# Surendra Yadav v. Ram Naresh Lal @ Thakur and others - **Citation:** (2008) 3 ILRA 726 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2008-07-17 - **Case number:** Civil Misc. Writ Petition No. 25024 of 2008 - **Bench:** S.U. Khan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-yadav-v-ram-naresh-lal-thakur-and-others-41163 - **Pages:** 5 ## Headnote Sri. R.K. Srivastava U.P. Urban Building( Regulation of letting Rent and Eviction) Act, 1972Section 16(9)-allotment of residential 3 All] Surendra Yadav V. Ram Naresh Lal @ Thakur and others 727 house-without declaration of vacancy - without notice to landlord-without fixing any amount of rent-even possession taken by the allottee forcibly-allottee a sitting M.P.-held-wholly illegal-direction issued to the District Magistrate to recover the arrear of rent as land revenue-in extraordinary circumstances exceptional direction given for misuse of power and process. Held: Para 12 & 13 Allottee Surendra Yadav is directed to pay damages to the landlord for use and occupation of the accommodation in dispute since 22.05.1997 till the date of actual vacation at the rate of Rs.2,500/- per month. This amount shall be recovered from him by the District Magistrate like arrears of land revenue within three months and handed over to the landlord Ram Naresh Lal. In this regard also the Court hopes that the District Magistrate will not provide the opportunity to the landlord to file an application in this writ petition complaining non-compliance of this direction. As misuse of power and abuse of process of law was extraordinary in the allotment hence extraordinary directions for redressal have been issued. Case law discussed: AIR 1985 SC 1635, 1985 (2) ARC 73,. 2003 (2) ARC 629, 2004 (2) ARC 349. 2004 (2) ARC ## Text 726 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 7. Aggrieved by the aforesaid award the petitioner filed this writ petition. 8. At the time of admission following ad interim order was passed, which is as under:- "Sri S.N. Dubey has appeared for the respondent no. 1. He prays for and is allowed one month's time to file counter affidavit. Subject to compliance of provisions of Section 17-B of the Industrial Disputes, 1947 the impugned award dated 27.3.2004 published on 27.9.2004 shall remain stayed." 9. Interim order was granted to the petitioner at the time of admission. He has clearly stated that the petitioner was reinstated and now retired from service. 10. Learned counsel for the petitioner submits that the services of the workman concerned was terminated illegally unjustifiably and illegally and the Labour Court has given specific findings of fact that employer have failed to prove their case and have also has not been able to produce any evidence to the effect that the petitioner was driving the bus in state of intoxication. 11. The counsel for the respondents does not deny that no independent witnesses were produced by the department to establish the fact that the workman concerned had driven the bus in a state of intoxication or was found in such state. 12. The workman was not even got medically examined in this regard and no medical record was produced in the domestic inquiry proceedings or even before the labour court. 13. In my opinion that if bus driver person falls ill or sick in route to destination, it cannot be said that he has committed a misconduct by not taking the bus to its terminal. Since the employer has failed to prove their case and to show any illegality or infirmity in the award of the labour court I am not inclined to interfere in the findings facts recorded by the labour court in this case. 14. The writ petition is dismissed. As a consequence learned counsel for the respondents will pay arrears of salary to the workman under the impugned award and shall also to make payment of his retiral benefit within a period of three months from today. No order as to costs. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.07.2008 BEFORE THE HON'BLE S.U. KHAN, J. Civil Misc. Writ Petition No. 25024 of 2008 Surendra Yadav ...Petitioner Versus. Ram Naresh Lal @ Thakur and others ...Respondents Counsel for the Petitioner: Sri. P.P. Chaudhary Counsel for the Respondents: Sri. R.K. Srivastava U.P. Urban Building( Regulation of letting Rent and Eviction) Act, 1972Section 16(9)-allotment of residential 3 All] Surendra Yadav V. Ram Naresh Lal @ Thakur and others 727 house-without declaration of vacancy - without notice to landlord-without fixing any amount of rent-even possession taken by the allottee forcibly-allottee a sitting M.P.-held-wholly illegal-direction issued to the District Magistrate to recover the arrear of rent as land revenue-in extraordinary circumstances exceptional direction given for misuse of power and process. Held: Para 12 & 13 Allottee Surendra Yadav is directed to pay damages to the landlord for use and occupation of the accommodation in dispute since 22.05.1997 till the date of actual vacation at the rate of Rs.2,500/- per month. This amount shall be recovered from him by the District Magistrate like arrears of land revenue within three months and handed over to the landlord Ram Naresh Lal. In this regard also the Court hopes that the District Magistrate will not provide the opportunity to the landlord to file an application in this writ petition complaining non-compliance of this direction. As misuse of power and abuse of process of law was extraordinary in the allotment hence extraordinary directions for redressal have been issued. Case law discussed: AIR 1985 SC 1635, 1985 (2) ARC 73,. 2003 (2) ARC 629, 2004 (2) ARC 349. 2004 (2) ARC 789. 2008 (2) ARC 613. (Delivered by Hon'ble S.U. Khan, J.) 1. The first Writ Petition No. 25024 of 2008 has been filed by the tenantallottee Surendra Yadav. In that writ petition landlord- respondent Ram Naresh Lal had filed caveat through Sri R.K. Srivastava, learned counel. When the case was taken up as fresh, Sri A.K. Gupta learned counsel for Ram Naresh Lal, the landlord- petitioner in the second writ petition pointed out that the said writ petition was also connected with the first writ petition, accordingly both the writ petitions were heard together. 2. In the first writ petition petitioner, allottee tenant, Surendra Yadav has described himself as Ex. Member of Parliament, Khalilabad. 3. The writ petitions arise out of allotment proceeding. House in dispute was allotted to Surendra Yadav in 1997 and he immediately took possession thereof. On pointed enquiry by the Court from the learned counsel for him regarding payment of rent, it was categorically stated that till date no rent had been paid. However, learned Counsel stated that allottee- tenant Surendra Yadav was ready to pay the rent. There is a world of difference between actual payment and readiness to pay. 4. Allotment application was filed on 10.1 .1997 and on the same date report was called for from Rent Control Inspector, who submitted the report on 27.1.1997. Inspection was made without any notice to the landlord, contrary to the mandatory requirement of Rule 8(2) of the Rules framed under U.P. Urban Building (Regulation' of Letting, Rent and Eviction) Act. Thereafter Rent Control and Eviction Officer through order dated 19.05.1997 allotted the house in dispute to Surendra Yadav. At the time of allotment Sri. Surendra Yadav was sitting M.P. In the allotment order, there is no mention regarding any notice at any stage to the landlord. In the allotment order absolutely no rent was fixed. No. of allotted house is 572 and it is situate in Ward No.5 Mohalla Indira Nagar, Basti. Landlord in his writ petition (para 33) has stated that 728 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 house in dispute is spread over an area of 3000 sq. yard and is situate in the main market of Basti and contains four rooms, two verandas, latrine, bathroom and kitchen, open court yard and a lawn and can easily be let out on monthly rent of Rs.6,000/-. After allotment, procedure is prescribed under the Act and the Rules for taking possession. However the allottee took possession within 3 days i.e. on 22.05.1997 by himself and gave an intimation to that effect on 23.05.1997. In that intimation it was mentioned that in pursuance of allotment order, the allottee Surendra Yadav started residing in the house since 22.05.1997. The version of the landlord that the possession of the house was forcibly taken stands proved by the said letter. Landlord's allegation is that locks were also broken open while taking possession. Thereafter landlord filed revision against the allotment order (Revision No.157 of 2001). District Judge, Basti through order dated 04.02.2002 allowed the revision and remanded the matter to the Rent Control and Eviction Officer. Thereafter petitioner filed objection before Rent Control and Eviction Officer and also filed application for restoration of the possession on 12.08.2005. Thereafter fresh report was called for from Rent Control Inspector, who on 05.10.2005 reported that house was in possession of Surendra Yadav. Rent Control and Eviction Officer through order dated 30.09.2006 dismissed the application of the landlord for possession. Thereafter release application was filed by the landlord. It was also stated that landlord was employed at Gorakhpur and had taken a house at the rent of Rs.2,200/- per month. Rent Control and Eviction Officer through order dated 27.01.2008 released the accommodation in favour of the landlord. Against the said order allottee-tenant filed revision no. 10 of 2008. Revision filed by the allottee tenant against the release order (Civil Revision No.10 of 2008) has been dismissed on 19.04.2008 by District Judge Basti which order has been challenged through first writ petition by Surendra Yadav allottee-tenant. 5. The allotment order was utterly illegal and without jurisdiction as none of the following mandatory notices were issued to the landlord. i) Before inspection (rule 8(2) of the Rules) ii) Before declaration of vacancy (vide Ganpat Roy Vs. ADM AIR 1985 SC 1635: 1985 (2) ARC 73. iii) After declaration of vacancy and before allotment (rule 9(3) of the Rules) I have discussed all these aspects in detail in R.L. Paddar Vs. ADJ 2003 (2) ARC 629, C.K. Nagarkar Vs. ADJ 2004 (2) ARC 349 and K.L. Yadav Vs. ADJ 2004 (2) ARC 789 6. In fact no order for declaration of vacancy was passed by the Rent Control and Eviction Officer. The report of R.C.I. did not disclose any vacancy. It only stated that at the time of inspection house was locked. If house is found locked, it does not mean that it is vacant. Occupant may have temporarily gone out after locking the house. Moreover in the aforesaid authorities I have also held that allotment order is without jurisdiction if no rent is fixed therein. By virtue of definition of lease given under Section 105, Transfer of Property Act there cannot be any tenancy/lease without rent. Moreover under Section 16 (9) of the U. P. Rent Control Act it is mandatory for 3 All] Surendra Yadav V. Ram Naresh Lal @ Thakur and others 729 Rent Control and Eviction Officer to direct the tenant to pay presumptive rent. obtained allotment order by virtue of his being sitting M. P. Public 7. From the above facts it is more than clear that Surendra Yadav obtained allotment order by virtue of his being sitting M.P. Public figures are supposed to act in more reasonable manner than ordinary citizens. People tend to follow the things done by their rulers. 8. In the above scenario, para 17 of a recent authority of Supreme Court reported in R.K. Shukla Vs. S.N. Anand 2008 (2) ARC 613 requires to be quoted and is quoted below:- "17. There is another aspect of this matter for which in the facts and circumstances of the case we would not exercise our discretionary power under Article 136 of the Constitution. The vacancy declaration order and the consequent allotment in favour of the appellant was made in the manner indicated herein earlier and the appellant stormed into the disputed premises more than two decades back and started enjoying the same without paying a single penny in respect of the same. It was only after the judgment of the High Court that he had deposited the amount as directed by the High Court. Therefore, we do not find any reason to interfere with the impugned judgment of the High Court under Article 136 of the Constitution in the facts and circumstances of the present case." 9. The prayer in the writ petition by the landlord is for quashing the admission order passed by the Revisional Court. However, thereafter the Revisional Court has dismissed the revision. The second prayer in the landlord's writ petition is for a writ of mandamus commanding the Rent Control and Eviction Officer, Sadar, Basti to restore possession. Third prayer is for a direction to allottee to pay damages at the rate of Rs.6,000/- per month from the date of possession i.e. 22.05.1997. 10. I do not find least error in the judgment and order of the Revisional Court dated 19.04.2008 and release order dated 7.1.2008. The need of the landlord has rightly been found to be bonafide as he has got no other house. Moreover as held in 1986 (1) ARC 1 Talib Hasan vs. ADJ (FB) and R.N. Sharma vs. S. Gaur A.I.R. 2002 SC 2204, allottee can not question the need of landlord in proceedings under Section 16 of the Act. Accordingly, first writ petition filed by allottee Surendra Yadav is dismissed. Second Writ petition by the landlord Ram Naresh Lal is allowed in part. 11. Allottee Sri Surendra Yadav is granted one months' time to vacate, failing which, District Magistrate, Basti shall positively restore the possession of the house in dispute to the landlord by 31.8.2008. In the process of delivery of possession, Rent Control and Eviction Officer shall not be involved in any manner. Copy of this judgment shall immediately be sent to District Magistrate. It may be sent through fax also. Any laxity or latitude on the part of the District Magistrate in this regard will not at all be appreciated by this Court. District Magistrate must realise that his delegatee i.e. Rent Control and Eviction Officer has already crossed all the limits. It may be appropriate for the District Magistrate to take action/recommend to 730 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 take action on the administrative side against the erring Rent Control and Eviction Officer, who made the allotment in most illegal manner. Rent Control and Eviction Officer played the role of willing tool in the hands of sitting M.P. and abject surrender to his whims on the part of Rent Control and Eviction Officer. 12. Allottee Surendra Yadav is directed to pay damages to the landlord for use and occupation of the accommodation in dispute since 22.05.1997 till the date of actual vacation at the rate of RS.2,500/- per month. This amount shall be recovered from him by the District Magistrate like arrears of land revenue within three months and handed over to the landlord Ram Naresh Lal. In this regard also the Court hopes that the District Magistrate will not provide the opportunity to the landlord to file an application in this writ petition complaining non-compliance of this direction. 13. As misuse of power and abuse of process of law was extraordinary in the allotment hence extraordinary directions for redressal have been issued. 14. Office is directed to supply a copy of this judgment to learned Chief Standing Counsel free of cost within three days. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.07.2008 BEFORE THE HON'BLE MRS. POONAM SRIVASTAVA, J. Second Appeal No. 1618 of 1989 Smt Urmila Devi ...Appellant Versus Ram Dhani and others ...Respondents Counsel for the Appellant: Sri. V.K. Singh Counsel for the Respondents: Sri. Sushil Kumar Mehrotra Sri. R.J. Shahi (A) Code of Civil Procedure-Section100Second Appeal-Suit for permanent injunction-on the basis of registered sale deed-using the same by raising construction for 40 years-if the injunction refused-right of egress and ingress shall be effected-both the Courts below recorded finding of facts about two different means of egress and ingress-cannot be interfered by the appellate Court in second appeal-against the concurrent finding of factsparticularly in absence of pleadings of easementry rights. Held: Para 4 Thus it is evident that the claim of the plaintiff that she has no other entrance or exit to her house constructed in the year 1985, has also not been accepted by the trial court though the suit was decreed injuncting the defendants from interfering in the exit and entry towards north side. This part of the finding stands confirmed by the lower appellate court and thus I am of the considered view that this finding by the two courts is a finding of fact and can not be interfered in exercise of jurisdiction under Section 100 C.P.C.