JUDGMENT A.K. Yog, J.
1. One Ganesh Shankar Rawat, claiming to be the owner of premises No. 105/28, Prem Nagar, Kanpur Nagar filed release application under Section 16 (1) (b) of U.P. Act No. XIII of 1972 before Delegated Authority/Rent Control and Eviction Officer, Kanpur Nagar on 4.2.1992/Annexure-3 to the writ petition, on the ground that he was in possession of the aforesaid entire premises except one tin shed room with open terrace, which was earlier in the tenancy of his tenant Sahdeo Prasad, who died about four years prior to the filing of the present release application leaving his widow, Smt. Bitto Devi who lived with her daughter before shifting to her own house plot No. 65 Sanjay Gandhi Nagar Naubasta, Kanpur, about four months prior to the filing of the release application. In para 4 of the release application, it is also contended that the said Bltto Devi had handed over unlawfully the possession of tin shed room with open terrace to one Murarl Lal without the consent of the owner (Ganesh Shankar Rawat-respondent No. 3) and that said Murari Lal illegally occupied the accommodation in question without any allotment. It is also stated that the owner of the premises had filed a suit before the Civil Court for eviction of the said Murarl Lal from the accommodation in question against certain portion of the said premises other than the accommodation in question pending in the Court of A.C.M.M. IXth, Kanpur.
2. It may be noted that Murari Lal died during the pendency of the release proceedings and hence legal representatives/heirs of said Murari Lal were substituted, petitioner Nos. 2, 3, 4. 5 and 6 and proforma respondent Nos. 4 and 5 were substituted as legal representatives/ heirs of said deceased Murari Lal. Petitioner No. 1 is Murari Lal, even though he is dead.
3. The Rent Control Inspector submitted report dated 14.2.1992 in pursuance to the directions given by the Delegated Authority (Annexure-4 to the petition). The Rent Control Inspector found that Murari Lal was in possession of the accommodation in question. He also noted that earlier Sahdeo Prasad was the tenant and after having died, his wife Bitto Devi continued to reside therein as tenant. The Rent Control Inspector also noted vide para 3 of his report that Bitto Devi had handed over possession to said Murari Lal being in collusion with each other and that Bitto Devi had removed all her goods and shifted to her own house at house plot No. 65 Sanjay Gandhi Nagar Naubasta. Kanpur Nagar and ever since the said Murari Lal was in unauthorised possession of the accommodation in question. The aforesaid Information solicited by the Rent Control Inspector was supported by the statement of one Bishnu Sarup Saxena r/o 105/3B, Prem Nagar, Kanpur Nagar. The Rent Control Inspector, vide, Para 4 of his report also noted that Murari Lal claimed to be co-owner of the house in question.
4. Murari Lal thereafter filed his objection dated 7.9.1992/Annexure-5 to the writ petition. There is no pleading in the petition, that no counter reply to the said objection filed by Murari Lal, was filed by Ganesh Shankar Rawat (respondent No. 3). Learned counsel for the contesting respondent/Caveator-applicant Sri Atul Dayal, however, made a statement that a counter reply was filed denying the allegation of Murari Lal that he was owner of the house in question. Sri Atul Dayal further informed this Court that a regular suit for eviction of Murari Lal was filed by Ganesh Shankar Rawat, respondent No. 3 on the ground that he was merely a licensee of some of the portions of the premises (apart from the accommodation in question).
5. At this very juncture, this Court must make a note of the fact that the petitioners have not approached this Court with clean hands, inasmuch as the petitioners deliberately withheld the relevant facts by concealing them as well as the documents, i.e., counter reply filed by Ganesh Shankar Rawat against his objection. On the other hand, they deliberately made an attempt to represent as if the said objections were uncontroverted on relevant issues. This is nothing but grossest abuse of process of Court, particularly while invoking the jurisdiction of this Court under Article 226, Constitution of India. Sri Vijay Prakash, Advocate assisted by Sri Sanjay Kumar, learned counsel appearing on behalf of the petitioners as well as Sri Atul Dayal appearing as counsel for the Caveator/Contestlng respondent No. 3 have made a statement that regular suit has been decreed and the appeal against it by Murari Lal (since deceased through his legal representatives) was initially dismissed in default but restored and today is the date fixed for delivery of judgment as per statement of Sri Vijay Prakash, advocate.
6. The Delegated Authority, vide, its judgment and order dated June 5, 1993, declared vacancy (Annexure-2A to the petition) and thereafter allowed the release application filed by Ganesh Shankar Rawat, respondent No. 3, vide, its judgment and order dated March 8, 1994 (Annexure-2 to the writ petition).
7. Feeling aggrieved, aforementioned Murari Lal filed Rent Revision No. 46 of 1994 under Section 18 of U.P. Act No. XIII of 1972 and the same has been dismissed, vide, judgment and order dated 6.10.2001 passed by IIIrd Additional District Judge, Kanpur Nagar (Annexure-1 to the writ petition).
8. The petitioners (legal heirs of deceased Murari Lal) have filed this petition praying for issuance of a writ of certiorari to quash the aforementioned impugned judgment and order dated 6.10.2001 passed by IIIrd Addl. District Judge, Kanpur Nagar (Annexure-1 to the petition) arising out of the Impugned judgment and order dated 8.3.1994 passed by Additional City Magistrate-V/Rent Control and Eviction Officer. Kanpur Nagar (respondent No. 2), copies whereof have been filed as Annexures-1 and 2 to the petition respectively.
9. It may be noted that an amendment application has also been filed on behalf of the petitioners praying for certain amendments/ corrections in para-14 and ground No. (iii) of the writ petition by deleting words "or affidavit" and substitute them by the words "and affidavit in support thereof" in 8th and 9th lines respectively. The other prayer is to issue a writ for quashing the finding regarding status of the petitioners while passing the order of vacancy dated 5.6.1993 (Annexure 2A), The amendment application is allowed, and the petition shall be deemed to be corrected accordingly.
10. Learned counsel for the petitioners has made two fold arguments before this Court. Except the said two points, no other plea has been raised before this Court, probably realising that all other grounds contained in para 20 of the writ petition, do not indicate manifest error apparent on the face of record and that these grounds shall require appreciation of evidence, which is not normally permissible by this Court while exercising its jurisdiction under Article 226, Constitution of India.
11. Learned counsel for the petitioners is seeking to challenge, by way of amendment of the petition, the order dated 5.6.1993 declaring vacancy (Annexure-2A to the petition). The petitioners cannot be permitted to challenge the said order declaring vacancy which was passed way back in June, 1993. There is no explanation for the delay in challenging the said order. The petitioners are guilty of laches. It is obvious that this order is sought to be challenged by way of amendment of the petition as an afterthought. This Court cannot lose sight of the fact that the order of declaring vacancy has been challenged by the petitioners by approaching this Court under Article 226, Constitution of India. There is no pleading whatsoever that petitioners were given no advice to challenge it. There is another aspect of the matter, namely, matter of release under Section 16 of the Act is only between the Rent Control Authority and the landlord/owner. The erstwhile tenant or unauthorised occupant, after vacancy has been declared, has no concern or focus standi to contest the release matter.
12. In view of the above, it is abundantly clear that petitioners have no locus standi to challenge the order of release dated 8.3.1994 passed by Delegated Authority (respondent No. 2) and subsequently affirmed by the Revisional Court (respondent No. 1) vide, its judgment and order dated 6.10.2001. As far as the question of status of deceased Murari Lal (now represented through his legal representatives-petitioner Nos. 2 to 6 and proforma respondent Nos. 4 and 5) is concerned, the facts of the case speak for themselves. It is not disputed by the petitioners that Sahdeo Prasad was erstwhile tenant and Bitto Devi being his wife became tenant but shifted to her own house No. 65 Sanjay Nagar, Kanpur Nagar. There is not even an iota of evidence that Bitto Devi had ever paid rent to Murari Lal. Murari Lal has no allotment order in his favour and thus a trespasser who took law in his own hand and occupied the accommodation in question. Admittedly, decree in Original Suit No. 1158 of 1987 is in existence against the said Murari Lal.
13. In view of the above, Murari Lal (since deceased) through his legal representatives, namely, the present petitioner Nos. 2 to 6 are not entitled to Invoke extraordinary discretionary jurisdiction under Article 226, Constitution of India.
14. Apart from it, the Revisional Court has referred to a decision in the case of Ashok Kapil v. Sana Ullah (dead) and others, 1997 (1) AWC 94 (SC) : 1996 (2) ARC 625 (paras 4 to 11), wherein the Apex Court held that in case rent control proceedings were Initiated by the District Magistrate, when the premises had roof, the District Magistrate shall not be ceased to have jurisdiction to pass an allotment order in respect of it, even if it becomes subsequently a roofless structure. The ratio of the decision is - 'hence in the normal course respondent cannot secure assistance of a Court of law for enjoying the fruit of his own wrong,' The reasoning of the said decision is that in case an accommodation is being removed or damaged by a voluntary act of the owner/landlord, the same cannot be permitted to snatch and deprive the Rent Control Authorities to allot an accommodation. However, the said decision will not apply to the facts of a case where roof of a certain building falls down of its own. The petitioners concede that this case is against them. I find no manifest error apparent on the face of record in the impugned order dated 8.3.1994 passed by the respondent No. 2 and the same is also affirmed by Revisional Court's judgment and order dated 6.10.2001.
15. In view of the above, it is not a fit case in which an interference by this Court under Article 226, Constitution of India is warranted. This petition lacks merit and is dismissed in limine.
16. No order as to costs.