1. Heard Sri Zafar Naiyer, learned Senior Advocate assisted by Sri Somesh Khare, learned counsel for the petitioners and Sri A.N. Sinha, Sri M.K. Gupta and Sri Virendra Kumar, Advocates for respondents.
2. Sri Zafar Naiyer, Senior Advocate primarily raised an issue that main allottee namely, Sri Mohammd Nasir who was allotted premises in dispute by Rent Control and Eviction Officer's (hereinafter referred to as the "RCEO") order dated 15.05.1989 had died on 25.06.2002 and admittedly till that date or even till this date, possession was not handed over to aforesaid allottee, in these circumstances, the legal heirs of allottee, merely on the basis of allotment, will not be entitled to claim possession of property in dispute since they cannot be said to be tenant(s) of premises in dispute in view of definition of "tenant" under Section 3(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"). Therefore, the allotment letter has become inoperative and of no legal consequence after the death of allottee himself. In support of above submissions he placed reliance on this Court's decision in Satish Chandra Seth Vs. The District Judge Kanpur and others, 1978 ARC 326 and Sardar Vichattar Singh Vs. IIIrd Addl. District Judge, Kanpur and others, 1984(2) ARC 284.
3. On the contrary, the respondents stated that once order of declaring vacancy and allotment has attained finality, its effect cannot be ceased or made futile by petitioners or any other occupants simply by keeping the allottee out of possession of allotted accommodation and that too by taking recourse of ex parte order passed by this Court, in present writ petition, wherein they have not disclosed full and correct facts and also are guilty of concealment of material facts. They further submitted that an allottee is treated to be a tenant from the date of allotment and that being so on his death, his legal heirs are entitled to be treated tenant. They also submitted that legal heirs are entitled for substitution in any of the proceedings under Act, 1972 vide Rule 25 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972) and also placed reliance on Apex Court's decision in Achal Misra Vs. Rama Shanker Singh and others, 2005(1) ARC 877.
4. Having considered the rival submissions and perusing record as also the authorities cited above, I find substance in what is contended on behalf of respondents and submission advanced on behalf of petitioners, in my view, are not tenable in law and even otherwise.
5. Bereft of succession chain given by petitioners in various paragraphs of petition, suffice it to mention that an application was filed by Mohd. Naseer (respondent no. 2-since deceased and now represented by his legal heirs, respondents no. 2/1 to 2/7) in respect to House No. 89/271 under Section 16(1) of Act, 1972. The RCEO after getting inspection made by Inspector also gave opportunity to landlord, Smt. Samrun Nissan wife of Sri Nasir Ali.
6. The aforesaid application is said to have been contested by Sri Javed Warsi and Sri Irfan Hussain, persons claiming occupation of premises in dispute. However, RCEO passed order dated 15.05.1989 declaring vacancy and allotting the accommodation to Sri Mohd. Naseer. Against the allotment order dated 15.05.1989 a revision was also filed by Sri Javed Warsi who later on died. Whereafter his mother, Smt. Shahjahan Warsi was allowed to be substituted but another application for substitution filed by Irfan Hussain was rejected by Revisional Court. It is also said that petitioner no. 1, Shahwaiz Warsi contested and persuade revision throughout on behalf of his mother, Smt. Shahjahan Warsi and signed on various dates the order-sheet of Rent Revision No. 68 of 1989. The said revision was dismissed on 16.08.1995 (Annexure-17 to the counter affidavit filed on behalf of respondent no. 1), whereafter Writ Petition No. 31148 of 1995 was filed by mother of petitioners alongwith Irfan Hussain and Iqbal Fatima but the same was also dismissed on 14.03.2002.
7. It is after dismissal of writ petition, the allottee moved an application before Additional District Magistrate (City), Kanpur Nagar under Section 16(4) of Act, 1972 that he has not been able to get possession of accommodation allotted to him and prayed for granting possession. An order was passed on 20.05.2002 by ADM (City) for issuing Form "C" for giving possession to allottee, Mohd. Naseer.
8. The present petitioners claim to have filed an application under Section 16(5) for review of order dated 20.05.2002. The said application was accompanied by an stay application. It is interesting to note that the application (Annexure-36 to the writ petition) is dated 16.05.2002 while stay application is dated 23/28.05.2002 and affidavit supporting thereto is dated 23.05.2002. Obviously a review application under Section 16(5) could not have been filed on 16.05.2002, i.e., even before the passing of order dated 20.05.2002. In the said affidavit filed alongwith review application the applicants have claimed that they were never made party to the allotment proceedings at any point of time and came to know about allotment only on 30.04.2002.
9. This writ petition has been filed challenging orders dated 15.05.1989 and dated 20.05.2002 passed by ADM (City) for giving possession to allottee Sri Mohd. Naseer.
10. Sri Zafar Naiyer, learned Senior Advocate contended that firstly, when an application for review under Section 16(5) is pending, no proceedings for giving possession to allottee is permissible in law. He further contended that during pendency of this writ petition wherein an interim order was passed restraining respondents from dispossessing petitioners from premises in dispute, the petitioners have continued in possession of the said premises and in the meantime since original allottee himself has died on 25.06.2002, the allotment order itself would disappear and in place of original allottee his legal heirs cannot be substituted. They cannot claim inheritance of allotment rights. However, I do not agree.
11. From the record it does not appear to have been disputed by petitioners that allotment order dated 15.05.1989 was passed after issuing notice to landlord and other occupants and giving opportunity to all the concerned parties to file their objections. The Revisional Court's order dated 18.07.1991 (page 123 of the counter affidavit filed by respondent no. 1) shows that Smt. Samrun Nissan claimed herself owner of property in question and her substitution was allowed wherein she had admitted that she participated in allotment proceedings being party therein also. Another application was filed requesting for impleadment of brothers and sisters of late Sri Javed Warsi who was one of the revisionist in Rent Revision No. 68 of 1989. This application was supported with an affidavit filed by Sri Shahwaiz Warsi, who is petitioner no. 1 in the present petition. In para 3 of the affidavit filed alongwith impleadment/substitution application (Annexure-15 to the counter affidavit of respondent no. 1) on 27.07.1994. He said that in the family of Sri Javed Warsi, besides his mother, Smt. Shahjahan Warsi, there are four younger brothers, namely, Tajvesh Warsi, Jervesh Warsi, Shiraj Warsi and one sister Km. Mahreen Warsi. They are also ordinarily residing with Sri Javed Warsi and, therefore, should be impleaded alongwith Javed Warsi's mother in pending revision. This application was rejected by Revisional Court vide order dated 23.09.1994 and while allowing Smt. Shahjahan Warsi, mother of Sri Javed Warsi to be substituted in his place, rest of persons were declined to be impleaded/substituted. The aforesaid orders have become final.
12. Besides, the aforesaid orders show that petitioners were well aware of allotment proceedings as also the allotment order dated 15.05.1989 and subsequent revision in Revisional Court. In the present writ petition however all these facts have been concealed and not disclosed by petitioners without giving any reason thereof.
13. It is true that revision was dismissed as not maintainable and said order was upheld by this Court also vide judgement dated 14.03.2002 in view of law, it then was, but petitioners' contention before this Court in present writ petition is that they were not aware of allotment proceedings before 30.04.2002 finds contradicted from aforesaid proceedings which facts have been concealed by petitioners and not disclosed in this entire writ petition. In other words, this Court has no hesitation in observing that petitioners have not approached this Court with clean hands and are guilty of concealment of material facts.
14. Be that as it may, the fact also remains that against the allotment order passed on 15.05.1989, petitioners never raised any dispute at any point of time, though as already observed, they were well aware all through about the proceedings took place in 1989 and onwards. Hence, there is no justification to interfere with the aforesaid orders now at this stage.
15. Coming to the next question that after death of original allottee his legal heirs cannot be substituted and no right survive to them, I find that Rule 25 of Rules, 1972 entitle legal heirs of any person to get substituted and to pursue the matter further after death of person who has initiated the proceedings. It is no doubt true that allotment was made in favour of Mohd. Naseer on 15.05.1989. The allotment results in deeming the allottee a tenant of allotted premises from the date the order of allotment was passed. That being so, if the original allottee, who is deemed to be tenant of building allotted to him, died, his legal heirs who normally resided with him can be substituted and pursue the matter. Such right is not dependant on the fact, whether allottee could actually get possession of allotted property or not. If such an interpretation is accepted, a wrongful occupant or unauthorised occupant may successfully deprive an otherwise valid allottee or his legal heirs from the possession of an accommodation declared vacant by District Magistrate under Section 16(1) of Act, 1972. He would be able to deprive such allottee or his legal heirs possession of property in one or the other matter and sometimes taking recourse to an ex parte interim order of a Court of law, in a proceeding initiated by such occupant himself, as has happened in the present case, where by virtue of interim order passed in revision the allottee could not get possession, thereafter pursuant to interim order passed in earlier writ petition, possession could not be given to original allottee, and now under the interim order passed on 11.06.2002 in the present writ petition, said possession has been denied.
16. Acceptance of argument of learned counsel for the petitioners would also amount to confer benefit upon such petitioners of a wrong on their part as also on account of an ex parte interim order passed by this Court. It is well settled that act of Court shall prejudice none. Actus curiae neminem gravabit is a well recognised maxim/principle of law having applied in such circumstances, time and again.
17. The authorities cited at Bar on behalf of petitioners have no application to the facts of this case.
18. However, it also cannot be disputed that an unauthorised occupant is entitled to file a review application under Section 16(5) only when an order of dispossession is passed by District Magistrate. In the earlier proceedings the order declaring vacancy and allotment was challenged, whereagainst the law as it then was that no revision is maintainable though a Larger Bench of Apex Court subsequently in Achal Misra (supra) has held that there are two options to a person aggrieved by orders notifying vacancy, i.e., either he can challenge the order in a writ petition or can challenge the same after final order of allotment is passed and he can even otherwise come to the High Court directly also. In the present case since the challenge against allotment order has already failed in earlier proceedings, and petitioners are guilty of concealment of material facts also, by not disclosing all these facts in writ petition, which has come on record only by way of counter affidavit filed by respondent no. 1, in the peculiar facts and circumstances of this case, I find that it is not a fit case wherein this Court must exercise its extraordinary equitable jurisdiction under Article 226 of the Constitution in favour of petitioners.
19. The writ petition is accordingly dismissed with cost of Rs. 2000/-.
20. Interim order, if any, stands vacated.
Order Date :- 13.8.2012 AK