N.L.Ganguly - (1.) THIS writ petition is directed against an order of the VI Addl. District Judge, Kanpur Nagar in a Rent Revision filed by the petitioner. The perusal of the revisional order shows that the sole submission before the court below was that the application of the landlord for release of the accommodation in question should have been decided first and thereafter the proceedings for allotment should have taken place. The submission was that the Rent control & Eviction Officer had declared the vacancy and without finally adjudicating the release application, proceeded to allot the accommodation in question.
(2.) THE learned counsel for the petitioner submitted that Sartaj Khan, who claimed to be Mutwalli of the building in question has no authority to enter into any agreement with any other person nor consent for allotment of the accommodation in favour of any other person. THE argument was that father of Sartaj Khan is still alive and during the life time of the father of Sartaj Khan, Sartaj Khan could never become the Mutwalli. It has been stated in the impugned order that the property in question admittedly a Sunni Central Waqf property and the R.C.E.O. by order dated 1-1-93 had declared that vacancy for the accommodation in question under section 16 (1) (a) of the Act No. 13 of 1972. THE revision was dismissed by the learned Addl. District Judge on the ground that the property in question was declared to be vacant, according to law. THE photostat copy of the certificate dated 8-7-85 is on record of the said court as paper No. 5 which shows that the name of Sartaj Khan is recorded as Mutwalli of the property in question. Before this Court, the learned counsel for the petitioner, brought to the notice of the court number of documents namely Annexures 7, 8. and 9 to the writ petition receipts of Nagar Mahapalika Kanpur which shows that the taxes were recovered from Smt. Johra Khatoon through the petitioner Mohd. Qamar Khan. The copy of the receipt of water tax has also been annexed which shows the name of Smt. Johta Khatoon is recorded. A copy of the plaint filed by Sartaj Khan in Suit No. 110/83 in the Court of 1st Civil Judge, Kanpur, is on record, as Annexure No. 6. The prayer in the plaint shows that the suit for declaring the property in question as waqf property which could not have been purchased by the opposite party. The learned counsel further submitted that these documents were on record and the arguments were advanced before the revisional court also in this aspect urging That the title of the opposite party Sartaj Khan itself was under adjudication and the property in fact belongs to the petitioner and is not a waqf property. The perusal of the judgment of the revisional court do not show that there was any such submission before the court nor these arguments were considered in the judgment impugned. In view of settled law that the factual aspect of a case which the petitioner wants to argue in a petition under Article 226 of the Constitution could only be entertained and considered provided the arguments were advanced before the court below and the court below considered the same in his judgment. The view of the Court is that if such arguments are said to have been advanced and not mentioned in the judgment, that also not to be entertained in a proceedings under Article 226 and the proper course would be to file a review application before the court itself before whom such documents were on record and arguments advanced. It is for the petitioner to bring to the notice of the court who had decided the matter that such and such document was on record and arguments advanced, and in the review application the person may request for reconsidering the said documents and decided the matter after recalling the order in question. This proposition of law is well settled. After hearing the learned counsel for the petitioner, I am of the view that this Court is not to entertain the arguments about the factual aspect of the writ petition which could have and should have been argued before the court below. Since the learned counsel for the petitioner submits that these arguments were actually advanced (before the court and the documents were referred to it and the court below has not considered it, it was open for him to have moved an application for review and recalling of the order passed by him, He has rushed to this Court with a prayer for quashing of the order. I am of the view that it is not possible to quash the order in question. However, in view of the facts and circumstances of the case, if the petitioner is so advised, he may move an application before the court below before actual order for allotment is passed for review or recalling of the order. That all these facts and documents were on record and brought to the notice of the court and the court had erroneously not mentioned the arguments in the judgment. It is for the court itself to consider the said arguments and decide the matter afresh if it is of the view that the factual aspect submitted by the petitioner is correct.
(3.) IN these cirsumstances, the petition is dismissed, with the above observations. A copy of this order be given within three days on payment of usual charges. Petition dismissed.;