# Smt. Sarvati Devi v. The 8th A.D.J., Agra and others

- **Citation:** (2000) 3 ILRA 24
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sarvati-devi-v-the-8th-a-d-j-agra-and-others-39477
- **Pages:** 5

## Text

INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
24
Concscientious Legis ex legi Pendet which
connotes that conscience of a Judge in law
court depends upon law. We have brought
to bear the aforesaid legal maxim because
a contention has been raised by Sri
Naithani that the courts should bear in
mind
the
public
sentiments
while
determining the petitioners' prayer for bail.
Since the petitioners have prayed for
quashing of the F.I.R. and other ancillary
relief's which may entail full fledged
hearing, we propose to take up the matter
in the month of July and hence we forbear
from pronouncing upon the merit as to
whether prima facie case under the
relevant provision of the I.P.C. is made out
as it would amount to prejudging the issue.

8. So far as ball is concerned, both
the High Court and the Sessions Judge
have concurrent powers under section 439
Cr.P.C. to deal with the prayer for bail and
in the present fact scenario, the question
that crops up is whether the petitioner will
be allowed by the people of this region to
have their bail application considered in a
judicious atmosphere, if they are relegated
to the Sessions Court for bail? Even
according to Sri Naithani the tempers are
running high in the entire Uttar Khand
region
due
to
publication
of
the
controversial report in 'Aids-Aur-Hum'
published by Sahyog and in the situation
when the entire region is said to be in
fermentation, we feel inclined to entertain
the prayer for interim nail. The question
whether a case is made out is a question,
which has to be determined in the main
petition but in the fact-situation of the
case, we do not bail pending disposal of
the writ petition. It brooks no doubt that
application for bail under section 439
Cr.P.C. is to be decided by a Single Judge
but as stated supra, since relief has been
sought for quashing the F.I.R., the
ancillary relief of bail can decided by a
Division Bench.

It is worthwhile to quip hare that
during the pendency of the writ petition,
the District Magistrate Almora, passed an
order of preventive detention in exercise of
power under sub-section 3 (3) read with
sub sec.(2) of section 3 of National
Security Act, 1980. The said order even
according to Sri Naithani was totally
uncalled for and has been rightly recalled.

Accordingly, it is ordered that the
petitioners 1 to 6 be enlarged on bail on
condition that they with two sureties will
enter into bond in a sum of Rs.20,000/-
each. The bonds and sureties will be
subject to the satisfaction of the C.J.M.
Almora.

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3All] Smt. Sarvati Devi V. The 8th A.D.J., Agra and others
25
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By the Court

1. This writ petition is directed
against the order of allotment dated
16.4.1983 and the order of respondent
No.1 dated 20.1.1984 dismissing the
revision against the said order.

2. The petitioner is owner and
landlady of the house in question situate in
Mohalla Satta, Tehsil Etmadpur, district
Agra. She purchased it from its previous
owner
Satya
Prakash
Kulshrestha,
respondent No.4 by a registered sale-deed
dated 21.3.1983 and was put in possession
as owner of the said house.

3. Her version is that on 16.4.1983
there was a marriage of the son of one
Bhagwan Das in the town of Etmadpur.
She had gone with her entire family to
attend the marriage at the house of
Bhagwan Das after locking the house in
question. She with her family stayed at the
house of Bhagwan Das in that night on
16.4.1983. She along with her family
returned to the house in the next morning,
she found that the locks have been broken
open and Uday Dhiraj, respondent No.3
was in its occupation. The petitioner
requested him to vacate the said house but
he mishandled females and males and
informed her that the house in question has
been allotted in his favour on 16.4.1983
and he was in its possessions in pursuance
to the said order.

4. The petitioner made enquiry from
the office of the Rent Control and Eviction
Officer and the record revealed that
respondent No.3 had filed an application
for allotment on which Rent Control
Inspector submitted a report on 2.4.1983
mentioning
that
Satya
Prakash
Kulshrestha, respondent No.4 was owner
of the property in house. He was in service
outside Agra. The house was locked for 10
years and it appeared to him that it was
vacant. The Rent Control and Eviction
Officer on 6.4.1983, directed that the file
be placed on 15.4.1983. On 15.4.1983 he
passed an order that as no objection was
filed, the application be put up on
16.4.1983.
On
16.4.1983
he
passed
allotment order in favour of respondent
No.3 and on the same day he issued form
B and Form C prescribed in the Rules for
delivery of possession and on the same day
respondent No.3 took the possession of the
disputed house.

5. The petitioner filed an application
for review of the said order under section
16(5) of U.P. Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972
(in short the Act) before the Rent Control
and Eviction Officer. She also filed a
revision against that order. Respondent
No.1 dismissed the revision on 20.1.1984.
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
26
These orders have been challenged in the
present writ petition.

I have heard Sri Prakash Gupta,
learned counsel for the petitioner and Sri
B.D. Mandhayan, learned counsel for the
contesting respondent No.3.

6. The core question is whether there
was
any
vacancy
of
the
disputed
accommodation either in law or on facts.
There is no dispute that Satya Prakash
Kulshrestha, respondent No.4 was owner
of the property. He had sold the property
to the petitioner by a registered sale-deed
dated 21.3.1983, a copy of the sale-deed
has been annexed as Annexure '1' to the
petition. In the sale-deed it is mentioned
that the possession has been delivered to
the petitioner in pursuance to the execution
of the sale deed. The petitioner having
obtained possession, the previous owner
could not be held to be in possession of the
property. The Rent Control and Eviction
Officer had passed the order on the basis
of the report submitted by the Rent Control
Inspector that the house in question had
remained locked for 10years and it should
be treated as vacant and Satya Prakash
Kulshrestha was its owner but he was in
service out side Agra. The Rent Control
Inspector did not give any notice either to
the petitioner or its previous owner
respondent No.4 before inspecting the
disputed house. It was necessary for him to
issue notice under Rule 8(2) of the Rules
framed under the Act before making local
inspection of the building in question.
There is nothing to show that the rent
control Inspector gave any notice to the
owner of the property or made any effort
to give such notice. He is alleged to have
elicited the fact from two persons, namely,
Babu Ram and Rais. Satya Prakash
Kulshrestha had already sold the property
to the petitioner by registered sale-deed
dated 21.3.1983 and there was no occasion
that
Satya
Prakash
Kulshrestha,
its
previous owner would have been in its
occupation.

7. Respondent No.1 took the view
that
Satya
Prakash Kulshrestha, the
previous owner had given an application to
the Rent Control and Eviction Officer for
allotment on 4.1.1983 stating that the
house was vacant and as he himself had
given the application that the house may
be
allotted
to
any
person,
the
accommodation should be treated as
vacant and the previous landlord was not
required any notice to be given. The
contention of the petitioner is that such an
application on the record was a forged
document. It was the duty of the Rent
Control and Eviction Officer to examine
that
the
application
dated
4.3.1983
addressed to Tehsildar was a genuine
application by the landlord. It was
incumbent upon to him notice to such
owner if he wanted to rely upon such
document. A Photostat copy of the
application has been annexed as Annexure
'3' to the writ petition. The application is
of dated 4.3.1983 alleged to have by post
and on 6.4.1983 an order was passed on it
'keep on file'. If any one sends application
by post, it cannot be assumed that such
named person has given application unless
the person who is alleged to have sent the
papers is summoned and enquiry is made
from him. Secondly on 21.3.1983 he had
already sold the property to the petitioner
and the Rent Control Inspector had
submitted a report 2.4.1983. The Rent
Control Inspector did not given any notice
to the previous owner, who is alleged to
have given the application to the Rent
Control and Eviction Officer intimating
that the house in question was vacant and
3All] Smt. Sarvati Devi V. The 8th A.D.J., Agra and others
27
may be allotted to any one. Thirdly, the
allotment order has not been passed on the
basis that the previous landlord himself
had filed an application intimating about
the vacancy and the allotment order may
be passed on the basis of such application.

8. Respondent No.1 has further taken
the view that the petitioner was a tenant of
the premises in question before the
property was purchased and it shall be
taken that the tenant had vacated the house
after its purchase by such tenant. This view
is manifestly illegal. If a tenant, who was
already in possession of the property as a
tenant and subsequently purchased the
property, status is changed from tenant to
owner. He does not vacate the house but
continues to occupy the house. Section 15
of the Act, contemplates physical vacancy
and Section 12 of the Act contemplates
deemed vacancy though in fact there is no
physical
vacancy.
The
tenant,
who
occupies the house, had not vacated nor it
was a case covered by Section 12 of the
Act. There cannot be any vacancy if a
tenant purchases the property under his
tenancy.

9. Respondent No.1 further observed
that the petitioner should have filed
objection before the Rent Control and
Eviction Officer in this respect. The
petitioner was never given notice by him.
The entire proceedings were behind her
back and surreptitiously the possession
was also taken by the respondent no3 on
the date the allotment order itself was
passed.

10. The landlord is also entitled to a
notice by the Rent Control and Eviction
Officer before the application for allotment
are to be considered. Rule 9(3) of the
Rules provides that the Rent Control and
Eviction Officer shall issue a notice to the
landlord intimating him the date fixed for
considering the allotment applications. The
Rent Control and Eviction Officer did not
issue any such notice. Respondent No.1
has substituted his own reason that as the
landlord himself had intimated the vacancy
and expressed his intention that it may be
allotted to any one, it was not necessary to
issue a notice to him. The Rent Control
and Eviction Officer had not taken this
view. He was, in fact, in haste to pass the
allotment order. Respondent No.1 has
substituted
his
own
reason
without
considering the fact that the Rent Control
and Eviction Officer had not passed the
allotment order on the basis of the said
application. He passed the allotment order
on the basis of the report of the Inspector
that the house was found locked and,
therefore, it should be deemed as vacant.
Secondly, there cannot be any presumption
that any application received in the office
purporting to have been given by a person,
is of the same person. The Rent Control
and Eviction Officer has to make an
enquiry as to whether the application has
been given by the same person. There was
no reason that the previous owner would
have intimated the vacancy with a further
prayer that it may be allotted to any one
when he was selling the property to the
petitioner.

11. There is another aspect that the
allotment order was passed on 16.4.1983
directing the respondent No.4 to let it out
to respondent No.3. Respondent No.4 was
not owner on the said date. He had already
sold the property to the petitioner by a
registered sale-deed on 21.3.1983 and,
therefore, no direction could have been
given to respondent No.4 who was then
neither owner nor landlord of the property
in question.
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
28
12. Respondent No.3, in a high
handed manner, illegally dispossessed the
petitioner on 16.4.1983, the date on which
the allotment order was passed. The Rent
Control and Eviction Officer had issued
two different forms on the same date.
Form B was issued directing the previous
owner, respondent No.4 to let to let the
premises in question to respondent. No.3.
He further issued form C under Rule 14 of
the Rule directing respondent No.4 to
deliver
possession
to
the
allotteerespondent No.3 Rule 14 provides that an
order in form 'C' shall be served upon the
person who is in unauthorized occupation
of the building directing him to vacate the
same and deliver vacant possession thereof
to the person named in the order within
such period as may be specified in the
order, which shall in no case be less than a
week from the date of service of the order
upon him. The order in form C was issued
in the name of respondent No.4 who was
then not the owner of the property.
Secondly, the order indicates to deliver the
possession on or before 16.4.1983 in
violation of Rule 14 which prescribes
minimum one week's time shall be given
to
the
occupier
to
vacate
the
accommodation. Respondent No.3 took
possession on the same date. It is clear
from the facts and circumstances of the
case, that the Rent Control and Eviction
Officer colluded with the allottee, the
respondent No.3, and he, in violation of
the statutory law, passed the allotment
order and also got evicted the petitioner
who was a lawful occupant as owner of the
house in question. Respondent No.1 also
while
disposing
the
revision
clearly
misdirected himself and dismissed the
revision filed by the petitioner.

13. In view of the above, the writ
petition is allowed and the orders dated
16.4.1983 and 20.1.1984 are hereby
quashed. Respondent Nos. 2 and 3 are
directed to restore the possession to the
petitioner within 24 hours from the date of
production of a certified copy of this order.

14. The Senior Superintendent of
Police, Agra shall take steps for restoration
of the petition to the petitioner within 24
hours from the date, the order is produced
before him.

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