ACHAL MISRA Vs. RAMA SHANKER SINGH

JUDGEMENT

(1.) Dr. C.P. Tandon, had a house in Lucknow. It was two storeyed. It had a plinth area of 3500 square feet. It was situate on a plot of land admeasuring 8892 square feet. Dr. C.P. Tandon died on 24.08.1977. The house devolved on his son K.K. Tandon. K.K. Tandon died in London on 10.06.1978 while having treatment for his illness. The building was inherited by his wife, Asha Tandon. Asha Tandon thus became the owner of the building.

(2.) On 28.08.1978, respondent No. 1 before us, made an application for declaration of vacancy and allotment of the suit building to him as a tenant under Section 12, read with Section 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act). The Inspector, an officer under the Act submitted a report on 11.09.1978 to the effect that the first floor of the building may be considered to be vacant under Section 12 of the Act, though a person claiming to be a caretaker was found therein. It is seen that the Inspector, while making the report, did not comply with the requirements of Rule 8(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter called the Rules). On 15.9.1978, the Additional District Magistrate, the Authority under the Act, on the basis of the report issued a notice inviting objections for allotment of the first floor. On 09.10.1978, the father of Asha Tandon, the inheritor of the house, filed objections. He contended that no part of the building was vacant and the owner, Asha Tandon, was entitled to notice in terms of the Act and the Rules and no notice had been issued to her. On 23.10.1978, the Additional District Magistrate, declared vacancy not only in respect of the first floor but also in respect of the ground floor in terms of Section 12 of the Act. This order under Section 12 of the Act was not challenged then and there by Asha Tandon, the owner. The father of Asha Tandon filed an application seeking time to file objections against the proposed allotment of the building on the ground that at the relevant time, the landlord, Asha Tandon, was in London and there was no notice to her as mandated by the Act and the Rules. On 08.11.1978, the Additional District Magistrate rejected the application for time filed by the father of Asha Tandon. He also proceeded to pass another order allotting the ground floor to respondent No. 1, but without fixing the presumptive rent as required by the Act. Two days later, he passed another order allotting the first floor in favour of respondent No. 2, who had come to the town as a Munsif Magistrate, in view of that officers urgent need as a Government official for accommodation, but again, without fixing the presumptive rent as required by Section 16(9) of the Act. These orders of allotment were challenged by Asha Tandon and her father in revisions filed under Section 18 of the Act. On 23.03.1979, the Additional District Judge allowed the revisions holding that the order of the Additional District Magistrate declaring vacancy was patently erroneous since as per the report of the Inspector, the ground floor of the building was not vacant. That, even as regards the first floor, it could not be deemed that there was a vacancy in the face of the report and hence no question of allotment arose. The Additional District Judge also found that there was no compliance of Rule 8(2) and Rule 9(3) of the Rules and that the orders of allotment were liable to be set aside. He thus set aside those orders. Respondent Nos. 1 and 2 herein, the allottees, filed a Writ Petition in the High Court of Allahabad challenging the order of the Additional District Judge. On 16.05.1991, while the Writ Petition was pending, Asha Tandon sold the building to the present appellant. The appellant moved for vacating the interim stay granted by the Allahabad High Court on the ground that respondent No. 2, the Magistrate, who was the allottee of the first floor, had been transferred from Lucknow to Deoria and was no more entitled to continue as an allottee. A further ground was that respondent Nos. 1 and 2 had not paid any rent and were defaulters and not having paid a single pie to the landlord all these years, were not entitled to have the benefit of a stay of eviction from the High Court. Meanwhile, on 04.05.1994, the Additional District Magistrate taking note of the fact that respondent No. 2, the Magistrate, to whom the allotment was made in his capacity as an official, was transferred to Deoria and had been staying in Deoria in a Government allotted quarters, cancelled the allotment of the first floor to him. Thus, though the vacancy of the first floor was declared no further step was taken regarding that floor. The appellant, therefore, approached the High Court seeking a clarification that the interim order would not stand in the way of considering the claim for release of the first floor by the appellant. By order dated 20.07.1995, the High Court clarified that its interim order dated 10.04.1979 would not stand in the way of considering the release of the first floor to the appellant. According to the appellant, in spite of this clarification, no steps were taken regarding the first floor allegedly because of the improper influence exercised by respondents.

(3.) Ultimately, the High Court allowed the Writ Petition and set aside the order of the Additional District Judge on the sole ground that the order declaring vacancy dated 23.10.1978 not having been challenged by the Asha Tandon, the owner of the building, then and there, that order had attained finality and that order could not be challenged in the subsequent revision against the order of allotment. Even if this were the position, the High Court failed to see that at least as regards respondent No. 2 herein, the effect of the subsequent cancellation of the allotment ought to be considered, in the context of the claim of the owner of the building for release of the building. Thus, clearly the judgment of the High Court suffers from non application of mind.