# Yogesh Chandra Rajvedi v. II Additional District Judge, Kanpur and others

- **Citation:** (2003) 3 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-23
- **Case number:** Civil Misc. Writ Petition No 7008 of 1984
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogesh-chandra-rajvedi-v-ii-additional-district-judge-kanpur-and-others-40141
- **Pages:** 5

## Headnote

Sri P.N. Saxena
Sri S.K. Chaturvedi
S.C.

U.P.
Urban
Building
(Regulation
of
Letting & Rent) Control Act 1972-U.P.
Act No. 13 of 1972-Section 18 (3)-power
of
the
Execution
Court-District
Magistrate
exercising
power
of
execution
authority-whether
can
go
beyond the terms of judgement/order?
Held 'No'.

Held- Para 14

The District Magistrate while exercising
power under section 18 (3) of the Act to
that of executing Court, cannot go
beyond the terms of the order sought to
be enforced and he cannot enter into the
merit or de-merit of the case. The same
view has been held by this court in 1998
(1) AWC 260 Dr. Smt. Keshav Devi Vs.
The
Addl.
District
Magistrate
(Civil
Supply) Lucknow and 1984(1) ARC 327
Abdul Ghafoor Vs. The Rent Control and
Eviction Officer/D.S.O. Saharanpur and
another.
Case law discussed:
1998 (1) AWC-260
1984 (1) ARC-32
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3 All] Yogesh Chandra Rajvedi V. II A.D.J., Kanpur and others
631

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
error in law in holding the workman
guilty and nor the award is perverse. The
findings of fact, which are not perverse,
should not be overturned in exercise of
powers
under
Article
226
of
the
Constitution of India. I am also supported
with my view by a recent judgment of the
Apex Court in 2002 (1985) FLR 949 M/s
Esen Dinki Vs. Rajiv Kumar in this
regard.

14. From the record and the
evidence which was looked into by the
Labour Court under Section 11-A of the
Industrial Disputes Act it is noted that the
workmen were found responsible in
riotous behaviour, beating the officials of
the company and using abusive language
and slogans. There are findings of fact by
the Labour Court. The Courts in catena of
decisions have held that the punishment
of dismissal for using abusive language
and beating the superior officers is
proportionate to the charge.

15. For these reasons and as a result
of the aforesaid discussions it is not a fit
case for exercise of powers under Article
226 of the Constitution of India. The writ
petition fails and is dismissed.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.5.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No 7008 of 1984

Yogesh Chandra Rajvedi
...Petitioner
Versus
II Additional District Judge, Kanpur and
others

 ...Respondents

Counsel for the Petitioner:
Sri Navin Sinha
Sri Vipin Sinha

Counsel for the Respondents:
Sri P.N. Saxena
Sri S.K. Chaturvedi
S.C.

U.P.
Urban
Building
(Regulation
of
Letting & Rent) Control Act 1972-U.P.
Act No. 13 of 1972-Section 18 (3)-power
of
the
Execution
Court-District
Magistrate
exercising
power
of
execution
authority-whether
can
go
beyond the terms of judgement/order?
Held 'No'.

Held- Para 14

The District Magistrate while exercising
power under section 18 (3) of the Act to
that of executing Court, cannot go
beyond the terms of the order sought to
be enforced and he cannot enter into the
merit or de-merit of the case. The same
view has been held by this court in 1998
(1) AWC 260 Dr. Smt. Keshav Devi Vs.
The
Addl.
District
Magistrate
(Civil
Supply) Lucknow and 1984(1) ARC 327
Abdul Ghafoor Vs. The Rent Control and
Eviction Officer/D.S.O. Saharanpur and
another.
Case law discussed:
1998 (1) AWC-260
1984 (1) ARC-32
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3 All] Yogesh Chandra Rajvedi V. II A.D.J., Kanpur and others
631
(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard the learned counsel for the
parties and perused the records.

The petitioner has filed the present
writ petition challenging the judgments
and order dated 18.6.1983 and 15.2.1984,
Annexure-3 and Annexure-4 to the writ
petition passed by respondents no. 2 and1
respectively. By the aforesaid order dated
18.61983 the Addl. City Magistrate held
that:-

"mHk;i{kksa ds fo}kuksa odhyks dh cgl rFkk i=koyh
lk{; ds vk/kkj ij eSa bl fu'd"kZ ij igqapk gwa fd izkFkhZ
x.k ;ksxs'kpUnz vkfn ds fo}ku odhy dk ;g rdZ fjohtu esa
ftyk tt egksn; us dksbZ LislhfQd vkns'k fn;k Fkk ftlds
vuqikyu fcuk fdlh vkifRr vkfn dks lqus Hkh gq;s bl
U;k;ky; dk drZO; gSA ekuus ;ksX; ugha gSA tSlk fd
ekuuh; mPp U;k;ky; us viusvkns'k fnuakd 27-1-83 esa
Li"V dj fn;k gSA ;ksxs'kpUnz ds izkFkZuk izi= ds leFkZu esa
dsoy blh ,d rdZ ij cy fn;k tk jgk FkkA tks ekuuh;
mPp U;k;ky; ds foLrfr ds vkns'k ds ckn fcydqy ekuus
;ksX; ugha izrhr gksrkA vc u ;g ykbZlsUlh gS okn u
fdjk;s nkj gSA vkSj u lg xzgLokeh gSA bl lEcU/k esa fd
mudks fdl gSfl;r ls dCtk okil fnyk;k tk; mUgksusa u
rks dksbZ lk{; fn;k gS vkSj u rks dkuwu fn[kk;k gSA /kkjk
18@3@ ij vkns'k ikfjr djus dk vf/kdkj bl U;k;ky;
dks gh gSA vr% ;ksxs'kpUnz vkfn dks /kkjk 18@3@ dk izkFkZuk
i= fujLr fd;k tkrk gSA

 g0 ts0 Mh0 JhokLro

 vfr0 uxj eft0 rrh;@fd0fu0v0

 dkuiqjA fnuakd 18-6-83"

By order dated 15.2.1984 it has been held
that:-

"I have gone through these two
pronouncements and I am not to agree
with the learned counsel that this court
after issuing order for restitution on 7.7.78
can again pass an order for restitution
specially when the R.C.&E.O. acting on
the guide line laid down by the Hon'ble
High Court in the writ petition decided on
17.1.83 has chosen to reject the same. The
application
to
my
mind
is,
not
maintainable. It has therefore, to be
rejected as not maintainable.

Order
The application is a accordingly rejected
as not maintainable. The parties are left to
bear their own cost.

S/d D.C. Srivastava
II Addl District Judge, Kanpur.
 Dt. 15.2.84.

2.

The
prayer
for
restoring
possession over the premises in dispute
has been rejected.

The brief facts of the case are that the
house in dispute was purchased by the
father of the petitioner, Satish Chandra,
since deceased, Benami in the name of his
wife Smt. Sarasdwati Devi, respondent
no.5. After the death of the father, the
petitioner and his mother were residing in
the aforesaid premises. Respondent no. 5
sold the property to respondent no. 3
through sale deed dated 23.11.1976 and
handed over the possession of that
premises, which was in her occupation.

3. Respondent no.3 after purchasing
the
property
and
taking
over
the
possession of the portion of respondent
no. 5 moved the release application under
section 16 (1) (b) of U.P. Act No. XIII of
1972 against the petitioner on the ground
that he was an unauthorized occupant.
The vacancy in the aforesaid premises
was notified by the Rent Control and
Eviction Officer and the application for
releases was allowed on 13.4.1977.
Subsequently an order for delivery of
possession was passed on 11.5.1977 and
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632 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
the petitioner was dispossessed from the
disputed house.
4. Aggrieved, the petitioner moved
an application under Section 16 (5) of the
Act for review of the order dated
13.4.1977, which was dismissed by the
Rent Control and Eviction Officer III vide
order dated 16.6.1977. The petitioner
preferred a revision under section 18(1) of
U.P. Act No. XIII of 1992, which was
allowed and the order dated 16.6.1977
under section 16 of the Act was set aside
and a finding was recorded that the
petitioner
was not
an
unauthorized
occupants as he was a member of the
family and was in possession from before,
the revisional authority had not directed
the Rent Control And Eviction Officer
(RCEO) to restore the possession of the
disputed portion to the petitioner vide
Annesure-1.

5. The Court below relied upon the
admission of Smt. Saraswati Devi in the
sale deed that the petitioner occupied the
portion on her behalf without any
payment of rent and is not a tenant and
held that this admission is binding upon
her successor in interest and as such
section 12 (1) (C) of the Act did not apply
to the case. The operative portion of the
order passed by the II Addl,. District
Judge, Kanpur in Revision No. 99 of 1977
Yogesh Chandra Rajvedi Vs. Lal Chand
and others is as follows:-

6. "Revision allowed. Order of the
Tribunal dated 16th June, 1977 is
rescinded. Review application of Yogesh
Chandra is allowed. Order of the Tribuanl
releasing the premises in occupation of
Yogesh Chandra is cancelled. Now the
Tribunal has ceased. Hence the Rent
Control
and
Eviction
Officer
shall
proceed under Section 18 (3) for placing
the parties back in the position which they
could have occupied but for orders dated
13th April and 16th June, 1977.

Since the case involved complicated
questions of law and jurisdiction I would
leave the parties to bear own costs all
through.
Sd/- S.R. Bhargava,
II Addl. District Judge,
Kanpur. Dt. 7.7.78."

7. Respondent no. 3 challenged the
validity and correctness of the order dated
7.7.1978 passed by the revisional court in
writ petition no. 5590 of 1978, which was
dismissed by judgment and order dated
30.6.1980. He filed special leave petition
before the Hon'ble Supreme Court, which
was also dismissed by judgment and order
dated 19.2.1981.

8. After dismissal of the Special
Leave Petition by the Apex Court,
respondent no. 3 filed a civil suit in the
court of Munsif, Kanpur arraying Rent
Control and Eviction Officer as defendant
no. 2. In the said suit an application for
interim injunction was made restraining
the petitioner, which was dismissed by the
trial court. Aggrieved, he filed an appeal,
which was also dismissed by the Ist
Additional District Judge, Kanpur vide
order dated 18.8.1982. The petitioner
again filed another writ petition no 10427
of 1982 Lal Chand Vs. Yogesh Chand and
others challenging the judgment dated
18.8.1982 of the Additional District
Judge, Kanpur. The aforesaid writ petition
was dismissed with the observation that
the petitioner should move an application
for restoration of possession before
respondent no.2. His application under
section 18 (3) of the Act was dismissed by
Rent Control and Eviction Officer-III,
Kanpur after making enquiry regarding
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3 All] Yogesh Chandra Rajvedi V. II A.D.J., Kanpur and others
633
restitution of possession and set aside the
findings recorded by respondent no.1. By
order
dated
15.2.1984
petitioner's
application
against
the
order
dated
18.6.1983
was
also
dismissed
by
respondent no. 1.

9. The contention of the counsel for
the petitioner is that once the orders dated
13.4.1977 and 16.6.1977 passed under
section 16 of U.P. Act No. XIII if 1972
were set aside by the revisional court
under section 18 (1) of the Act by order
dated 7.7.1978, the District Magistrate has
no power to review the order under
Section 18 (1) and set aside the findings.
It is further submitted that the District
Magistrate under section 18 (3) has a
power like executing Court, but it cannot
set aside the order passed under section
18 (1) of the Rent Control Act. It is also
submitted that the District Magistrate
Under Section 18 (3) of the Act
implements and enforce the order made
under Section 16 of the Act. Once the
District Judge has rescinded the order and
has directed the applicant to be put back
in possession, the District Magistrate
while enforcing the said order cannot go
beyond the order and sit in appeal over
the same. Reliance has been placed in this
regard in 1988 (1) AWC 260 and 1984 (1)
ARC327.

10. From the above narration of
facts, it is crystal clear that respondent no.
3 has been making attempt to thwart the
proceedings
as
contemplated
under
section 18 (3) of U.P. Act No. XIII of
1972.

11. It appears from the record that in
the sale-deed it was recited that Smt.
Saraswati Devi had delivered possession
of her portion to the purchaser and other
family
members
including
Yogesh
Chanbdra Rajvedi would vacate the other
portion of the house, which was in their
respective
possession.
It
has
also
mentioned in the sale deed that in the
even her family members do not vacate
their portion, it would be open to
respondent no. 3 to get vacated the said
portion through court or in any other
manner.

12. The only short question involved
in this writ petition is whether in the facts
and the circumstances of the case stated
above, respondent no. 3 could get the
house vacated now.

13. It is contended by respondent
no.3 that Smt. Saraswati Devi was owner
of
House
No.119-69-A
Nasimabad,
Kanpur and this question had attained
finality and cannot be re-agitated in the
writ petition. It is submitted that Smt.
Saraswati Devi was residing as owner in a
portion of the house in question and
Yogesh Chandra Rajvedi and Smt.
Shankuntala were residing in ground floor
portion
and
in
first
floor
portion
respectively of the house in dispute. Even
if the petitioner was occupying any
specific portion in the house in dispute, he
was only the licensee of Smt. Saraswati
Devi and this question has already been
decided finally between the parties.

14. It is submitted that the notice of
the release proceeding was duly served
upon the petitioner, but he did not appear
to contest the same and as such he was in
unauthorized possession of the portion of
the house in dispute and had not right to
move any application under section 16 (5)
of the Act for restoration of possession.
The fact that the petitioner was a licensee,
has also been confirmed by the revisional
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634 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Court. It is stated that the question of
restoration of possession to the petitioner
whose licensce was revoked, was not
considered by this court nor the question
of jurisdiction of the revisional court to
pass an order for restoration of possession
for which only the District Magistrate had
been authorized under section 18 (3) of
the Act.

15. Admittedly the order dated
13.4.1977 and 16.6.1977 passed under
section 16 of the Rent Control Act, were
set aside by the revisional Court under
section 18 (1) of U.P. Act no. 13 of 1972
by order dated 7.7.1978. As such the
District Magistrate had no power to
review its own order under section 18 (3)
of the Act are analogous to the executing
court and it can only execute, implement
and enforce the order by which an order
of release or allotment under section 16 of
the Act is rescinded. Once the District
Judge has rescinded the order and has
directed the applicant to be put back in
possession, the District Magistrate while
enforcing the aforesaid order, cannot go
beyond it and sit in appeal over it. Under
the scheme of the Act the powers
exercised by the District Magistrate are
subject to the powers of supervision given
to the District Judge under Section18 (1)
of the Act. The District Magistrate while
exercising power under section 18 (3) of
the Act to that of executing Court, cannot
go beyond the terms of the order sought to
be enforced and he cannot enter into the
merit or de-merit of the case. The same
view has been held by this court in 1998
(1) AWC 260 Dr. Smt. Keshav Devi Vs.
The Addl. District Magistrate (Civil
Supply) Lucknow and 1984 (1) ARC 327
Abdul Ghafoor Vs. The Rent Control and
Eviction Officer/D.S.O. Saharanpur and
another.

16. For the aforesaid reasons, the
writ petition is allowed. The impugned
orders 18.6.1983 and 15.2.1984 are
quashed. The matter is remanded back to
the court below for fresh decision in
accordance with law in the light of
observations made above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No.18229 of 2001

M/s C.L. Gupta & Sons and another

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.P. Gupta
Sri Suneet Kumar
Sri U.N. Sharma

Counsel for the Respondents:
Sri N. Das
Sri A. Pandey
Sri S.P. Pandey
Sri Ravi Kant
Sri Amarendra Pandey
Sri R.R. Agarwal
S. C.

Constitution of India Article 226-Practice
and procedure unless the decision of
administrative
authority,
arbitrary
ground or illegal High Court not to
interfere or to act like court of appeal.

Held- Para 9

It is well settled that in administrative
matters the Court should not sit in
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