Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. The petitioner claims to be occupying a structure below balcony in House No. 123/376 (New) and 123/110A (Old), Gaderiyanpurwa, Kanpur Nagar since 1996 on rent at the rate of Rs. 500 per month as the tenant of respondent No. 1. The structure is bounded by iron grills with the balcony above serving as roof. He carries on the business of welding/repairing of tractor, trolleys etc.
3. The case of the petitioner is that he was a tenant and though initially there was no agreement to this effect between the parties but subsequently upon his repeated requests a written permission was granted to him to run the workshop.
4. It appears that the landlords had purchased the premises in dispute vide sale deed dated 15.5.1995. It also appears from the record that the landlord was doing the business of welding and repairing of automobile vehicles, i.e., trucks, tractors etc. in the same building and he allowed the petitioner to do the aforesaid business on commission basis in his premises in a small area below the balcony which was surrounded by iron grills.
5. At some point of time there arose a dispute between the petitioner and the landlords of the premises and as such Suit No. 313/2000 was filed by the petitioner for permanent injunction against the landlords for the relief not to evict him except in accordance with law on the allegation that the landlords wanted to throw him out without following the process of law. The suit is said to be still pending before the Civil Judge (Junior Division), Kanpur Nagar.
6. It is alleged that because of the suit the landlords got an application filed through Sri D.N. Dubey who is their servant for allotment upon which proceedings were initiated under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The report of Rent Control Inspector was sought by the Rent Control and Eviction Officer which was submitted by him on 20.7.2004 for deciding the question of vacancy.
7. The case set up by the landlord was that no agreement was entered into with the petitioner and he was not his tenant. It was averred in the affidavit filed by the landlord that the petitioner was doing his work on commission basis since 1999 and had subsequently put his lock on the grills claiming himself to be a tenant on the basis of an alleged agreement with one Sri Manish Bhatia son of Sri Shrawan Bhatia, one of the landlords. The Rent Control and Eviction Officer after hearing the parties and on the basis of evidence and record held that the alleged agreement of the petitioner with Sri Manish Bhatia regarding tenancy is unbelievable as it is not executed by the landlords or co-landlords and even if it is given credence it does not effect the question of vacancy involved in the case as the question still remains whether the petitioner was an unauthorized tenant of the disputed part of the building or not. The Rent Control and Eviction Officer by the impugned order dated 13.6.2005 declared vacancy.
8. Aggrieved, the petitioner filed Writ Petition No. 50150 of 2005 which was disposed of vide order dated 20.7.2005 with the observations that the petitioner may challenge the order of vacancy in revision. It appears that in the meantime the premises in question was released in favour of the landlord vide order dated 27.12.2005 against which Revision No. 10/2006 was preferred by the petitioner which was also dismissed by the revisional court vide order dated 11.7.2006. The petitioner has challenged the aforesaid order dated 13.6.2005 and 27.12.2005 passed by the Rent Control and Eviction Officer and 11.7.2006 passed by the revisional court/Additional District Judge Court No. 8, Kanpur Nagar. The learned Counsel for the petitioner has urged that the courts below have committed following illegalities in the order:
(a) The courts below failed to appreciate that the premises in dispute cannot be treated as building as per provisions of Section 3(i) as any walls do not cover it, only Grill is erected, and as such the order declaring vacancy and subsequent order are absolutely illegal.
(b) The courts below ignored that the petitioner was running a workshop and as such it was not covered by the provisions of the Act and therefore the Rent Control and Eviction Officer had no jurisdiction over the premises in dispute.
(c) In any case the premises in dispute was let out by the landlord himself in 1996 and therefore subsequently he cannot claim that there is vacancy.
(d) The agreement between the parties whether oral or in writing is always binding on the parties. Therefore, it is assumed that the agreement was executed in 2003 between the son of the landlord and the petitioner though the tenancy started in year 1996. This cannot be a ground for discarding the agreement and the landlord is bound by his own conduct.
(e) The landlord cannot be permitted to adopt short cut method of proceeding under Section 16(1)(b) due to his own conduct instead proceeding under Section 21(1)(a).
(f) In any case, the vacancy, which has occurred long before, cannot be disturbed after such a long time. If any vacancy was there in the premises in dispute in the year 1996, it no longer remained after the landlord let out the space under the balcony bounded by grills to the petitioner.
(g) There is no time limit provided for declaration of vacancy, still the Courts must act within the reasonable time, as such vacancy could not have been declared by the Rent Control and Eviction Officer.
9. In support of his contention the learned Counsel for the petitioner has relied upon paragraphs 15 and 16 of the decision in Sana Ullah v. VIII Additional District Judge. Meerut and Ors. 1979 ARC 138. After noticing the definition of 'building' as defined in Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) in para 15 of the decision the Court in para 16 observed that since in the definition of building expression 'means' has been used it indicates that the definition is exhaustive, that is to say, it is not possible to read in it some thing which has not been provided expressly therein. The Court thereafter held that the definition clearly shows that in order to fall within it, there must be a roofed structure. If there is no roofed structure, the premises cannot be a building. Apart from the meaning given in the Act, what is a 'building' must be a block of brick or stone work covered in by a roof. The roof need not be laid with lintel or other similar constructions. The ordinary and natural meaning of the word 'building' includes the fabric and the ground on which it stands. It is a structure roofed in and capable of upholding protection and shelter. Therefore, a roofless 'Ahata' which merely surrounds a piece of land, though stayed and tied together is not a building within the definition given above.
10. In the aforesaid case the question being considered by the Court was whether a roofless structure or 'Ahata' could be called a building. The facts of the instant case are different. It is admitted to the parties that the balcony above roofed structure has been given the shape of a room and is utilized as such by supporting grills from below.
11. In fact the aforesaid ruling in Sana Ullah (supra) relied upon by the learned Counsel for the petitioner is clearly against him as it is apparent that in the ordinary and natural meaning of the word 'building' includes even other fabrics than bricks for the purpose of walls like tins, grills, thatched walls, kachcha walls, glass walls, fiber walls etc.
12. The walls need not be only of bricks as is apparent from the decisions cited/relied upon by the learned Counsel for the petitioner:
(i) In Udham Singh v. Hari Chand 1983 (2) 22 RCR 425 (P&H;); and
(ii) Salig Ram. v. Rent Control and Eviction Officer and Ors. 2006(1) ARC 111.
13. In the case of Udham Singh (supra) there were similar provisions under Sections 2(a), 2(b) and 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949. In that case the dispute was regarding a Kacha Dhara (Open Verandah) with open space given on rent for dairy business. It was held that what was let out was rented land and not a building. Small Dhara (Open Verandah) on open site does not make it a building and the landlord was entitled to eject the tenant on the ground of bona fide requirement.
14. Thus, the aforesaid case relied upon by the learned Counsel for the petitioner is not applicable to the instant case and is clearly distinguishable.
15. In the case of Salig Ram (supra) also the definition of 'building' as defined in Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) was given a meaning. The Court held that the building under Section 3(i) means a roofed structure which means a roof placed upon some sort of walls which may be either pucca or kachcha or wooden or of tin or of any other material. In that case there was no finding that the tin shed was placed upon any walls of any sort, hence, it was held that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was not applicable. It is apparent that this case cited by the learned Counsel for the petitioner is of no help to him in the facts and circumstances of the case.
16. Taking the contention of the learned Counsel for the petitioner in seriatim my opinion is as under:
(a) The contention of the learned Counsel for the petitioner that the premises in dispute cannot be treated as 'building' as per the provisions of Section 3(i) of the Act is misconceived and has no force as it is not bounded by any wall but by iron grills.
'Building' has been defined in Section 3(i) of the Act as under:
'building', means a residential or non-residential roofed structure and includes:
(i) any land (including any garden), garages and outhouses, appurtenant to such building ;
(ii) and furniture supplied by the landlord for use in such building ;
(iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof;
Being an inclusive definition nothing can be added in it, hence it means a residential or non-residential structure having a roof.
17. Admittedly in the present case the balcony has been utilized as a roofed structure bounded by iron grills from below for the shop/working space for welding etc.
18. The dictionary meaning of 'Wall' according to Father Camil Bulcke is a 'Barrier' and according to New Shorter Oxford English Dictionary 'Wall' means a rampart or bank of earth stone etc. used for defensive purposes, fortification, a structure of little width in proportion to its length and height, usually erected with continuous courses of bricks or stone and serving to enclose, protect, or divide a space or property or to support a roof, a tall or perpendicular barrier.
19. The walls thus can be made/constructed by any fiber or material like bricks, mud-walls, iron grills, tins, glass walls etc. The space provided to the tenant was thus a roofed structure having walls made of grills. It is accordingly a 'building' within the meaning of Section 3(i) as defined in the Act.
20. In so far as the contention of the learned Counsel for the petitioner that the courts below have ignored that the petitioner was running a workshop and as such it was not covered by the provisions of the Act and therefore the Rent Control and Eviction Officer had no jurisdiction over the premises in dispute is concerned, it is fallacious. The revisional court has considered this plea of the petitioner and have given a categorical finding of fact that the petitioner in his application has stated that he was a tenant in the aforesaid space for shop provided by the landlord. He never claimed it to be a workshop. The findings are as under:
Rizwan Akhtar dwara rent nirikshak ko diye gaye likhit bayan mein prashnagat bhaag ko dukan grill se ghiri hui bataya hai, karkhana kahin nahin kaha, jab ki vaad me prastut apattiyon me use karkhana shabda se sambodhit karne lage. Adhiniyam Sankya 13 san 1972 ki dhara 2 updharar (d) mein yah pravdhan hai ki aise kisi bhawan jo ki kisi audyogik prayojan athawa kisi maal ke nirman sanrakshan ya cinema ya theatre ke roop me prayog kiya Jata ho athawa prayog kiye jane ke liye abhikrit ho, aur bhawan mein aise prayojan ke liye sayantra tatha upkaran bhawan ke saath patte par diye gaye ho to wah adhiniyam ke prabhawa se bahar hoga. Rizwan Akhtar ne swayam apne bayan mein likha hai ki wah dukan me san 1996 se kirayedar hai, Jisme truck welding wa repairing ka karya hota paya gaya, Jisase yah spast hai ki prashnagat dukan audyogic prayojan ya maal ke nirman tatha sayantra tatha upkaran bhawan ke saath patte par nahin diye gaya hain, aisi sthiti mein Uttar Pradesh Shahari Bhawan Adhiniyam Sankhya 13 san 1972 pravidhan us par bhali prakar lagoo hai.
21. The finding whether a building is being used as a residential building or a non-residential building such as a shop or a workshop is a finding of fact. The question is what is a workshop. By the expression in common parlance it is a shop or place where work is done. The work may be of sale and purchase, trading, repairing etc., i.e., it is not a place of manufacture or production of items in the accommodation. The petitioner was only doing repairs of tractors and trolleys under tenancy as claimed by him or on commission as claimed by the respondent. The small space under the balcony where the tools and welding machine was kept cannot be said to be a workshop as the space for repairs of tractors/trolleys would be insufficient for such gas/electric welding work. The repairs were carried on the road/Gali in front of the shop, which the petitioner claimed to be of the Kanpur Development Authority. It is contended that the Prescribed Authority has wrongly held that the provisions of Rent Control Act are applicable as it does not apply to workshop and that his workshop is situated on the land of Kanpur Development Authority beneath the balcony for which he pays Rs. 500 as rent to the landlord. The revisional court dealt with the aforesaid contention as under:
6- fuxjkuhdrkZ ds ;ksX; vf/koDrk }kjk eq[; :I ls ;g rdZ izLrqr fd;k x;k gS fd izLrqr dsl esa jsuV dUVksy ,DV ds izkfo/kku ykxw ugha gksrs gSa o ;ksX; voj U;k;ky; us jsuV dUVksy ,DV ds izkfo/kku ykxw eku dj fjDrrk o vkoaVu ekudj fof/kd =qfV dh gSA blds fy;s fuxjkuhdrkZ ds ;ksX; vf/koDrk dk ;g rdZ gS fd ckyduh ds uhps fLFkr dkj[kkuk QSDVh dh ifjHkk'kk esa vkrk gS o ;g Hkwfe ds0 Mh0 ,0 dh Hkwfe gS tks lkoZtfud Hkwfe gS o fuxjkuhdrkZ] edku ekfyd dh rjQ ls 500 #I;s izfrekg fdjk;s dh nj ls fdjk;s ij ysdj dke dj jgk FkkA bl izdkj fuxjkuhdrkZ ykblsalh gS vkSj mDr rhuksas vk/kkjksa ds dkj.k ,DV ua0 13 lu~ 1972 izLrqr dsl esa ykxw ugha gksrk gSA vius rdZ ds leFkZu esa fuxjkuhdrkZ ds ;ksX; vf/koDrk }kjk U;k; fu.kZ; 2006 1 ,0 vkj0 lh0 Ik`f'B 111 dk Hkh gokyk fn;k x;k gSA
22. No reason has been given by the petitioner that why was he paying rent of Rs. 500 to the respondent if his workshop was situated on the land of the Kanpur Development Authority. It may be stated here that the aforesaid rent was not paid to the landlord but was paid to Manish Bhatia son of the landlord. Furthermore the provisions of Section 2(d) of the Act provide:
any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out alongwith the building:
Provided that nothing in this clause shall apply in relation to any shop or other building, situated within the precincts of the cinema or theatre, the tenancy in respect of which has been created separately from the tenancy in respect of the cinema or theatre ; or
23. In view of the aforesaid it cannot be said that the petitioner was having a workshop.
24. Since the petitioner had not taken the plea that the place of his work is a workshop, rather described it as a shop. The revisional court has rightly rejected the plea of the petitioner holding that:
8- fuxjkuhdrkZ ds ;ksX; vf/koDrk dk ,d rdZ ;g gS fd iz'uxr Hkkx ds ds0 Mh0 ,0 dh lkoZtfud Hkwfe vFkkZr~ xyh esa cuk;k x;k gS] ftlds Lokeh edku ekfyd ugha gS] ,slh fLFkfr esa ,DV ua0 13 lu~ 1972 lkoZtfud Hkwfe gksus ds dkj.k ykxw ugha gSA ;g ds0 Mh0 ,0 dh Hkwfe gS ;k edku ekfyd dh Hkwfe gS vkSj bl fcUnq dks ;ksX; voj U;k;ky; ds le{k mBk;k Hkh ugha x;kA ,slh fLFkfr esa fuxjkuh U;k;ky; bl u;s rF; ij opkj ugha dj ldrh gSA blds vykok Ik=koyh ij ,slh dksbZ lk{; ugha gS ftlls ;g dgk tk lds fd iz'uxr Hkkx ds0 Mh0 ,0 dh lkoZtfud Hkwfe esa gh cuk gSA blh izdkj vf/kfu;e dh /kkjk 21 lh ds vuqlkj fuxjkuhdrkZ us bl dkj[kkus dks QSDVh ,DV ds v/khu QSDVh ugha lkfcr dh gSA
25. (c) The petitioner has then vehemently argued that the premises in dispute was given on rent by the landlord to him and therefore he subsequently cannot claim that there was any vacancy in it. In this regard the pleadings of the parties in the courts below may be noted. The landlord had come out with a plea that the petitioner was his commission agent and was working on his behalf in the space provided by him below the balcony bounded by iron grills, but later on the petitioner started putting his lock claiming to be a tenant giving rise to the present dispute.
26. The finding of the courts below is that the petitioner is an illegal occupant. He was not occupying the space under a valid allotment order. The courts below have found that the aforesaid construction was made on 11.4.1978 when the balcony was constructed ; hence the provisions of the Act became applicable to it on 1.4.1988, i.e., after ten years.
27. Since the petitioner was illegal and unauthorized occupant his occupation was against the provisions of Sections 11 and 13 of the Act and in the circumstances the revisional court rightly held that there was a vacancy.
28. As regards the agreement dated 10.7.2003 between the petitioner and Sri Manish Bhatia and payment of Rs. 10,500 to him is concerned, suffice it to say that the said agreement was not between the petitioner as the tenant and landlord or co-landlord. Sri Manish Bhatia was neither an agent of the landlord/co-landlord nor the landlord in his own right, hence no tenancy was created between the petitioner and the landlord even if there was any agreement between him and Sri Manish Bhatia. The relevant findings in this regard are:
9- fuxjkuhdrkZ ds ;ksX; vf/koDrk dk ;g Hkh rdZ Fkk fd fuxjkuhdrkZ us edku ekfyd dks 10]500 #Ik;s nsdj fnukad 10&7&2003 dks ,d ,xzhesaV fy[kok;k Fkk ftlds vk/kkj ij bl Hkkx dk og 500 #Ik;s izfrekg dh nj ls fdjk;snkj gSA vr% fdjk;snkj gksus dk dkj.k o'kZ 1999 esa fdjk;snkjh ds le; nqdku dh 'kDy nh xbZ gSA
29. The courts below therefore rightly discarded the agreement, as it did not involve any element of offer and acceptance of the landlord. The agreement of Sri Manish Bhatia with the landlord was not bound by the agreement between the petitioner and Sri Manish Bhatia in the circumstances.
30. (d) and (e) In so far as the contention of the learned Counsel for the petitioner that since the agreement between the parties whether oral or in writing is always binding on the parties, therefore it is assumed that the agreement was executed in 2003 between the son of the landlord and the petitioner though the tenancy started in the year 1996 is binding upon the landlord and cannot be a ground for discarding the agreement has no force. The contention that the landlord is bound by his own conduct and could have proceeded under Section 16(1)(b) also has no force. Admittedly the said agreement dated 10.7.2003 was between the petitioner and Sri Manish Bhatia who was neither landlord nor the agent of the landlord or the co-landlords, hence he could bind the landlord/co-landlords by the aforesaid agreement of alleged tenancy. It is relevant to note here that the petitioner claims himself to be tenant since 1996, but the alleged agreement on the basis of which he claims his right was executed on 10.7.2003 and that too not with the landlord.
31. Section 16(1)(b) of the Act is as under:
16. Allotment and release of vacant building.-(1) Subject to the provisions of the Act, the District Magistrate by order:
(a) ...
(b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order):
Provided that in the case of vacancy referred to in Sub-section (4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under Clause (a).
The shop/space was given by the landlord, who was himself doing business of tractor/trolleys repairs etc. in the building, to the petitioner to work on his behalf on commission basis and not as a tenant.
32. (f) and (g) The next contention of the learned Counsel for the petitioner that in any case, the vacancy which has occurred long before cannot be disturbed after such a long time and if any vacancy was there in the premises in dispute in the year 1996, it no longer remained after the landlord let out the space under the balcony bounded by grills to the petitioner is concerned, it may be noted that under a scheme of the Act the Legislature in its wisdom has not deliberately provided any limitation under Section 16 of the Act. The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is a special Act, hence the provisions of Limitation Act would apply subject to the conditions specifically provided under Section 35 of the Act. Section 35 of the Act provides specifically that Sections 4, 5 and 12 of the Limitation Act, 1963 (Act No. 36 of 1963) shall mutatis mutandis apply to all proceedings under the Act.
33. It has been found by the courts below that the petitioner was not a tenant. He has not perfected his right of adverse possession, as he himself had filed Suit No. 313 of 2000 that he may not be evicted except in accordance with law which shows that his possession is not hostile. The landlord in his turn has moved release application under Section 16 of the Act in which proceeding the case of the petitioner has been found to be false. The occupation of the petitioner is, therefore, rightly held to be illegal and unauthorized.
34. The learned Counsel for the petitioner has then urged that he may be permitted to move an application for allotment in view of the decision in Ram Nath Sehgal v. District Judge, Kanpur Nagar and Ors. 2002 (2) ARC 125 : 2002 (3) AWC 2497. The learned Counsel for the petitioner contends that the landlord could not file a release application under Section 16(5)(a) of U.P. Act No. XIII of 1972 and ought to have filed an application under Section 21 of the Act.
35. As far as provisions of Section 16(5)(a) is concerned, it provides:
Where the landlord or any other person claiming to be lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with Clause (a) or Clause (b), as the case may be, of Sub-section (1), the District Magistrate may review the order:
Provided that no application under this clause shall be entertained later than seven days, after the eviction of such person.
36. It does not apply as the petitioner has not been able to satisfy the ingredients of the aforesaid Section 16(5) of the Act. He has also not moved for review within the time prescribed in the aforesaid provisions, hence cannot be granted any relief in this regard at this stage by the High Court.
37. In Brij Kishore Gupta v. District Judge, Dehradun 1985 (2) ARC 424, it has been held by a learned single Judge of this Court as follows:
Law is well settled that while considering the release application of the landlord under Section 16 of the Act, the authority concern has only to look into the bona fide requirement of the landlord alone. The authority at this juncture has not to take into consideration the interest of any other prospective allottee.
38. On an analysis of Section 16 of the Act, it is clear that the District Magistrate, while considering an application for release under Section 16 of the Act, has to consider only whether the building sought to be released in bona fide required by the landlord or not. He has also not to consider as to whether the accommodation already in occupation of the landlord was sufficient for his needs or not. Every owner of a building has a right to occupy his own building and, as such, the Legislature contemplated that when the building is vacant or is likely to fall vacant and the landlord requires the said building for his bona fide need then the said building should be released to the landlord. This is the sole consideration which has to weigh with the District Magistrate when he takes up the release applications under Section 16 of the Act for consideration.
39. The Hon'ble Supreme Court in Vijay Kumar Sonkar v. Incharge District Judge and Ors. (1994) SCC 646, while confirming the view of this Court in Talib Hussain's case held:
The distinction between the two orders envisaged in Sub-section (1) is well marked. In the case of an allotment order the result is brought about by a dialogue between the prospective tenant and the District Magistrate, thereafter, under whose orders the landlord is required to let any building to the prospective tenant. On the other hand in the case of a release order the dialogue takes place between the District Magistrate and the landlord and the prospective tenant does not figure in it at all. The allotment order and the release order, as the case may be, being mutually exclusive, have separate areas of operation permitting no encroachment of one over the other. The mere fact that the focal point is the District Magistrate from whom flow the respective orders is of no consequence. It is on this understanding of the law that the High Court relying on its Full Bench decision in the case of Talib Hussain v. 1st Additional District Judge, rejected the prayer of the prospective tenant that he had a right to be heard in a release application of the landlord based it was on the provisions of Sub-section (2) of Section 16 on the ground of bona fide requirement. On the allowing of the release application the premises in question ceased to be allotable and since the District Magistrate thereafter would have no jurisdiction to make an allotment thereof the prospective tenant consequently has no right to resist the landlord in release proceedings. The view of the High Court seems to us to be correct in the circumstances of the case as also in law because as of today no allotment order subsists in favour of the appellant and yet he continues to be in possession. The appeal is, therefore, dismissed. The appellant is directed to vacate the premises within one month. It is made clear that he is not debarred from seeking another allotment order of any other premises if he has any such right in accordance with law. The appellant shall pay costs to the respondents throughout which we quantify at Rs. 5,000.
40. In Writ Petition No. 11646 of 1995, Mohan Lal Mehra v. State of U.P., decided on 5.5.1995, reliance has been placed on Vijay Kumar Sonkar's decision decided by the Supreme Court, holding that a tenant has no right to be heard in release application of a landlord. His Lordship Mr. Justice M. Katju accordingly quashed the allotment order.
41. In Ved Prakash v. VIIIth Additional District Judge, Ghaziabad and Ors. 1993 (1) ARC 642 : 1993 (2) AWC 739, this Court has relied upon the Full Bench decision of this Court in Talib Hussain and has treated a prospective allottee as an unauthorized occupant and has held as under:
A preliminary objection has been raised by the learned Counsel representing the caveator asserting that in the facts and circumstances of the present case this writ petition at the instance of the petitioner is not entertainable and deserves to be dismissed on this ground alone. In support of this submission, the learned Counsel has placed reliance upon the decision of a Full Bench of this Court in the case of Talib Husain and Anr. v. 1st Additional District Judge, Nainital and Ors., and the decision of a learned single Judge in the case of Smt. Krishna Rani v. District Judge, Dehradun and Ors. and Radhey Lal v. District Judge, Jhansi.
42. A Full Bench of this Court in its decision in the case of Talib Husain and Anr. v. 1st Additional District Judge and Ors. had, after carefully considering the various provisions of the U.P. Act No. 13 of 1972 and the rules framed thereunder, observed that an application for release under Section 16(1)(b) of U.P. Act No. 13 of 1972 is a matter between the District Magistrate and the landlord in which the outgoing tenant or the prospective allottee does not have any right to object. It had further been observed that the prospective allottee comes into the picture only after the disposal of the landlord's application for release under Section 16(1)(b) and only if the same is rejected. The Full Bench went on to observe that the prospective allottee has no right or interest in the property or claim against the landlord so as to be entitled to any hearing in the disposal of the release application and has no right to be heard in opposition to such an application.
43. This Court had clarified in its decision in the case of Naubat Ram Sharma v. Additional District Judge, Moradabad and Ors. 1987 (2) ARC 121 : 1987 (2) AWC 1168, that every owner of a building has a right to occupy his own building, and such the Legislature contemplated that when the building is vacant or is likely to fall vacant and the landlord required the said building for his bona fide need then the said building should be released to the landlord and that this is the sole consideration which has to weigh with the District Magistrate when he takes up the release applications under Section 16 of the Act for consideration.
44. It may, further be noticed that in its decision in the case of Radhey Lal v. District Judge, Jhansi and Ors. 1990 (2) ARC 540, this Court has upheld the rejection of a revision under Section 18 of the U.P. Act No. 13 of 1972 at the instance of a prospective allottee holding it to be not maintainable as he had no right or interest in the subject-matte of the lis between the District Magistrate and the landlord in the matter of release contemplated under Section 16 of the Act again in its decision in the case of Smt. Krishna Rani 1990 (1) ARC 442. it was held that a prospective allottee has no locus standi to be heard in the matter of release contemplated under the aforesaid provision.
In the circumstances, therefore, it is obvious that the mere fact that subsequent to the rejection of an application for release the Rent Control and Eviction Officer passed an order of allotment in favour of a prospective allottee such an order of allotment can be of no avail so as to vest the prospective allottee with a right of being heard in the matter of release of an accommodation contemplated under Section 16 of the Act which is taken up in revision under Section 18 of the said Act, the lis between the District Magistrate representing the State and the landlord so far as the matter of release of the accommodation declared to be vacant is concerned becomes pending when the revision authority entertains the revision against the order rejecting the application for release and in this matter the prospective allottee cannot be deemed to be entitled to have any right of being heard and his position remains the same as it was prior to the passing of the order of allotment. The Full Bench was quite emphatic when it pointed out that the application for release under Section 16(1)(b) of the Act is a matter between the District Magistrate and the landlord in which outgoing tenant or the prospective allottee does not have any right to object. Since the order of allotment has to fall with the reversal of the order rejecting the application for release, it is obvious that the position of a prospective allottee cannot improve simply because proceedings on the basis of an erroneous order rejecting the release application, the Rent Control and Eviction Officer has passed an order of allotment in favour of a such a prospective allottee.
45. A glance at Section 16 will indicate that on a building falling vacant, the District Magistrate has been empowered to pass two types of orders : (1) an order of allotment and (2) an order of release in favour of the landlord. The scheme of Act and the rules framed thereunder clearly suggest that the Legislature has recognized and conferred on the landlord a preferential right in a case where the building has fallen vacant.
46. Thus, unlike Section 21 which confers on the landlord a right to apply for release of an accommodation which is in occupation of a tenant subject to a comparison of relative hardship likely to be suffered by the landlord and the tenant. Significantly, neither Section 16 nor the rules framed under the Act envisages any comparison between the landlord's need and that of the prospective allottee in a case where the landlord applies for release under Section 16(1)(b).
47. Further whereas elaborate guidelines have been set out for assessing and comparing the need of the landlord and the tenant in the shape of Rule 16 for the disposal of an application filed by the landlord under Section 21, there is a conspicuous absence of any such rule laying down guidelines or standard of proof for the disposal of an application for release filed under Section 16(1)(b). These features indicate the difference in approach which has to be adopted under Section 16(1)(b) where under the only pre-condition imposed is that the District Magistrate should be satisfied that the building is bona fide required by the landlord for occupation by himself. In determining this question, the District Magistrate is not required by the statute to take into account the needs set up by the prospective allottees. It does not specifically or by necessary implication require any comparison of the need of the landlord with those set up by the prospective allottees. The reason for absence of such a provision seems obvious as there will always be some prospective allottee or allottees whose need would be greater than that of the landlord and consequently the right conferred on the landlord to apply for the release of his building under Section 16(1)(b) would be rendered completely illusory.
48. The learned Counsel for the petitioner has argued no other point.
Conclusions:
49. From a perusal of the records and the orders impugned it appears that the landlord inducted the petitioner into occupancy of roofed structure in 1990 without any allotment order in his favour. Proceedings for declaration of vacancy and allotment were initiated on an application of Sri D.N. Dubey. After hearing the parties vacancy was declared by order dated 13.6.2005. Release application was thereafter filed by the landlord under Section 16(1)(b) of the Act to which objection was filed by the petitioner. The release application was also allowed by the Rent Control and Eviction Officer by order dated 27.12.2005. The writ petition challenging the order of vacancy was rejected by this Court holding that there was no illegality in declaring vacancy as the petitioner was in occupation of the structure without any allotment order and that the order may be challenged by the petitioner in revision.
50. The courts below have recorded concurrent findings of fact that there is no allotment order in favour of the petitioner and that he was doing the work on commission basis in the space provided by the landlord. According to the petitioner he started the work on the basis of the agreement entered into between him and Manish Bhatia, son of the co-landlord. The courts below have found that Manish Bhatia was neither the landlord nor the co-landlord. He had not been given any authority by the landlord or the co-landlord to act as their agent to enter into any agreement with the petitioner. The said agreement entered into between the petitioner and Sri Manish Bhatia was not binding upon the landlord and the co-landlrod as it was not an agreement between them and the tenant. It is apparent from the aforesaid decision of Ram Nath Sehgal (supra) that the High Court was of the view in that case that there is no illegality in declaring vacancy.
51. From the judgments of the courts below it is apparent that the courts below have on the basis of record and evidence held that there is vacancy of the structure claimed by the petitioner under his tenancy and accordingly have ordered for publication of advertisement for allotment in accordance with law. There is no case that the building had been allotted to any one ; hence that part is not covered by the judgment in Ram Nath Sehgal's case.
52. As regards the judgments relied upon by the learned Counsel for the petitioner in Jagdish v. District Judge, Kanpur Nagar and Ors. 2002 (1) ARC 327 : 2002 (1) AWC 766, suffice it to say that in that case the landlord had executed a lease deed with the tenant and had accepted rent of his choice acting in contravention of the rules and the Act which is not the fact in the instant case. The revisional court in these circumstances has rightly held that the position of the tenant is that of unauthorized occupant as there is no allotment order in his favour and that under Section 16 of the Act, the Rent Control and Eviction Officer will have no option but to proceed for allotment as the landlord disentitled himself to seek release. In that case also fresh mandamus was directed to all concerned authorities prescribing certain procedure to follow while declaring vacancy and allotment, as such the ratio laid down in the case of Jagdish (supra) does not help the petitioner.
53. The last case cited by the learned Counsel for the petitioner is the decision in Munna Lal Agarwal v. Rent Control and Eviction Officer/City Magistrate, Mathura and Ors. 2005 (1) ARC 144 : 2005 (2) AWC 1647, wherein it has been held:
9. However, reversal of the Full Bench judgment by the Supreme Court has changed the entire scenario. Now the agreement is binding in between landlord and tenant and landlord can file suit for eviction on the grounds mentioned under Section 20(2) of the Act and also release application under Section 21 of the Act on the ground of bona fide need. I am, therefore, of the opinion that if landlord lets out building on which U.P.R.C. Act is applicable without allotment then he himself cannot file release application on the ground of deemed vacancy under Section 12/16 of the Act. In release proceedings under Section 16 of the Act tenant/unauthorized occupant cannot participate and he cannot assert that need of the landlord is not bona fide. As the agreement of letting is binding in between landlord and tenant, hence landlord is fully entitled to file release application under Section 21 of the Act.
54. It is apparent from paragraph 9 aforesaid on which reliance has been placed by the learned Counsel for the petitioner that the Court has held that the agreement entered into between the landlord and the tenant is binding and the landlord can file suit claiming bona fide need.
55. However, in the instant case admittedly there is no agreement between the landlord, co-landlord and the tenant. The agreement with the petitioner by the son of the landlord will not be binding upon the landlords and the co-landlords until and unless the son was authorized by them or was acting in the capacity of their agent, which, as is evident from the record, is not the case in the instant writ petition.
56. The courts below have given categorical finding that the building was not given to the petitioner on rent by the landlord and even if it was so he could not have been inducted without an allotment order and as such he was an unauthorized occupant. The Rent Control and Eviction Officer/Additional City Magistrate, Kanpur Nagar has held that the petitioner could not have got the shop in dispute without express order of allotment and if he has obtained the shop without following the process of law, his application is hit by Sections 11 and 13 of the Act and as such he is not vested with any right of tenancy. The trial court as well as the revisional court has concurrently held that no agreement was entered into between the petitioner and the respondent-landlord. After considering the case laws cited by the learned Counsel for the petitioner the revisional court has given categorical finding vide order dated 11.7.2006 upholding the judgment passed by the Rent Control and Eviction Officer.
57. There is no illegality or infirmity in the impugned orders and the petitioner has failed to establish any case for interference by this Court under Article 226 of the Constitution.
58. For all the reasons stated above, the petition is dismissed. Consequences of the orders of courts below to follow. The possession of the premises in dispute shall be handed over to the respondent-landlord by the petitioner within one month from today.