Pritpal Singh v. Jagdish Sahgal) under Section

Petitioner :- Prit Pal Singh Respondent :- Jagdish Sahgal Counsel for Petitioner :- Anand Kumar Srivastava Counsel for Respondent :- Sanjeev Kumar Pandey,Vijay Kant Dwivedi Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Atul Dayal, learned Senior Counsel assisted by Mr. Anand Kumar Srivastava, learned counsel for tenant/ petitioner and Sanjeev Kumar Pandey, learned counsel for the landlord/ respondent.

2. Brief facts of the case are that petitioner is a tenant of shop No.1 and 2 bearing house Nos. 124-A/ 152-153 Govind Nagar, Kanpur Nagar. Petitioner was paying monthly rent of Rs. 500/- per month to Mathura Prasad (father of respondent) and later on rent was enchanced to Rs. 750/- per month. After death of Mathura Prasad, petitioner was paying rent to mother of respondent upto February 2015. Petitioner started to deposit the rent before the Court under U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 hereinafter referred to as U.P. Act No. 13 of 1972 as brother of respondent denied to receive the rent in the month of March 2015. Respondent filed an application dated 14.8.2015 before Rent Control and Eviction Officer to declare vacancy of aforesaid shop under Section 15 (1) (2) of U.P. Act No. 13 of 1972 stating the petitioner is unauthorized occupant since 1994. A report dated 24.9.2015 was submitted for appropriate action accordingly a case No. 10 of 2016 under Section 15 (1) (2) of U.P. Act No. 13 of 1972 was registered before Rent Control and Eviction Officer, Kanpur Nagar. In the aforementioned case, written statement as well as replication were filed. The Rent Control and Eviction Officer vide order dated 25.5.2019 declared the vacancy of shop Nos. 1 and 2 situated in house No. 124-A/ 152- 153, Govind Nagar, Kanpur Nagar. Respondent filed a release application for release of shop in question for business purpose of his daughter and son which was registered as case No. 2845 of 2019. Petitioner filed an application under Order 9 Rule 13 C.P.C. readwith Section 151 of C.P.C. for recalling the order dated 25.5.2019 declaring vacancy and to restore the vacancy matter on its original number for fresh adjudication. Rent Control and Eviction Officer vide order dated 24.12.2020 allowed the release application with condition that shop will be used by family members for business purpose only. Petitioner challenged the orders dated 25.5.2019 and 24.12.2020 through revision before District Judge alongwith stay application which was registered as revision No. 30 of 2021. The aforementioned revision was heard by Additional District Judge Kanpur Nagar and the same was dismissed vide order dated 3.11.2021. Petitioner challenged the orders dated 25.5.2019, 24.12.2020 and 3.11.2021 by way of Matter under Article 227 No. 6480 of 2021, this Court entertained the matter and granted interim relief enhancing the rent to Rs. 5000/- per month for each shop. This Court vide final order dated 27.9.2022 set aside the impugned orders and remanded the matter before Rent Control and Eviction Officer with regard to applicability of U.P. Act No. 13 of 1972. In pursuance of the order of this Court dated 27.9.2022, the Rent Control and Eviction Officer passed an order dated 23.3.2023 declaring vacancy of the shop in question. One Aniket Kannaujia filed an application before Rent Control and Eviction Officer for allotment of the shops in question in his favour. Petitioner filed his objection dated 16.5.2023 that shops in question should be released in his favour. Rent Control and Eviction Officer vide order dated 25.11.2023 released the shops in question in favour of respondent. Petitioner challenged the order dated 23.3.2023 and 25.11.2023 by way of revision under Section 18 of U.P. Act No. 13 of 1972 which was registered as case No. 4 of 2024. The aforementioned case No. 4 of 2024 was heard and dismissed by District Judge vide order dated 1.1.2024. Hence this petition under Article 227 of the Constitution on behalf of petitioner/ tenant for following relief:- "Set aside the order impugned dated 1.1.2024 passed by District Judge, Kanpur Nagar in Civil Misc. Case 04 of 2024 (Pritpal Singh Vs. Jagdish Sahgal) under Section 18 of Act No. 13 of 1972 and order impugned dated 23.3.2023 as well as consequential order impugned dated 25.11.2023 passed by Rent Control and Eviction Officer, Kanpur Nagar in RST/02845/2019 (Jagdish Sahgal Vs. Pratipal Singh) under Section 16 (1) of Act No. 13 of 1972."

3. This Court entertained the matter on 19.1.2024 and granted interim protection to petitioner. This Court vide subsequent order dated 30.8.2024 directed the learned counsel for the respondent to file counter affidavit accordingly parties have exchanged their pleadings.

4. Learned Senior Counsel for the petitioner submitted that revision filed by petitioner has been rejected only on the ground that order declaring vacancy was not challenged by tenant/ petitioner, as such, he has no right to challenge the release order which is wholly illegal in view of ratio of law laid down by Hon'ble Apex Court in the case reported in 2005 (1) ARC 877 Achal Mishra Vs. Rama Shankar Singh and Others. He further submitted that Rent Control and Eviction Officer as well as District Judge have recorded perverse finding, as such, the same cannot be sustained in the eye of law. He further submitted that information of vacancy cannot be given under Section 15 (1) (2) of U.P. Act No. 13 of 1972 but the same was not taken into consideration while passing the impugned orders. He submitted that building was assessed for the first time in the year 1976 by Municipal Committee through resolution dated 29.3.1976 but the same was not taken into consideration while passing the impugned orders.

5. Learned counsel for the respondent submitted that Aniket is servant/ employee of petitioner and petitioner has made attempt for allotment of the shop through his servant/ employee. He submitted that in pursuance of the order of this Court, the prescribed authority has held that provisions of U.P. Act No. 13 of 1972 are applicable in the instant matter. He submitted that son and daughter were unemployed, as such, there was bonafide need of the respondent. He submitted that Rent Control and Eviction Officer has recorded finding for declaring vacancy and holding that petitioner is an illegal occupant. He submitted that District Judge has rightly held that without challenging the order dated 23.3.2023 declaring the vacancy, petitioner has no right to challenge the order dated 25.11.2023, as such, revision was not maintainable. He submitted that revision was filed with delay without filing application under Section 5 of Indian Limitation Act, as such, revision has rightly been dismissed under impugned order dated 1.1.2024. He submitted that case law cited by learned counsel for the petitioner is not applicable in the facts and circumstances of the instant matter, as such, instant petition is not maintainable and liable to be dismissed.

6. I have considered the arguments advanced by learned counsel for the parties and perused the records.

7. There is no dispute about the fact that Rent Control and Eviction Officer vide order dated 23.3.2023 delcared vacancy of the shop in question and vide subsequent order dated 25.11.2023 released the shop in question in favour of respondent. Petitioner challenged the orders dated 23.3.2023 and 25.11.2023 under Section 18 of the U.P. Act No. 13 of 1972 which has been dismissed as not maintainable under impugned order dated 1.1.2024.

8. The controversy involved in the matter is as to whether the revision filed by petitioner under Section 18 of U.P. Act No. 13 of 1972 against the order declaring the vacancy as well as order releasing the shop in question can be dismissed as not maintainable.

9. The Apex Court in the case reported in Achal Mishra (Supra) has held that order notifying the vacancy alongwith final order of allotment can be challenged in revision together. Paragraph Nos. 13 and 14 of the judgement of Hon'ble Apex Court in the case of Achal Mishra (Supra) will be relevant for perusal which are as under:- "13. It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision making in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy' s case, which has disapproved the ratio of the decision in M/s Tirlok Singh and Co., cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy' s case and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Smt. Kunj Lata vs. Xth Additional District Judge, Kanpur Nagar and others (supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies.

14. We are, therefore, satisfied that the High Court was in error in allowing the Writ Petition solely on the ground that the landlord had not challenged the original order notifying the vacancies then and there. The decision of the High Court in the Writ Petition, therefore, requires to be set aside and the Writ Petition remanded to that Court for a fresh hearing and disposal in accordance with law, including the question whether the order notifying the vacancy was proper. It would also be necessary for the High Court to consider the effect of the cancellation of the order in favour of Respondent No.2 considering the nature of the allotment made in his favour, even assuming that the High Court does not find any reason to interfere with the order notifying the vacancy or with the order making the allotment. The appeal is hence allowed. The judgment of the High Court in the Writ Petition filed by the allottees is set aside and the Writ Petition is remanded to the High Court for a fresh disposal in accordance with law and in the light of the observations contained in this judgment. The High Court, it is hoped, will expeditiously dispose of the Writ Petition afresh pursuant to this order of remand, in the circumstances of the case preferably within a period of six months of the receipt of a copy of this Judgment."

10. Considering the ratio of law laid down by Apex Court in the case of Achal Mishra (Supra), the dismissal of petitioner's revision as not maintainable against the final order of notifying the vacancy as well as order of release is wholly illegal accordingly impugned revisional order dated 1.1.2024 passed by District Judge, Kanpur Nagar in case No. 4 of 2024 is set aside.

11. The instant petition is allowed in part and case No.4 of 2024 is restored to its original number. The revisional Court shall decide the aforementioned revision afresh on merit after affording opportunity of hearing to both the parties expeditiously preferably within period of three months from the date of production of certified copy of this order before him. Order Date :- 12.8.2025 Vandana Y./ Neetu VANDANA YADAV High Court of Judicature at Allahabad

Petitioner :- Prit Pal Singh Respondent :- Jagdish Sahgal Counsel for Petitioner :- Anand Kumar Srivastava Counsel for Respondent :- Sanjeev Kumar Pandey,Vijay Kant Dwivedi Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Atul Dayal, learned Senior Counsel assisted by Mr. Anand Kumar Srivastava, learned counsel for tenant/ petitioner and Sanjeev Kumar Pandey, learned counsel for the landlord/ respondent.

2. Brief facts of the case are that petitioner is a tenant of shop No.1 and 2 bearing house Nos. 124-A/ 152-153 Govind Nagar, Kanpur Nagar. Petitioner was paying monthly rent of Rs. 500/- per month to Mathura Prasad (father of respondent) and later on rent was enchanced to Rs. 750/- per month. After death of Mathura Prasad, petitioner was paying rent to mother of respondent upto February 2015. Petitioner started to deposit the rent before the Court under U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 hereinafter referred to as U.P. Act No. 13 of 1972 as brother of respondent denied to receive the rent in the month of March 2015. Respondent filed an application dated 14.8.2015 before Rent Control and Eviction Officer to declare vacancy of aforesaid shop under Section 15 (1) (2) of U.P. Act No. 13 of 1972 stating the petitioner is unauthorized occupant since 1994. A report dated 24.9.2015 was submitted for appropriate action accordingly a case No. 10 of 2016 under Section 15 (1) (2) of U.P. Act No. 13 of 1972 was registered before Rent Control and Eviction Officer, Kanpur Nagar. In the aforementioned case, written statement as well as replication were filed. The Rent Control and Eviction Officer vide order dated 25.5.2019 declared the vacancy of shop Nos. 1 and 2 situated in house No. 124-A/ 152- 153, Govind Nagar, Kanpur Nagar. Respondent filed a release application for release of shop in question for business purpose of his daughter and son which was registered as case No. 2845 of 2019. Petitioner filed an application under Order 9 Rule 13 C.P.C. readwith Section 151 of C.P.C. for recalling the order dated 25.5.2019 declaring vacancy and to restore the vacancy matter on its original number for fresh adjudication. Rent Control and Eviction Officer vide order dated 24.12.2020 allowed the release application with condition that shop will be used by family members for business purpose only. Petitioner challenged the orders dated 25.5.2019 and 24.12.2020 through revision before District Judge alongwith stay application which was registered as revision No. 30 of 2021. The aforementioned revision was heard by Additional District Judge Kanpur Nagar and the same was dismissed vide order dated 3.11.2021. Petitioner challenged the orders dated 25.5.2019, 24.12.2020 and 3.11.2021 by way of Matter under Article 227 No. 6480 of 2021, this Court entertained the matter and granted interim relief enhancing the rent to Rs. 5000/- per month for each shop. This Court vide final order dated 27.9.2022 set aside the impugned orders and remanded the matter before Rent Control and Eviction Officer with regard to applicability of U.P. Act No. 13 of 1972. In pursuance of the order of this Court dated 27.9.2022, the Rent Control and Eviction Officer passed an order dated 23.3.2023 declaring vacancy of the shop in question. One Aniket Kannaujia filed an application before Rent Control and Eviction Officer for allotment of the shops in question in his favour. Petitioner filed his objection dated 16.5.2023 that shops in question should be released in his favour. Rent Control and Eviction Officer vide order dated 25.11.2023 released the shops in question in favour of respondent. Petitioner challenged the order dated 23.3.2023 and 25.11.2023 by way of revision under Section 18 of U.P. Act No. 13 of 1972 which was registered as case No. 4 of 2024. The aforementioned case No. 4 of 2024 was heard and dismissed by District Judge vide order dated 1.1.2024. Hence this petition under Article 227 of the Constitution on behalf of petitioner/ tenant for following relief:- "Set aside the order impugned dated 1.1.2024 passed by District Judge, Kanpur Nagar in Civil Misc. Case 04 of 2024 (Pritpal Singh Vs. Jagdish Sahgal) under Section 18 of Act No. 13 of 1972 and order impugned dated 23.3.2023 as well as consequential order impugned dated 25.11.2023 passed by Rent Control and Eviction Officer, Kanpur Nagar in RST/02845/2019 (Jagdish Sahgal Vs. Pratipal Singh) under Section 16 (1) of Act No. 13 of 1972."

3. This Court entertained the matter on 19.1.2024 and granted interim protection to petitioner. This Court vide subsequent order dated 30.8.2024 directed the learned counsel for the respondent to file counter affidavit accordingly parties have exchanged their pleadings.

4. Learned Senior Counsel for the petitioner submitted that revision filed by petitioner has been rejected only on the ground that order declaring vacancy was not challenged by tenant/ petitioner, as such, he has no right to challenge the release order which is wholly illegal in view of ratio of law laid down by Hon'ble Apex Court in the case reported in 2005 (1) ARC 877 Achal Mishra Vs. Rama Shankar Singh and Others. He further submitted that Rent Control and Eviction Officer as well as District Judge have recorded perverse finding, as such, the same cannot be sustained in the eye of law. He further submitted that information of vacancy cannot be given under Section 15 (1) (2) of U.P. Act No. 13 of 1972 but the same was not taken into consideration while passing the impugned orders. He submitted that building was assessed for the first time in the year 1976 by Municipal Committee through resolution dated 29.3.1976 but the same was not taken into consideration while passing the impugned orders.

5. Learned counsel for the respondent submitted that Aniket is servant/ employee of petitioner and petitioner has made attempt for allotment of the shop through his servant/ employee. He submitted that in pursuance of the order of this Court, the prescribed authority has held that provisions of U.P. Act No. 13 of 1972 are applicable in the instant matter. He submitted that son and daughter were unemployed, as such, there was bonafide need of the respondent. He submitted that Rent Control and Eviction Officer has recorded finding for declaring vacancy and holding that petitioner is an illegal occupant. He submitted that District Judge has rightly held that without challenging the order dated 23.3.2023 declaring the vacancy, petitioner has no right to challenge the order dated 25.11.2023, as such, revision was not maintainable. He submitted that revision was filed with delay without filing application under Section 5 of Indian Limitation Act, as such, revision has rightly been dismissed under impugned order dated 1.1.2024. He submitted that case law cited by learned counsel for the petitioner is not applicable in the facts and circumstances of the instant matter, as such, instant petition is not maintainable and liable to be dismissed.

6. I have considered the arguments advanced by learned counsel for the parties and perused the records.

7. There is no dispute about the fact that Rent Control and Eviction Officer vide order dated 23.3.2023 delcared vacancy of the shop in question and vide subsequent order dated 25.11.2023 released the shop in question in favour of respondent. Petitioner challenged the orders dated 23.3.2023 and 25.11.2023 under Section 18 of the U.P. Act No. 13 of 1972 which has been dismissed as not maintainable under impugned order dated 1.1.2024.

8. The controversy involved in the matter is as to whether the revision filed by petitioner under Section 18 of U.P. Act No. 13 of 1972 against the order declaring the vacancy as well as order releasing the shop in question can be dismissed as not maintainable.

9. The Apex Court in the case reported in Achal Mishra (Supra) has held that order notifying the vacancy alongwith final order of allotment can be challenged in revision together. Paragraph Nos. 13 and 14 of the judgement of Hon'ble Apex Court in the case of Achal Mishra (Supra) will be relevant for perusal which are as under:- "13. It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision making in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy' s case, which has disapproved the ratio of the decision in M/s Tirlok Singh and Co., cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy' s case and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Smt. Kunj Lata vs. Xth Additional District Judge, Kanpur Nagar and others (supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies.

14. We are, therefore, satisfied that the High Court was in error in allowing the Writ Petition solely on the ground that the landlord had not challenged the original order notifying the vacancies then and there. The decision of the High Court in the Writ Petition, therefore, requires to be set aside and the Writ Petition remanded to that Court for a fresh hearing and disposal in accordance with law, including the question whether the order notifying the vacancy was proper. It would also be necessary for the High Court to consider the effect of the cancellation of the order in favour of Respondent No.2 considering the nature of the allotment made in his favour, even assuming that the High Court does not find any reason to interfere with the order notifying the vacancy or with the order making the allotment. The appeal is hence allowed. The judgment of the High Court in the Writ Petition filed by the allottees is set aside and the Writ Petition is remanded to the High Court for a fresh disposal in accordance with law and in the light of the observations contained in this judgment. The High Court, it is hoped, will expeditiously dispose of the Writ Petition afresh pursuant to this order of remand, in the circumstances of the case preferably within a period of six months of the receipt of a copy of this Judgment."

10. Considering the ratio of law laid down by Apex Court in the case of Achal Mishra (Supra), the dismissal of petitioner's revision as not maintainable against the final order of notifying the vacancy as well as order of release is wholly illegal accordingly impugned revisional order dated 1.1.2024 passed by District Judge, Kanpur Nagar in case No. 4 of 2024 is set aside.

11. The instant petition is allowed in part and case No.4 of 2024 is restored to its original number. The revisional Court shall decide the aforementioned revision afresh on merit after affording opportunity of hearing to both the parties expeditiously preferably within period of three months from the date of production of certified copy of this order before him. Order Date :- 12.8.2025 Vandana Y./ Neetu VANDANA YADAV High Court of Judicature at Allahabad