1. Heard Sri Rajendra Kumar, learned counsel for the petitioner and Sri Shesh Kumar, learned counsel for the respondents.
2. Both these writ petitions arise out of same order dated 18.6.1999 hence are being decided by this common judgment. The facts have been taken from writ petition no.31125 of 1999 though learned counsel for the parties agree that the facts and law and legal issues involve in both the matters are same.
3. This is a writ petition under Article 226 filed by six petitioners who are members of a family and legal heirs of Sri Har Krishna Das, who initially commenced proceedings resulting in impugned order dated 18.6.1999 (Annexure 3 to the writ petition) passed by Rent Control and Eviction officer, Varanasi (hereinafter referred to as "RCEO") in case No.15 of 1992 (Har Krishna Das Vs. Govind Das Maheshwari) and 16 of 1993 (Har Krishna Das Vs. Chunni Lal) in purported exercise of power under Section 16 (4) of Act 13 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972").
4. The facts, in brief, giving rise to the present dispute are as under:
5. The disputed accommodation is a House No.K-33/15, Bhat Ki Gali, Varanasi. Har Kishan Das moved an application on 27.6.1960 for allotment on the ground that accommodation is likely to fall vacant. The application was contested by Smt. Champa Bahu claiming herself to be landlord. The accommodation was inspected and report was submitted by Inspector on 1.7.1960 that accommodation is likely to fall vacant and would be open for allotment. The inspection was treated inadequate and another detailed enquiry was conducted. Thereafter another report was filed on 20.7.1960 stating that dispute regarding Shebaitship of endowment which own the accommodation is pending but the accommodation having fallen vacant, vacancy may be notified for allotment.
6. Smt. Champa Bahu sought release of accommodation through her application dated 13.8.1960. The Additional District Magistrate, Varanasi vide order dated 9.12.1960 allotted the accommodation consisting of three rooms on the ground floor and two rooms in the upper floor in the building in dispute to Sri Har Kishan Das along with one big hall and four rooms on the ground floor of adjoining house no.33/16 situated at Bhat Ki Gali, Varanasi.
7. The order was modified on 28.12.1960 confining the allotment to Sri Har Kishan Das in respect to House No.K33/15 i.e. the accommodation in dispute in the present case consisting of three rooms in the ground floor and two rooms on the upper floor.
8. Smt. Champa Bahu preferred an appeal before State Government under Section 7-F of U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as "Act 1947") which was dismissed on 25.5.1961. The matter was then taken to this Court in Writ Petition No.2397 of 1961 filed by Smt. Champa Bahu which was dismissed on 23.8.1961.
9. Thereafter, on 26.3.1963, an order was passed under Section 7-A (4) of Act, 1947 requiring Smt. Champa Bahu and one Chunni Lal to vacate and deliver possession of disputed premises to allottees failing which proceedings under Section 7-A(3) of Act, 1947 would be taken. Thereagainst also Revision No.32 and 33/AC-Varanasi was preferred. The Revisional Court namely Commissioner, Varanasi by order dated 11.4.1963 remanded the matter to Additional District Magistrate, Varanasi.
10. On remand the Additional District Magistrate again passed an order confirming allotment order and holding that Smt. Champa Bahu and her Pairokar are occupying the premises in question unauthorizedly and unlawfully therefore, let an order under Section 7-A(1) be issued against them.
11. Again a notice under Section 7-A of Act, 1947 was issued which was challenged by filing an objection which was rejected by Additional District Magistrate, Varanasi on 18.12.1969. The matter was again taken up with the Commissioner in a revision but this time it was dismissed by Commissioner's order dated 15.12.1975.
12. The petitioner-allottees having not been given possession of allotted accommodation in question, applied for issuance of Form-D under Rule 14 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as "Rules, 1972") framed under the Act, 1972, which was issued on 1.1.1976 under Section 16 (4) read with Rule 14 by Additional District Magistrate (Civil Supplies).
13. Again a writ petition no.51 of 1976 was filed, which was dismissed on 29.1.1979 and dismissal of writ petition attained finality after dismissal of Special Leave Petition by Apex court on 28.7.1992. The petitioners now again requested Additional District Magistrate, Varanasi to execute Form-D by moving application dated 5.1.1993. This application was contested by respondents and this time RCEO, vide impugned order dated 18.6.1999 has rejected petitioner's application on the ground that original allottee, Har Kishan Das, having died, his legal heirs cannot be treated to be tenants since possession of property was not given to the allottee. Therefore, they do not answer the definition of "tenant" under the Act, 1972. He held that as soon as original alloottee died, his requirement of allotted building would come to an end. The right of allotment is a personal right and non-transferable hence legal heirs of Har Krishan Das would not be entitled to get executed allotment of accommodation in question made as long back as in 1960, even if for whatever reasons, not attributable to original allottee. He thus denied possession of property to be handed over to the allottee. He has also held that orders passed under Act, 1947 would not be executable and shall not continue under Act, 1972 so as to be executed under Section 16(5) of Act, 1972.
14. Sri Rajendra Kumar, learned counsel for the petitioners submitted that as soon as allotment is made, the allottee steps into the shoes of tenant and his right to get possession of allotted accommodation cannot be defeated for the reason that landlord or others, acting at the instance of landlord, have been successful in denying from taking possession of allotted accommodation. He further contended that RCEO, in passing the impugned order, has completely misdirected himself by not considering effect of Section 43 of Act, 1972 in respect to the proceedings undertaken under the old Act, 1947 which was repealed by Section 43(1) of Act, 1972 but there are certain savings by sub-section (2) of section 43.
15. Per contra Sri Shesh Kumar, learned counsel appearing for respondents contended that since possession was never taken by original allottee, he did not answer the definition of 'tenant' under the statute and after his death, possession cannot be taken by his legal heirs or representatives and supported the impugned orders for the reasons stated therein.
16. I have heard learned counsel for the parties and perused the record.
17. A perusal of Section 43(2) of Act, 1972 clearly shows that any order passed under Act, 1947, which has attained finality, shall be enforced, whenever necessary in like manner as if it was an order of Competent Authority under the corresponding provisions of Act, 1972. Section 43(2)(t) reads as under:
"any decision of the District Magistrate, the Prescribed Authority, the District Judge, the Commissioner or the State Government under the foregoing clauses may be enforced, whenever necessary in like manner as if it were an order of the Competent Authority under the corresponding provisions of this Act."
18. A bare perusal of above makes it clear that orders passed under Act, 1947 are not redundant but shall be kept and enforced under the corresponding provisions of Act, 1972. Therefore, a decision made under Act 1947 even if not given effect to, can be enforced under Section 16(4) and (5) of Act, 1972.
19. The RCEO though has passed a well long order but unfortunately has not even touched Section 43 of Act, 1972 at all and therefore, has committed patent error in taking the view that orders under Act, 1947 shall not be enforced under Act, 1972.
20. Now coming to the question that original allottee, if not able to obtain possession, whether his legal heirs can enforce allotment order seeking possession of allotted accommodation. This aspect has been considered by this Court in Writ Petition No.23970 of 2002 (Shahwaiz Warsi & Ors. Vs. Smt. Samrun Nissan & Ors.). Relying on Apex Court's decision in Achal Misra Vs. Rama Shanker Singh & Ors. 2005(1) ARC 877, this Court has held that an allottee is treated to be a tenant from the date of allotment and on his death, his legal heirs are entitled to be treated as 'tenant'. This Court in paras 15 and 16 of the judgment in Shahwaiz Warsi & Ors. (supra) has held as under:
"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."
21. I am informed that against the aforesaid decision a S.L.P. (Civil) No.28419 of 2012 (Shahwaiz Warsi & ors. Vs. Samrun Nissan & Anr.) has been filed but no order has been passed therein.
22. Be that as it may, it is well settled that mere filing of S.L.P. would not deprive a judgment of this Court from the status of a binding precedent and therefore so long as judgment dated 13.8.2012 in Shahwaiz Warsi & Ors. (supra) is not reversed, this Court has no reason not to follow law laid down therein. The exposition of law laid down therein squarely apply in this case.
23. In view thereof the impugned order dated 18.6.1999 cannot sustain.
24. In the result, both the writ petitions are allowed. The order dated 18.6.1999 impugned in both the writ petitions, passed by RCEO, is hereby quashed. RCEO is directed to consider petitioner's application and pass a fresh order within three months from the date of production of a certified copy of this order before him.
25. No costs.
Order Date :- 10.10.2012 KA