# Sri Vishnu Kumar v. Judge Small Causes Court Jhansi and Ors

- **Citation:** (2013) 2 ILRA 604
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-31
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-vishnu-kumar-v-judge-small-causes-court-jhansi-and-ors-42598
- **Pages:** 7

## Headnote

Sri
B.N.
Singh,
Sri
Ashish
Gupta
2 All] SriVishnu Kumar Vs. Judge Small Causes Court Jhansi and Ors.
605
Sri H.C. Mishra, Sri Prakash Gupta

U.P. Urban Building(Regulation of Rent and
Letting) Act 1972-Section 16(i)(b)-During
pendency of release application-prospective
allottee move allotment application-RCEO
committed great illegality by considering
both application simultaneously-Revision
Court rightly set-a-side the order-in view of
Full Bench decision of Talib Hasan's Caseprospective allottee has no right to resist
the release application.

Held: Para-12
It has been settled long back by Full
Bench decision of this Court in Talib
Hasan and another Vs. 1st Additional
District Judge and others, 1986 (1) ARC 1
that no allotment in respect of a building
covered by an application under Section
16(1)(b) of the Act can be made unless
such an application is rejected. The right of
a
prospective
allottee
to
have
his
application considered can, therefore, arise
only after rejection of application of the
landlord. The Full Bench also observed that
neither the Act nor the Rules postulate any
right in prospective allottee to file an
objection against release application, not
does the prospective allottee(s) have any
right or interest in the property or claim
against the landlord so as to enable him to
any hearing in the disposal of release
application. The Full Bench further observed
that even after deletion of old Rule 13 (4),
there is no change in the legal position of a
prospective allottee to have any locus
standi in the disposal of the release
application. The Full Bench made it clear
that a prospective allottee has only a
contingent right which can be exercised
only if the accommodation is not released in
favour of the landlord.

Case Law discussed:
1986 (1) ARC 1; Writ A No. 31574 of 2004;
1963 ALJ 725

## Text

604 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Board. He is not an officer appointed by
the Board or under the control of Basic
Education Board. For all purposes he is an
officer subordinate to State Government,
under the administrative and disciplinary
control of Secretary, Basic Education,
U.P. Government.

14. It is really strange that a District
Basic Education Officer could have
proceeded directly, without taking care of
getting approval etc. from the State
Government. Moreover the Secretary,
Basic Education has no knowledge or
control over such matters, is also
surprising. When asked from learned
Advocate General, in what circumstances
this appeal has been preferred, he states
that it has been filed only by appellant in
his own capacity. This shows strange and
precarious state of affairs in the State
where superior officer is not aware of the
acts and omissions on the part of
subordinate official and also not willing to
know about it. He lacks interest and leave
everything at the discretion of field
officers. He ought to have taken care or
precaution to see, whether subordinate
officials are performing their functions
validly and in accordance with law or not.
This shows total inaction, apathy and
laxity on the part of Principal Secretary,
Basic Education also his incapacity in
keeping subordinate officials within the
frame work of law.

15. Let an inquiry be made by Principal
Secretary, Basic Education as to how the
present appellant has acted in this matter and
that too by engaging a counsel not appointed
by State of U.P. but by one appointed by
Basic Education Board. He shall also make an
inquiry to find out in how many such matters,
other Basic Education Officers are behaving
in similar manner and how much funds from
State Exchequer, they have consumed,
without knowledge or permission from State
of U.P.

16. The Principal Secretary, Law is also
directed to find out as to in how many
matters, cases are being contested by various
authorities of State without seeking any
permission from Law Department and, if so,
what action has been taken by Law
Department in such matters.

17. After making such inquiry and
taking appropriate action, as directed
above,
both
the
above
Principal
Secretaries, shall submit report before this
Court, but not later than a period of six
months. This case shall be listed only for
this purpose i.e. perusal of compliance
report on 02.12.2013.

18. Since I have already found that this
appeal as instituted is not maintainable at the
instance of District Basic Education Officer,
Etawah, for the reasons and subject to
directions, stated above, the appeal is
dismissed as not maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 3177 Of 2006

Sri Vishnu Kumar ...Petitioner
Versus
Judge Small Causes Court Jhansi and
Ors. ...Respondents

Counsel for the Petitioner:
Sri Ravi Kant, Sri S.K. Garg

Counsel for the Respondents:
Sri
B.N.
Singh,
Sri
Ashish
Gupta
2 All] SriVishnu Kumar Vs. Judge Small Causes Court Jhansi and Ors.
605
Sri H.C. Mishra, Sri Prakash Gupta

U.P. Urban Building(Regulation of Rent and
Letting) Act 1972-Section 16(i)(b)-During
pendency of release application-prospective
allottee move allotment application-RCEO
committed great illegality by considering
both application simultaneously-Revision
Court rightly set-a-side the order-in view of
Full Bench decision of Talib Hasan's Caseprospective allottee has no right to resist
the release application.

Held: Para-12
It has been settled long back by Full
Bench decision of this Court in Talib
Hasan and another Vs. 1st Additional
District Judge and others, 1986 (1) ARC 1
that no allotment in respect of a building
covered by an application under Section
16(1)(b) of the Act can be made unless
such an application is rejected. The right of
a
prospective
allottee
to
have
his
application considered can, therefore, arise
only after rejection of application of the
landlord. The Full Bench also observed that
neither the Act nor the Rules postulate any
right in prospective allottee to file an
objection against release application, not
does the prospective allottee(s) have any
right or interest in the property or claim
against the landlord so as to enable him to
any hearing in the disposal of release
application. The Full Bench further observed
that even after deletion of old Rule 13 (4),
there is no change in the legal position of a
prospective allottee to have any locus
standi in the disposal of the release
application. The Full Bench made it clear
that a prospective allottee has only a
contingent right which can be exercised
only if the accommodation is not released in
favour of the landlord.

Case Law discussed:
1986 (1) ARC 1; Writ A No. 31574 of 2004;
1963 ALJ 725

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The writ petition is directed against
the order dated 17th October 2005, passed by
Additional District Judge/Special Judge,
SC/ST Act, Jhansi, allowing SCC Revision
No. 192 of 2004, filed by respondent no.2
and setting aside order dated 19.11.2004
passed by /Small Causes Court in Execution
Case no. 4 of 1987.

2. The facts in brief giving rise to the
present writ petition may be summarized
as under:

3. The dispute relates to house no. 208C/3 Jhokan Bagh, Civil Lines, Jhansi.
Respondents no.3 to 5, namely Smt. Kamla
Devi, Smt. Usha Agrawal, Smt. Anjali
Agrawal and one Sri Babu Lal Garg, father of
petitioner (now deceased), claimed to be
owners and landlord of the house in dispute.
Earlier, one Ramesh Chandra Agrawal was
tenant in the aforesaid house. Petitioner's
father (Late) Babu Lal instituted SCC suit no.
14 of 1983, seeking ejectment of the then
tenant Sri Ramesh Chandra Agrawal. The
parties entered into a compromise as a result
whereof, the suit was decreed, vide a
compromise decree 04.10.1985. The erstwhile
tenant Ramesh Chandra Agrawal, it was
alleged, did not honour compromise decree
and committed breach, by handing over
possession of disputed house to respondent
no.2, compelling petitioner's father to institute
Execution Case no. 4 of 1987.

4. Respondent no.2, Puran Chandra
Agrawal filed objection in the aforesaid
execution proceedings, The case set up by
him was that as per compromise decree,
outgoing tenant Ramesh Chandra Agrawal
was to vacate the premises within one year,
i.e by 04.10.1986. He informed Rent Control
and Eviction Officer (hereinafter referred to
as "RCEO") that he is going to vacate the
premises by 28.08.1986. Proceeding on the
aforesaid
information,
RCEO
notified
vacancy on 13.09.1986, pursuant whereto,
606 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
certain applications, seeking allotment were
filed
which
included
application
of
respondent no.2 (Pooran Chandra Agrawal)
also.
RCEO
passed
an
order
dated
05.12.1986, allotting the house in question to
respondent
no.2
and
rejected
release
application of petitioner landlord.

5.
Order dated 05.12.1986 was
challenged in revision no. 315 of 1986
which was allowed and the order of RCEO
was set aside by Additional District Judge,
Jhansi vide judgement dated 09.04.1987,
remanding the matter to RCEO, for fresh
hearing, though declaration of vacancy by
RCEO was upheld. Revisional Court took
the view that prospective allottee has no
right to contest release application of
landlord and such application would be
considered by RCEO independently.

6. After remand, RCEO vide order
dated
31.03.1989,
rejected
release
application of landlord and thereafter
proceeded
to
consider
allotment
application of prospective allottees. In the
meantime,
the
petitioner
landlord
challenged order dated 31.03.1989 in
Rent Control Revision No. 86 of 1989,
which was dismissed on 24.04.1990,
whereagainst, landlord came to this Court
in writ petition no. 18108 of 1990.
Another
proceedings
arose
from
Execution Case no. 4 of 1987, emerging
from
compromise
decree
dated
04.10.1985 in SCC suit no. 14 of 1983.

7. Therein Pooran Chandra Agrawal
filed objection, stating that pursuant to
allotment order dated 05.12.1986, he
obtained possession on 08.12.1986 and,
therefore, decree cannot be executed. The
said
objection
of
Pooran
Chandra
Agrawal was rejected by execution court,
vide order dated 02.11.1987, on the
ground that allotment order having been
set
aside
by
Revisional
Court
on
09.04.1987,
possession
of
Pooran
Chandra Agrawal was unauthorised and
illegal. Thereagainst Sri Pooran Chandra
Agrawal came in civil revision no. 205 of
1987, which was allowed by Revisional
Court on 24.04.1990, and against this
order, the petitioner landlord came in writ
petition no. 17361 of 1990. Both the
aforesaid writ petitions were heard
together and decided vide judgement
dated 28.05.2004. The order of RCEO
dated 31.03.1989 and that of Revisional
Court dated 24.04.1990 were quashed.
The matter was remanded to RCEO to
decide
release
application
afresh.
Similarly, writ petition relating to the
matter, arising from Execution Case No. 4
of 1987, was allowed by this Court,
holding that the view taken by Execution
Court that respondent no.2 being outsider,
had no locus standi under Order 21 Rule
97 C.P.C., is not correct, since even
stranger can file objection therein and
therefore objection filed by Pooran
Chandra Agrawal, respondent no.2 should
be heard on merits.

8. After remand, Execution Court again
considered objection of respondent no.2
Pooran Chandra Agrawal, registered as
objection as 14-C. It rejected the same by
order
dated
19.11.2004,
whereagainst
Revisional Court has allowed the revision
and set aside order passed by Execution
Court.

9. Learned counsel for the petitioner
submitted that even if respondent no.2 has
got possession of the house in dispute, it
was clearly unauthorised and illegal.
Therefore, his objection was rightly rejected
by Execution Court and Revisional Court
has erred in law by observing that
2 All] SriVishnu Kumar Vs. Judge Small Causes Court Jhansi and Ors.
607
possession was obtained by him pursuant to
allotment letter and subsequent cancellation
of that letter shall not render possession of
respondent no.2, illegal and unauthorised,
so long as the matter after remand is
pending before RCEO.

10. Per contra, Sri Ashish Gupta,
learned counsel appearing for respondent
sought to support the judgement of Revisional
Court, reiterating reasons contained therein.

11. In my view, it is not necessary to
complicate
the
matter
by
getting
entrapped into unnecessary legal jargon
when some admitted facts and relevant
statutory provisions, if put together and in
a straight manner, can bring legal
consequences on forefront, making the
entire thing very transparent and explicit.
The
compromise
decree
between
erstwhile tenant and landlord is not in
dispute. As per the compromise decree,
erstwhile tenant was bound to vacate the
premises within one year. Whether he
vacated the premises within agreed period
or beyond that, is not a matter in issue.
Suffice it to say that as a result of
compromise decree in an eviction suit, the
only consequence would be ouster of
tenant. So far as the tenanted building is
concerned, it would continue to remain in
the ambit of rent control statute. The
vacant building would be available to
RCEO and/or competent authority for
being allotted to a prospective allottee, by
following the procedure specified in the
Rent Control Statute. However, in the
meantime, landlord has a right under
Section
16
of
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (hereinafter referred to as "Act
1972"), to move an application before
RCE0 for getting the vacant building free
from allotment by having it released in his
favour. If such an application is made by
landlord before any allotment is made by
RCEO, the latter would be under statutory
obligation first to decide the release
application of landlord and then only he
can proceed with allotment, if had
rejected release application and not
otherwise.

12. It has been settled long back by
Full Bench decision of this Court in Talib
Hasan and another Vs. 1st Additional
District Judge and others, 1986 (1)
ARC 1 that no allotment in respect of a
building covered by an application under
Section 16(1)(b) of the Act can be made
unless such an application is rejected. The
right of a prospective allottee to have his
application considered can, therefore,
arise only after rejection of application of
the landlord. The Full Bench also
observed that neither the Act nor the
Rules postulate any right in prospective
allottee to file an objection against release
application, not does the prospective
allottee(s) have any right or interest in the
property or claim against the landlord so
as to enable him to any hearing in the
disposal of release application. The Full
Bench further observed that even after
deletion of old Rule 13 (4), there is no
change in the legal position of a
prospective allottee to have any locus
standi in the disposal of the release
application. The Full Bench made it clear
that a prospective allottee has only a
contingent right which can be exercised
only if the accommodation is not released
in favour of the landlord. The relevant
observations are :

"26. The right of a prospective
allottee is not an absolute right. It is
contingent
upon,
firstly,
the
accommodation
being
vacant
and,
secondly, the building being available for
608 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
allotment. Rule 13(4), as it stands, at
present reinforces this conclusion. It
provides that no allotment in respect of a
building covered by an application under
Section 16 (1) (b) shall be made unless
such application is rejected. The right of a
prospective
allottee
to
have
his
application considered hence arise only
after the rejection of the landlord's
application under Section 16 (1) (b). A
fortiori the prospective allottee comes
into the picture only after the disposal of
the landlord's application for release
under Section 16 (1) (b), and, only if the
same is rejected.

27. So far, therefore, as the scheme
of the Act and the rules framed
thereunder is concerned, the same, in our
opinion, clearly points to the conclusion
that a prospective allottee has no right of
objection against the release application
filed under Section 16 (1) (b). As
mentioned above, this right to have this
application considered for allotment
accrues only after the rejection of the
release
application.
Indeed
the
consideration of the applications for
allotment is taken up only after the
rejection of the application under Section
16 (1) (b). Neither the Act nor the rules
framed thereunder thus postulate any
right in a prospective allottee to file
objections against the release application.

28. The prospective allottee has also
no right or interest in the property or
claim against the landlord so as to be
entitled to any hearing in the disposal of
the
release
application
on
general
principles or doctrine of audi alteram
partem.

29. We have reached the above
conclusion on a systematic analysis of the
statute even without the aid of the old
Rule 13 (4). The old Rule 13 (4), in our
opinion, which was dropped in 1977,
merely recognized the long settled legal
position as spelled out by series of
decisions rendered on the construction
and scope of Rule 5 framed under the
1947 Act. It was purely declaratory in
nature and appears to have been inserted
by way of reiteration of the existing legal
position. Its deletion hence did not, in our
considered view, bring about any change
in the legal position, namely, that
prospective allottees have no locus standi
in the disposal of an application for
release under Section 16 (1) (b)."

13. Similar view has also been taken
by this Court in Sushil Prakash And
Others. vs. Dr. Sachindra Shekher And
Others (WRIT - A No. - 31574 of 2004
decided on 24.01.2013).

14. In the present case, earlier RCEO
committed a manifest jurisdictional error
by considering allotment application of
prospective allottees alongwith release
application of landlord and on the same
day i.e. 05.12.1986 he rejected release
application and passed order of allotment
in favour of respondent no.2 Pooran
Agarwal. The stage to proceed for
considering
a
vacant
building
for
allotment would have commenced only
after rejection of release application.
Without appreciating this aspect, RCEO
committed manifest error and illegality
and, therefore, it has rightly been set right
by
Revisional
Court
by
allowing
landlord's revision vide order dated
09.04.1987. The result of rejection of
RCEO's order dated 05.12.1986 was, that,
neither respondent no.2 could have
enjoyed status of a tenant, occupying
disputed building in accordance with law,
2 All] SriVishnu Kumar Vs. Judge Small Causes Court Jhansi and Ors.
609
in view of Section 13 of Act, 1972, nor
his occupation would be authorised and
legal. This is clear declaration in Section
13 of Act 1972. The fact of setting aside
order dated 05.12.1986 by the Revisional
Court, would be as if such order never
existed. It would vanish since inception,
as if never existed. Therefore, respondent
no.2 also could have no authority or
validity attached to his occupation of
building in dispute.

15. Moreover, it is also on record
that despite compromise decree which
was pending for execution, there is
nothing on record to show that erstwhile
tenant handed over vacant possession of
the building at any point of time to the
landlord.
The
prospective
allottee(s)
would have claimed a valid possession of
the building allotted to him on rent either
from
the
landlord
or
from
his
representative or with his consent from
outgoing tenant or from the rent control
authorities, as the case may be, but the
outgoing
tenant
cannot
hand
over
possession of the tenanted building
directly
to
a
prospective
allottee,
particularly when he stood a defaulter by
not honouring Court decree and execution
of compromise decree was already
pending before Execution Court.

16. Be that as it may, so far as
respondent no.2 is concerned, validity or
authority of his possession of disputed
building emanated from allotment order
dated 05.12.1986 and once it is admitted
that the said order has become a nullity in
the eyes of law, having been set aside by
superior Court, i.e., Revisional Court, in
revision preferred under Section 18 of Act
1972, the very basis of claim of respondent
no.2
disappeared.
His
possession
immediately became unauthorised and
illegal and no benefit or right or interest,
whatsoever, can be claimed by respondent
no.2 on the basis of an order which does not
exist after it having been set aside by
Revisional Court.

17. It is one thing to say that a
stranger can file objection under Order 21
Rule 97 CPC but it is another thing to
suggest that a stranger, though has no
legal or otherwise right, interest etc. to
keep disputed property in his possession,
can be allowed to continue with such
possession, and the admitted landlord,
seeking execution of compromise decree,
would be ousted from taking possession
of disputed building either from outgoing
tenant who was a party to the compromise
decree or from any third person who
stands
in
unauthorized
and
illegal
possession thereof.

18. The Revisional Court in the
present matter has not looked into the
matter in a just, valid and correct
perspective. Therefore, the impugned
judgment cannot sustain.

19. On behalf of the respondents, this
Court's decision in Peer Bux Vs. Karam
Chand 1963 ALJ 725 has been relied. This
decision is based on the provisions of U.P.
(Temporary) Control of Rent And Eviction
Act, 1947, wherein, I do not find that the
Court considered consequence and effect of
specific provisions, like Section 13 available
in Act 1972 and its effect, on the status of the
person, occupying the premises, without any
authority of law. With respect to provisions of
Act, 1972, which are much in detail and
specific now, the law is well settled, that if a
person
is
occupying
a
premises
unauthorisedly, his possession is illegal and
the accommodation shall be deemed vacant.
The aforesaid decision, therefore, would not
610 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
help respondent no.2, in the case in hand, in
view of Specific provisions of Act 1972.

20. In the result, the writ petition
succeeds and is allowed. Impugned order
dated 17th October 2005, passed by
Additional District Judge/Special Judge,
SC/ST Act, Jhansi, is set aside. The order
dated
19.11.2004,
passed
by
the
Execution Court is restored and affirmed.

21. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2013

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Service Single No.3802 of 2010

Ram Pal

...Petitioner
Versus
State of U.P. & Ors. .Respondents

Counsel for the Petitioner:
Sri R.B. Srivastava, Sri D.P. Gupta

Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226- Arrears of
salary-petitioner working beldar-illegally
retired- as per order of Tribunal-retirement
order set-a-side-reinstated in service after
consuming 6 yrs-worked till retirementheld-if willing to work but not allowed-to
work petitioner can not be guilty for
mistake of department-entitled for salary
for the period not allowed to work.

Held: Para-7
In
view
of
the
several
judgments
mentioned above the court is of the
considered view that the petitioner was
illegally retired. He was working with
unblemished career. He was willing to
work but was denied to perform duties
by the opposite parties-State. He was fit
to work is also clear by the fact that
when he was allowed to join after six
years he performed his duties till his age
of superannuation. He was deprived of
work and consequent salary because of
the
mistake
of
the
department.
Petitioner can not be held responsible for
the same. The petitioner deserves to get
the salary of the period claimed i.e. from
1.10.1988 to 18.5.1994 on the scale
which would have been applicable to him
had
he
been continued
in
service,
however, without any interest. It is
ordered accordingly.
Case Law discussed:
1994 HVD(Alld.) Vol. 1 85; L.C.D. 1996 (14)
360; (2003) 21 LCD 610; (2009) 2 Supreme
Court Cases 570

(Delivered by Hon'ble Shabihul Hasnain, J.)

1. Heard Sri R.B. Srivastava learned
counsel for the petitioner and learned
Standing Counsel for the opposite parties.

2. Petitioner has prayed for a writ in
the nature of certiorari quashing the letter
no.
74/Camp./ST-M-8/1998
dated
3.11.1998, as contained in Annexure no. 7
to the writ petition.

3. The claim of the petitioner for
arrears of salary for the period he has not
worked has been rejected by this order. It
is necessary for the proper adjudication of
the case that some facts may be narrated.

4. The petitioner was appointed as
'Beldar' under the Executive Engineer,
Provincial Division, Lok Nirman Vibhag,
Fatehpur in the year 1968. Petitioner is an
illiterate person. He has submitted that
when his service book was prepared in
1972 his case was referred to the medical
authority for verification of his date of
birth. Petitioner says that his age was
verified as 16.9.1938 but somehow it was
entered in the service book as 16.9.1928.
Therefore, the petitioner who-2- ought to