A.K. Yog, J.
1. Present petition arises out of the impugned Judgment and order dated 11.1.2002, Annexure-1 to the petition, whereby the prescribed authority, rejected objections filed by the tenant-petitioners (paper No. 28 and 9C) primarily on the ground that property has been declared as an evacuee property after notice to the parties in question on 25.1.2001 and 19.3.2001 under Section 23 of the Act (Annexures-5 and 6 to the petition). Without entering into merit or demerits of the proceedings under got initiated apparently at the behest of these present petitioners by ensuring certain complaints by proxy, this petition can be disposed of on a short point as discussed hereinafter.
2. Admittedly shop in question was let out by one Ram Prasad (since deceased) through legal representative respondent No. 2 in present petition to the petitioner one Late Hakim Imdad Hussain (since deceased) through legal representative present petitioners. A release application dated 13.2.1989 under Section 21(1)(a) of the Act was filed, parties were afforded opportunity to plead their cases, file evidence in support thereof. The release application was allowed on 9.8.1991. An appeal under Section 22 of the Act was filed by the tenant. At one stage the said appeal was allowed. Then a Writ Petition No. 6913 of 1993 filed by the landlord which was also allowed vide judgment and order dated 21.4.2000 and the matter was remanded for deciding afresh. Finally the rent appeal under Section 22 of the Act was dismissed on 16.12.2000. The present petitioner challenged the said judgment and order dated 16.12.2000 by filing W.P. No. 1001 of 2001, Smt. Shamim Begum and Ors. v. Prescribed Authority, Bareilly and Ors. The said writ petition was heard and decided after hearing learned counsel for the parties by learned single Judge vide Judgment and order dated 10.1.2001. The relevant extract of the said judgment reads :
The learned counsel for the petitioner further urge that certain subsequent events have taken place and therefore, the order of release which was passed in the year 1991 shall not hold good. This aspect of the matter was considered by the Apex Court in the case of Kamleshwar Prasad v. Pradumanju Agarwal, 1997 (1) ARC 627, in which it was held that the order of the appellate authority is final and the said order is a decree of the civil court and a decree of a competent court having become final cannot be disturbed either under Article 226 or 227 of the Constitution of India and subsequent events cannot be looked into by writ court.
In view of the above decisions I feel that it is not a fit caserequiring interference under Article 226 of the Constitution of India. The concurrent findings recorded by the courts below do not suffer from any infirmity. The writ petition is accordingly dismissed.
After passing the said order Sri Pramod Kumar Jain learned counsel for the petitioners urged that some reasonable time may be allowed to the petitioners to make alternative arrangement and to vacate the disputed accommodation which has been released. Sri Pankaj Naqvi learned counsel for the respondent has no objection to it, Taking into consideration the facts and circumstances of the case. I feel that it would be in the interest of Justice if the petitioners-tenant are allowed time to vacate the disputed accommodation positively by 15th October, 2001. During this period of extension from 1st January, 2001 to 15th October, 2001. the petitioners shall pay the enhanced rent/damages for the period aforesaid at the rate of Rs. 130 per month. This amount shall be deposited by the petitioners in advance by 31st March. 2001.
In case the petitioners do not deposit the amount aforesaid by the date fixed and do not deliver the vacant possession of the premises in question by 15th October, 2001, the landlord shall be entitled to enforce the order of release according to law.'
3. In spite of time being prayed on behalf of petitioners through their counsel and having been allowed by the learned single Judge to the effect that the disputed accommodation be released in favour of the landlord on certain terms and conditions contained in the aforesaid judgment and order dated 10.1.2001, the said Judgment of the High Court was sought to be challenged by filing S.L.P. No. 4989 of 2001. Shamim Begum and Ors. v. Bishambhar Nath and Ors., and the same was dismissed by the Supreme Court of India under following order :
'On the application of learned counsel for the petitioners, the special leave petition is dismissed as withdrawn.'
4. After praying for time before the High Court on certain terms and conditions, it did not behove of the petitioners to challenge the same before the Apex Court, in my opinion, it amounts to betray the trust reposed by the client and committing breach of the assurances on the basis of which Court changed course of action and deprived the landlord from putting the order of release in execution. Secondly the tenant petitioners were required to deposit certain amount of rent as mentioned in the judgment and order dated 10.1.2001 within one month in advance by 31.3.2001.
5. There is nothing in the present petition or in the two supplementary-affidavits to indicate that such an amount has been deposited till date. However, petitioner No. 3 Arif Hussain, identified by Sri W.H. Khan, learned counsel for the petitioners, is present in the Court, who had made a statement that advance rent was paid to the landlord who executed a receipt. The date of the receipt has not been disclosed nor the original receipt has been disclosed before the Court. Apart from it, there is no averment that advance amount of rent was paid and landlord executed receipt thereof. Had this been a fact, which ought to have come in the writ petition and/or in the two supplementary affidavits filed from time to time which showed the petitioners had ample time to bring all these facts to show equities in his favour.
6. Coming to the Impugned order dated 11.1.2002/Annexure-1 to writ petition, it will be seen that main objections of the petitioners to register the eviction proceedings under Section 23 of the Act has been the proceedings and the order dated 15.10.2001 Annexure-8 to the petition under the Administration of Evacuee Property Act. From the documents annexed with the petition relating to the evacuee proceedings it is clearthat complaints regarding two shops in question being an evacuee property have been procured by the present petitioners by proxy. It is curious and interesting to note that notice etc. by the concerned authorities who allotted the shop in question, to be an evacuee came into existence after the High Court judgment and order dated 10.1.2001 Annexure 5 to the writ petition and 25.1.2001 was the date of issuing notice by the custodian to the petitioner and the landlord respondent No. 3 before initiating proceedings to hold the property as a deemed evacuee property. Annexure-6 to the petition is the notice as a reminder dated 19.3.2001 to the landlord.
7. Learned counsel for the petitioner, Sri W.H. Khan expresses his inability to place the paper-book of the special leave petition filed before the Supreme Court which was required by the Court to ascertain the grounds and facts contained in the special leave petition, i.e., whether the petitioner disclosed the factum of evacuee proceedings or not? The application for obtaining possession under Section 23 of the Act was initiated on the basis of the application dated 16.1.2001 or not?
8. The facts emerging from the record go to show that evacuee proceedings had come into existence, of which petitioners were fully aware much before the said special leave petition dismissed on 10.8.2001. If the petitioners were acting bona fide and contesting the case with clean hands, they ought to have disclosed this fact in the special leave petition before the Apex Court so that matter would have been determined there itself instead of withdrawing their special leave petition. This shows that petitioners themselves did not press their objections regarding property being evacuee so as to get rid of the High Court judgment and order dated 10.1.2001 and allowed the same to become final between the parties. That being so, the order of release having become final after getting seal of the Apex Court cannot be allowed to be rendered a waste paper particularly on the basis ofproceedings having been initiated just after passing of the High Court judgment which suggested that these proceedings have got initiated maliciously.
9. In the release application (copy of which has been annexed as Annexure-1 of the earlier Writ Petition No. 1001 of 2001) and the written statement filed by the petitioners (Annexure-2 to the said Writ Petition No. 1001 of 2001) the landlord-tenant relationship has been unequivocally admitted and an agreement was executed after shop was allotted to the petitioners has also been admitted. If the custodian wants to take possession on the basis of his order dated 15.10.2001, that will be a matter between landlord and custodian. Even otherwise order dated 15.10.2001 on which all emphasis is being laid on behalf of the petitioner, is an appellable order under Section 24. Administration of Evacuee Property Act, 1950 read with Rule 31 of the Administration of Evacuee Properly (Central) Rules, 1950.
10. I have gone through the various notices and particularly the order dated 15.10.2001 Annexure-8 to the petition but I find no material to show that shop in question was recorded as evacuee property in the basic record of property to be maintained in the property section, of the Evacuee Department as required under Rule 33. The learned counsel for the petitioners also failed to point out the details of Form No. 11 and the serial number where shop in question is registered as an evacuee property.
11. Sri Pankaj Naqvi, learned counsel for the contesting respondent drew notice to this Court to Section 7A of the Administration of Evacuee Property Act, 1950 and submitted that no property could be declared as an Evacuee Property on or after 7th day of 1954.
12. Learned counsel for the petitioners in support of his case has placed reliance on the following decisions :
(1) Smt. Roori Devi V. Asstt. Custodian General and Ors.,AIR 1970 All 583 (V 57 C82),
(2) S. Thangappan v. P. Padmavathy, 1999 (Supp) CCC 545 (SC),
(3) Custodian Evacuee Prop., Punjab and Ors. v. Jafran Begum, AIR 1965 SC 169 (V 55 C 43).
13. In my opinion, in none of the decisions cited above, except in the case of Smt. Roori Devi (case) Section 7A has been considered, consequently in none of the above cases the Courts have akin to consider the effect.
14. In none of the above decisions, the question arising in the present case, namely if release order passed under the Act has been affirmed up to highest Court of the land can be forestalled by getting proceedings initiated under the Administration of Evacuee Property Act, in the facts and circumstances already enumerated above. Moreover this Court, while hearing the present writ petition is not sitting in appeal over the order passed by the custodian and where shop in question to be treated as deemed evacuee property under Section 7 or the provisions of Section 7A of the said Act, will be attracted in the facts of the instant case and will have to be decided under Administration of Evacuee Property-Act. Only, prima facie, this Court finds that there is no specific mention of serial number or the details in the Basic Property Register as contemplated under the Administration of Evacuee Property Act or to show and satisfy this Court that the shop in question that it was deliberately omitted in the future Basic Property Register.
15. As already noted above, the petitioners want relief by invoking extra-ordinary discretionary remedy under Article 226, Constitution of India. In the facts of the case, it is apparent and clear that petitioners have not honoured their assurances given to the Court while passing Judgment and order dated 10.1.2001 in the earlier Writ Petition No. 1001 of 2001.
16. In view of the above, I find no manifest error apparent on the face ofrecord to interfere with the impugned order. Petition lacks merit and accordingly dismissed in limine.
17. No order as to costs.
18. The matter is very old, hence prescribed authority is directed to proceed with the proceedings under Section 33 of the Act and pass order in accordance with law as expeditiously as possible.