# Pramod Kumar Maheshwari & Anr v. Rent Control & Evicition Officer, Lalitpur & Ors

- **Citation:** (2020) 6 ILRA 875
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-30
- **Case number:** WRIT A No. 6333 of 2018
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-maheshwari-anr-v-rent-control-evicition-officer-lalitpur-ors-45813
- **Pages:** 6

## Headnote

A. Civil Law - Rent Control and Eviction -
Cancellation of Allotment - U.P. Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972: Section 15, 16,
18(3) - After setting aside the order of
allotment, the landlord should be put
back in possession.

The Hon'ble Court held that there is no
material irregularity or jurisdictional error
committed by Rent Control and Eviction
Officer, who by the impugned order dated
29.03.2011, allowed application u/s 18(3) of
respondent no. 2 and held that Hon'ble High
Court while dismissing the earlier writ petitions
(against
the
orders
which
upheld
the
cancellation
of
allotment
and
recorded
respondent no. 2 and 3 as owners) recorded
that Late Durga Devi was not the owner and
landlord of the shop, therefore, the petitioners
who are the heirs of Smt. Durga Devi are not
entitled to get the possession of the shop,
rather the respondent nos. 2 and 3 are
entitled to the possession being the owner and
landlord of the property. (Para 12, 18)

Writ Petition dismissed. (E-4)

Precedent followed:

## Text

6 All. Pramod Kumar Maheshwari & Anr. Vs. Rent Control & Eviction Officer, Lalitpur & Ors. 875
referred to as "Rules, 2001"). The
aforesaid Rules are not applicable to all
petitioners except Petitioners-1 and 2.

58. In the present case since
selection and appointments have already
been made, I do not find that the same can
be undone at this stage after almost 17
years.

59. In the circumstances, I do not
find that petitioners are entitled for any
relief.
Writ
petition
is
accordingly
dismissed.

60. Interim order, if any, stands
vacated.
----------
(2020)06ILR A875
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 6333 of 2018

Pramod Kumar Maheshwari & Anr.
 ...Petitioners
Versus

Rent Control & Evicition Officer, Lalitpur
& Ors. ...Respondents

Counsel for the Petitioners:
Sri Manish Kumar Jain, Sri Ramendra
Singh, Sri P.K. Jain

Counsel for the Respondents:
C.S.C., Sri A.K. Maheshwari(In Person),
Sri Parmendra Singh, Sri B.P.Singh

A. Civil Law - Rent Control and Eviction -
Cancellation of Allotment - U.P. Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972: Section 15, 16,
18(3) - After setting aside the order of
allotment, the landlord should be put
back in possession.

The Hon'ble Court held that there is no
material irregularity or jurisdictional error
committed by Rent Control and Eviction
Officer, who by the impugned order dated
29.03.2011, allowed application u/s 18(3) of
respondent no. 2 and held that Hon'ble High
Court while dismissing the earlier writ petitions
(against
the
orders
which
upheld
the
cancellation
of
allotment
and
recorded
respondent no. 2 and 3 as owners) recorded
that Late Durga Devi was not the owner and
landlord of the shop, therefore, the petitioners
who are the heirs of Smt. Durga Devi are not
entitled to get the possession of the shop,
rather the respondent nos. 2 and 3 are
entitled to the possession being the owner and
landlord of the property. (Para 12, 18)

Writ Petition dismissed. (E-4)

Precedent followed:

1. Gauesh Chandra Gupta Vs Prescribed
Authority, 1990 (2) AWC 1455 (Para 19)

Petition
challenges
orders
dated
29.03.2011 and 07.02.2018, passed by
Rent
Control
and
Eviction
Officer,
Lalitpur and Additional District Judge
(FTC-II), Lalitpur.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri P.K. Jain, learned
Senior Counsel assisted by Sri Manish
Kumar Jain, learned counsel for the
petitioners, respondent No. 2- Sri A.K.
Maheshwari
(in
person)
and
Sri
Parmendra Singh, learned counsel for the
respondent No. 3.

2. The petitioner by means of the
present writ petition has assailed the order
dated 29.3.2011 passed by Rent Control
and Eviction Officer, Lalitpur in Case No.
94/1979 wherein application of the
respondent
No.
2
(Ashok
Kumar
876 INDIAN LAW REPORTS ALLAHABAD SERIES
Maheshwari) under Section 18 (3) of U.P.
Act No. 13 of 1972 has been allowed and
the order dated 7.2.2018 passed by
Additional
District
Judge
(FTC-II),
Lalitpur in Rent Control Revision No. 11
of 2011 affirming the order of the Rent
Control and Eviction Officer, Lalitpur
dated
29.3.2011.

3. Brief facts of the case are that one
Sukhpal Maheshwari was the owner of
the shop No. 48/4, Subhaspura, Lalitpur
(hereinafter referred as 'shop'). He had
two
sons
namely
Ashok
Kumar
Maheshwari-respondent
No.
2
and
Prakash Narayan Maheshwari-respondent
No. 3.

4. It appears that one Shripat s/o
Jujhar Singh was the tenant of the shop
owned by Sukhpal Maheshwari . He
submitted an application to the Rent
Control and Eviction Officer, Lalitpur
that he would vacate the disputed shop on
30.6.1979. On the said application, the
Rent
Control
and
Eviction
Officer
registered Case No. 94 of 1979 under
Section 16 of U.P. Act No. 13 of 1972
(hereinafter referred as 'Act,1972') and
sought a report from Rent Control
Inspector. The Rent Control Inspector
submitted a report on 28.4.1979 that the
shop
in
question
is
vacant,
and
accordingly, the vacancy can be declared
and the shop can be allotted. The Rent
Control and Eviction Officer, Lalitpur
after obtaining report of Rent Control
Inspector
vide
order
dt.
30.4.1979
declared the vacancy for allotment of
shop.

5. It seems that respondent No. 4
(Anil Kumar Alya) on 27.4.1979 filed an
application in Misc. Case No. 94 of 1979
for allotment of the shop. On the said
application, One Smt. Durga Devi w/o
Kailash Narayan Maheshwari filed an
application on 27.4.1979 before the Rent
Control and Eviction Officer, Lalitpur
giving consent for the allotment of shop
to the respondent No. 4. Thereafter, the
shop was allotted to respondent No. 4 by
the order dated 27.5.1979 of Rent Control
and
Eviction
Officer,
Lalitpur.
Accordingly, the allotment order in
prescribed form was issued in favour of
respondent No. 4.

6. The respondent No. 2 filed an
application under Section 15 and 16 of
the Act,1972 in Misc. Case No. 94 of
1979 praying for cancellation of allotment
order dated 21.5.1979 in favour of
respondent No. 4.

7. The Rent Control and Eviction
Officer, Lalitpur by order dt. 30.6.2007
set aside the order of allotment dated
21.5.1979 in favour of respondent No. 4 .
The Rent Control Officer held that
Sukhpal Maheshwari was the owner of
the shop. After his death, there was
family partition in which shop fell in the
share of respondent No. 2 (Ashok Kumar
Maheshwari) and respondent No. 3
(Prakash Narayan Maheshwari). Thus, the
respondent Nos. 2 and 3 are the owner
and landlord of the shop.

8. The order dated 30.6.2007 of
Rent Control and Eviction Officer,
Lalitpur was challenged by Smt. Durga
Devi as well as respondent No. 4 in Rent
Control Revision No. 32 of 2007 and 33
of 2007 respectively. The Additional
District Judge, Lalitpur by judgment and
order dated 25.5.2010 dismissed both the
revisions.

9. The respondent No. 4 thereafter
preferred Writ A No. 42276 of 2010 (Anil
6 All. Pramod Kumar Maheshwari & Anr. Vs. Rent Control & Eviction Officer, Lalitpur & Ors. 877
Kumar
Alya
Vs.
Ashok
Kumar
Maheshwari and others) against the order
of the Revisional Court dated 25.5.2010
and order of Rent Control and Eviction
Officer dated 30.6.2007 before this court.
The writ petition was dismissed by this
Court by the judgement and order dated
22.7.2010. The relevant extract of the
aforesaid judgement is extracted herein:-

"It is urged that the courts
below did not consider the fact that the
disputed property was bought by Smt.
Durga Devi, who was the owner and
landlord
in
an
auction
and
the
application for allotment was made only
with respect to that property.

Both the courts below have
gone into this aspect in detail and after
analyzing the evidence, including the
admission of Durga Devi in a partition
suit no. 137 of 1999 and the sale deed in
the alleged auction, have returned a
finding of fact that she was never the
owner or landlord of the premises and the
entire exercise in collusion with her
husband was illegal and fraudulent.
Counsel for the petitioner has failed to
point out any error of law. Thus, the
argument cannot be accepted.

It is also urged that the
allotment was made way back in 1979
and therefore the application for recall
was not maintainable and the decision of
the Apex Court in the case of Madhu
Gopal Vs. VI Additional District Judge
[1988 (4) SCC 644) do no apply.

No doubt there was delay, but
the courts below have considered the
facts and found that the landlord was
unaware of the proceedings. Assuming
there was delay, but fraud can be
challenged at any stage as fraudulent
actions are void and thus has no
limitation.

No other point has been urged.

For the reasons above, this is
not a fit case for interference under
Article 226 of the Constitution of India.
Rejected. "

10. Smt. Durga Devi also preferred
Writ A No. 51341 of 2010 (Smt. Durga
Devi Vs. Ashok Kumar Maheshwari and
others) against the order dated 30.6.2007
and 25.5.2010. It appears that during the
pendency of aforesaid writ petition, Smt.
Durga Devi died. Therefore, her heirs
were substituted. This Court by the
judgement and order dated 22.7.2020
dismissed the aforesaid writ petition on
the ground that as the two orders
challenged in the said writ petition have
been challenged by respondent No. 4 in
Writ A No. 42276 of 2010 (Anil Kumar
Alya Vs. Ashok Kumar Maheshwari and
others) and as those two orders have been
upheld by this Court, therefore, it is not
proper for this Court to take a different
view.

11. After dismissal of the aforesaid
writ petitions, the respondent No. 2 filed
an application under Section 18 (3) of
U.P. Act No. 13 of 1972 in Case No.
94/1979 registered as Misc. Case No. 1 of
2005 praying for recovery of possession
of the shop.

12. The Rent Control and Eviction
Officer, Lalitpur by the order dated
29.3.2011 after hearing the counsel for
the parties allowed the application of
respondent no.2. The Rent Control and
878 INDIAN LAW REPORTS ALLAHABAD SERIES
Eviction Officer, Lalitpur held that this
court while dismissing the writ petitions
against the order dated 30.6.2007 of Rent
Control and Eviction Officer and order dt.
25.05.2010 dismissing the revision of the
petitioner held that late Durga Devi was
not the owner and landlord of the shop,
therefore, the petitioners who are the heirs
of Smt. Durga Devi are not entitled to get
the possession of the shop. It further held
that since the order dated 30.6.2007
cancelling the allotment of disputed shop
in favour of respondent No. 4 was passed
on the application of respondent No. 2,
consequently, the respondent

13. The petitioner preferred Rent
control Revision NO. 11 of 2011 against
the order of the Rent Control and Eviction
Officer, Lalitpur dated 29.3.2011 which
was dismissed by the revisional court on
07.02.2018.

14. Challenging the aforesaid
orders, learned Senior Counsel contended
that according to Section 18 (3) of U.P.
Act No. 13 of 1972 after the cancellation
of allotment order, the property in
question is to be restored back to the
person who was in the possession of the
shop before allotment in favour of
respondent no.4. He contends that since
Smt. Durga Devi was in possession of the
shop, therefore, the petitioners being legal
heirs of Smt. Durga Devi are entitled to
the possession of the shop after the
cancellation of allotment order. Thus, the
court
below
has
misinterpreted
Section18(3) of Act,1972 in allowing the
application of the Respondent No.2.

15. Per contra, respondent No. 2
(Ashok
Kumar
Maheshwari),
who
appeared in person, submits that the Rent
Control and Eviction Officer, Lalitpur
while cancelling the allotment order in
favour of respondent No. 4 has held that
Smt. Durga Devi was not the owner and
landlord of the disputed shop and
respondent Nos. 2 and 3 are the joint
owner of the shop which finding has been
affirmed by this Court in two writ
petitions
referred
above
and
the
judgements of this Court in the aforesaid
two writ petitions have attained finality.
Accordingly,
he
submits
that
the
respondent Nos. 2 and 3 are joint owner
of the shop, therefore, the Rent Control
and
Eviction
Officer,
Lalitpur
has
correctly allowed the application and
directed the delivery of possession of the
disputed shop to the respondent Nos. 2
and 3. He further submits that the revision
court after appreciating the law correctly
dismissed the revision. Thus, he submits
that finding of the Rent Control and
Eviction Officer as well as revisional
court
are
based
upon
the
proper
appreciation of the fact and evidence on
record, and as such are not liable to be
interfered with by this court in exercise of
its power under Article 226 of the
Constitution of India being finding of
fact.

16. I have considered the rival
submissions of parties and perused the
record.

17. The facts as emerge out from the
record are that the allotment of the
disputed shop in favour of the respondent
No. 4 was made by the Rent Control and
Eviction Officer, Lalitpur on the consent
of Smt. Durga Devi. The allotment of
respondent No. 4 was challenged by the
respondent No. 2 contending inter-alia
that Smt. Durga Devi was not the owner
of the disputed shop and could not give
consent for allotment of shop and the
6 All. Pramod Kumar Maheshwari & Anr. Vs. Rent Control & Eviction Officer, Lalitpur & Ors. 879
allotment of the shop was obtained by
playing fraud by the respondent No. 4 in
collusion with Smt. Durga Devi.

18. The application of respondent
No. 2 for cancellation of allotment in
favour of respondent No. 4 was allowed
by Rent Control and Eviction Officer,
Lalitpur by the order dated 30.6.2007
wherein finding on the basis of material
and evidence on record had been recorded
that Smt. Durga Devi was not the owner
of the disputed shop and the respondent
Nos. 2 and 3 are the joint owner of the
disputed shop. The aforesaid finding has
been affirmed by the Revisional Court as
well as by this Court in the Writ A No.
51341 of 2010 and Writ A No. 42276 of
2010. The judgment of this Court in the
aforesaid two writ petitions have attained
finality as they have not been assailed by
the petitioners before the Apex Court.
Accordingly, the finding of Rent Control
and Eviction Officer, Lalitpur in the order
dated 30.6.2007 that Smt. Durga Devi
was not the owner of the disputed shop in
question and the respondent Nos. 2 and 3
are the joint owner of the disputed shop is
binding upon the parties. Therefore, Rent
Control and Eviction Officer, Lalitpur has
rightly come to the conclusion that the
petitioner being legal heirs of late Smt.
Durga Devi have no right to seek
possession of the disputed shop rather the
respondent Nos. 2 and 3 are entitled to the
possession being the owner and landlord
of the property. The Revisional Court
after appreciating the facts and evidence
on record found that the Rent Control and
Eviction
Officer,
Lalitpur
has
not
committed any material irregularity or
jurisdictional error in issuing direction for
delivery of possession of shop to the
respondent no.2. Consequently, it found
no merit in the revision and dismissed it
by order dt. 07.02.2018.

19. This court in the case of Gauesh
Chandra
Gupta
Vs.
Prescribed
Authority, 1990(2) AWC 1455 has held
that after setting aside the order of
allotment, the landlord should be put back
in possession. Paragraph 5 of the
judgment is extracted hereinbelow:

"The short question which
requires consideration is as to the right
of the landlady to be put back in
possession. The legal position does not
appear in doubt and is quite clear that
after the setting aside of the order of
notification of vacancy and that of the
allotment in favour of respondent, it is
necessary that the landlady be put back
in possession. The person who got
possession in pursuance of the order of
allotment has to deliver back the
possession to the landlord after the
setting aside of the order of allotmentSection 18 (3) of the Act is clear in this
regard. It provides that where the order
under Section 16 of the Act is rescinded,
the District Magistrate shall place the
parties back in the position which they
would have occupied but for such
allotment and may for that purpose use
or caused to be used such force as may
be necessary."

20. In view of the aforesaid
discussion, this Court finds no illegality
in the orders impugned in the writ petition
as findings recorded therein are finding of
fact based upon the proper appreciation of
material
and
evidence
on
record.
Consequently, the writ petition lacks
merit and is dismissed with no orders as
to cost.
----------
880 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A880
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2020

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 13933 of 2019
&
WRIT A 13936 of 2019

M/s Sangam Travels & Ors. ...Petitioners
Versus
The State of U.P. & Anr. ...Respondents

A. Civil Law - Motor Vehicles - Fixation
of age - Motor Vehicles Act, 1988:
Sections 3, 28, 59, 64, 65, 95, 96, 107,
111, 138, 176, 213; General Clauses Act,
1897: Section 21; U.P. Motor Vehicles
Rules, 1998: Rule 222(D); U.P. Motor
Vehicles (Twenty Sixth Amendment)
Rules, 2019 - Petitioners are aggrieved by
reduction of age limit of public service vehicles
from 15 years to 10 years which has been
introduced by the State Government in the
Rule 222(D) of Rules, 1998 by Amending
Rules, 2019, whereas the age limit of
educational institutional buses has been fixed
as 15 years from the date of original
registration.

B.
The
classification of
the
two
categories of vehicles is a reasonable
and valid classification. There is no
arbitrariness or discrimination and is
not hit by Article 14 of Constitution
of India - Anurudh Kumar and Others Vs
State of U.P. & Others, 2019 (9) ADJ 79
(DB) (Paras 5 to 7) - The categorisation is
for the reason that the two categories of
vehicle form a separate class and cannot
be equated. The use and running of
educational institutional vehicles is very
limited whereas other private/commercial
or contract vehicles have a very wide and
expensive use resulting in their speedy
wear and tear. Therefore, the life of the
two
categories
of
vehicle
has
been
provided differently.
The submission that nature of activity for
which petitioners' buses are being used is
similar to the use of school buses owned by
the schools, as the petitioners' buses are
engaged in transporting the students from
their homes to school and back to their homes
and as such are not different from educational
institution vehicles/buses cannot be accepted
for the simple reason that the educational
institutional bus has been defined U/S. 2(11)
of the Motor Vehicles Act and the nature of
activity would not bring them within the
purview of educational institutional buses as
defined under the Act. (Para 8, 9, 11, 15)

C. Competence of State government to
amend Rule 222(D) of Rules, 1998 -
State Transport Authority is empowered
to fix the age limit of the vehicle - It is a
well-established proposition of law that
where a specific power is conferred
without prejudice to the generality of
the general powers already specified,
the particular power is only illustrative
and does not in any way restrict the
general power. (Para 21, 26)

Section 65(1) puts only rider upon the State
Government not to make rules with respect to
matters specified in section 64. Thus, under
section 65(1) of the Act, 1988, the State
Government is free to make any rule for the
purpose of carrying into effect the provisions
of Chapter VI of the Act 1988 except the
matters specified in section 64. Further, the
power under section 65(1) is general power
conferred upon the State Government to make
rules and thus, the source of power making
rules is derived from sub-section 1 of section
65
and
sub-section
2
merely
provides
illustration for the general power conferred by
sub-section 1 as sub-section 2 of section 65 of
the Act, 1988 commences with the words
'without prejudice to the generality of the
foregoing powers'. It is manifest that subsection 2 of section 65 of the Act, 1988
confers no such fresh powers but is merely
illustrative of the general powers conferred by
sub-section 1 of section 65. (Para 25, 27)

Writ Petition dismissed. (E-4)

Precedent
followed: