but it was not actually executed. An application was filed in the Execut
