- (1.) S. K. Verma. J. The present petition has been filed under Article 226 of the Con stitution of India by the petitioner claiming to be landlord of the disputed accommoda tion for issuing a writ of certiorari quashing annexure 9, order dated 20-12-1993 passed by the Rent Control and Eviction Officer I, Allahabad.
(2.) ONE Sri J. P. Joshi was tenant of the accommodation in dispute. The petitioner claimed that he had let out the accommoda tion to Sri Joshi. The petitioner filed an application for release under Section 21 of U. P. Act No. 13 of 1972 (hereinafter called 'the Act') which was allowed by the Prescribed Authority by Judgment dated 6-11-1987 passed in P. A. Case No. 34 of 1987. The petitioner claims that the possession of the accommodation was delivered to him through police in December, 1991. Respon dent No. 2 Rajendra Pratap Singh alias Neel Kanth moved an application on 9-7-1992 for allotment of the accommodation. The petitioner claims that the aforesaid application was moved in collusion with petitioner's brother Abdul Hai Khan who was wrongly shown to be the landlord. The Rent Control Inspector inspected the ac commodation on 15-10-1992. The petitioner gave photostat copy of the judg ment of P. A. case No. 34 of 1987 to the Inspector. The Inspector submitted report suggesting that parties might be summoned to file evidence in support of their respec tive cases. The Rent Control and Eviction Officer without issuing any notice or calling for any evidence from the petitioner and within two days of the Inspector's report dated 15-10-1992 passed a cryptic order dated 17-10-1992 against which the petitioner filed writ petition No. 46437 of 1992 which was allowed on 9-11-1992 directing the Rent Control and Eviction Of ficer to pass orders afresh after hearing the parties and after recording the findings regarding the matter in dispute. Meanwhile. Abdul Hai Khan claiming to be the landlord of the premises in dispute had moved an application before the Prescribed Authority under Section 21 of the Act for recalling the order dated 6-11-1987 passed in P. A. Case No. 34 of 1987. However. Abdul Hai Khan. according to the petitioner. had not moved any application for release. He had only claimed that the building was not vacant and he was the landlord. As per directions in writ petition No. 46437 of 1992, the Rent Control and Evic tion Officer passed an order on 16-8-1993 that since a recall application was pending before the Prescribed Authority in respect of order dated 6-11-1987 passed in P. A. Case No. 34 of 1987. the proceedings regarding declaration of vacancy under Section 16 (1) of the Act shall remain stayed. Against this order dated 16-8- 1993, Civil Misc. Writ No. Nil of 1993 was filed by Rajendra Pratap Singh. Respondent No. 2 against the Rent Control and Eviction Officer and the Petitioner and Abdul Hai Khan. In that proceeding, it was claimed that the property in dispute is waqf property and that the petitioner, namely, Abdul Qavi Khan,. ob tained the release order by concealing facts and that the Rent Control and Eviction Of ficer should decide the matter as early as possible. This Court vide order dated 15-9-1993 directed the petitioner of that writ petition, namely, Rajendra Pratap Singh, to move an application before the Rent Control and Eviction Officer stating all the facts and the Rent Control and Eviction Officer to take such steps and proceed in the matter of release moved by Abdul Hai Khan pend ing before the same Court to be decided expeditiously within a period of one month from the date of filing of a certified copy of the order dated 15-9-1993 in accordance with the direction given by the High Court in its order dated 9-11- 1992. The Rent Control and Eviction Of ficer then passed the impugned order dated 20-12-1993 (annexure 9) declaring vacancy and directing further consideration of release application on 30-12-1993. This order has been challenged, firstly, on the ground that the premises in dispute could not have been declared to be vacant when it had been released in favour of the petitioner vide order dated 6-11-1987. Secondly. it has been argued that even according to the case of the respondents. the application of Abdul Hai Khan for recalling the order dated 6-11-1987 was pending and no vacancy could be declared until the matter of release had been decided. Thirdly, it has also been ar gued that since vide U. P. Act No. V of 1995 which has come into force with effect from 26- 9-1-994, any building belonging to or vested in a waqf including Waqf Alal Aulad is exempted from the operation of U. P. Act No. 13 of 1972, the proceedings before the Prescribed Authority as well as the Rent Control and Eviction Officer are without jurisdiction and, therefore, also the im pugned order is liable to be set aside.
(3.) THE learned Counsel for respondent No. 2 has argued that the release dated 6-11-1987 is not enforceable as it is a collusive order and the petitioner Abdul Qavi Khan is not landlord and the requirement of Rent Control Act are to be fulfilled but the order dated 6-11-1987 was passed on the basis of compromise with the previous tenant which is liable to be set aside. I have heard the learned Counsel for the parties and have carefully perused the entire record.;