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Siddh Gopal & Another v. Dilip Kumar & Others - WRIT - A No. 14626 of 2007  RD-AH 6465 (9 April 2007)
Civil Misc. Writ Petition No. 14626 of 2007
Siddh Gopal and another Vs. Dilip Kumar & others
Hon'ble Prakash Krishna, J.
This is really an unfortunate litigation. The landlords, who are the respondents in the present writ petition, filed an application for release of the disputed shop about 26 years ago i.e. in the year 1981and the matter was remanded twice by the appellate court on untenable grounds, apparently to benefit the petitioner-tenant. Release was sought on the pleas that the shop in question is bonafide required by them to run Sarrafa business. The shop in dispute is situate in Sarrafa Market wherein the petitioners-tenants are doing the Sarrafa business since time of the grand father of the respondents. Sri Kalyan Mal was the owner of the disputed shop. He died on 17-1-1966 leaving behind him two sons, namely, Ram Rakshpal (father of the respondents-landlords) and Shivraj Saran. In a short span of time, Ram Rakshpal also expired on 14-11-1966 leaving behind him the respondents who were minors at that time. Shivraj Saran, being the uncle of the respondents-landlords , who were minors, started looking after the family affairs. According to the respondents, which has been found also by the courts below, Kalyan Mal had executed a Will dated 5-7-1965 bequeathing certain portion of the property in favour of Ram Rakshpal which was inherited by the respondents-landlords and the other properties to his another son, Shivraj Saran. The respondents no. 1 and 2, after attaining the age of majority, jointly filed a release application along with respondent no. 3, who was minor at that time, for the release of the shop in question on the ground of their bonafide need to to open a Sarrafa shop to earn their livelihood.
It was pleaded in the release application that after the death of Kalyan Mal, the parties took possession of their respective portion of the properties as per the Will of Kalyan Mal and they continued in possession accordingly. However, some dispute arose in between the landlords on the one hand and their uncle Shivraj Saran on the other hand which led to filing of the Suit No. 74 of 1981 in the court of Civil Judge, Budaun. The said suit was decided in terms of the compromise on 6-7-1981 and it was agreed upon between the parties that both the parties shall remain in possession of the properties as given to them through the Will of Kalyan Mal. The plea set up was that Shivraj Saran, permitted the landlords, who are respondents herein, to occupy his one shop as licensee for the time being. The said shop, which was in occupation of the landlords as licensee, fell in the share of Shivraj Saran on account of the Will executed by Smt. Ram Pyari, the mother of Shivraj Saran in his favour and the present landlords have no right, title or interest therein. It was further stated that in the entire city of Budaun, the landlords had no other shop wherein they can start their business to earn their livelihood.
The release application was contested by the petitioners by denying the genuineness of the Will allegedly executed by Kalyan Mal . The validity of the civil court decree was also sought to be challenged on the ground that the same is collusive one. The release application was allowed earlier by the Prescribed Authority vide judgment and order dated 31-10-1983. The said order was subject matter of Misc. Civil Appeal No. 94 of 1983. The appeal was allowed by the Civil Judge, Budaun by judgment and order dated 20-9-1984 and the matter was remanded to the Prescribed Authority to decide the release application afresh. The principal ground for allowing the appeal was that the appellate court permitted the tenants-petitioners to file affidavit (53/c) as additional evidence on payment of Rs. 200/- as costs. This was the first remand order.
After remand, the matter was again re-considered by the Prescribed Authority and the release application was again allowed by the order dated 13-8-1985 on the finding that the petitioners-tenants have got adjoining shop towards the South while the landlords have got no other shop. The need of the landlords is bonafide and genuine and more pressing than that of the tenant. This order was again challenged in Misc. Civil Appeal No. 80 of 1985. The appellate court (Shri Pooran Singh, IV Additional District Judge, Budaun) again allowed the appeal and set aside the judgment and order of the Prescribed Authority and remanded the matter back to the Prescribed Authority for deciding it afresh. Before the appellate court an argument was raised by the tenants-petitioners that the decree obtained in O.S. Nos. 109 of 1982 and 24 of 1981 are collusive decrees and the suits were filed with oblique motive to set up a case that the disputed shop is bonafide required. The appellate court took the view that since the question of validity of the civil courts decrees was not examined by the Prescribed Authority ,it thought it convenient to remand the matter to the Prescribed Authority. This was the second remand order.
After second remand order, the matter was again restored back on the file of the Prescribed Authority. It remained pending for a considerable period of time for one reason or the other. Every possible step was taken by the tenants-petitioners to delay the hearing and disposal of the release application after the second remand order. An application was filed, stating that certain facts were omitted to be inserted in the original written statement and that may be taken on record. The said application was rejected by the Prescribed Authority by order dated 19-5-1995 and it was challenged in Writ Petition No. 22084 of 1995 by the tenants. This Court disposed of the writ petition by the judgment dated 21-11-1995, with the observation that the affidavits filed by the petitioners may be accepted on record and be considered by the Prescribed Authority with the direction that the release application be decided within a period of six week. The Prescribed Authority even this time also found that the need of the landlords is bonafide and genuine. It was also held that the validity of the decrees of civil court passed in O.S. No. 24 of 1981 and O.S. No. 109 of 1982 cannot be looked into in the present release proceedings and these decrees are binding on it. By the order dated 23-1-1996, the release application was ultimately allowed. This order was again challenged in Rent Appeal No. 18 of 1996. The District Judge, Budaun by the impugned order dated 7-3-2007 dismissed the appeal and confirmed the findings recorded by the Prescribed Authority.
Sri B.B. Paul, learned counsel for the petitioners submitted that the courts below have committed illegality in holding that the Will of Kalyan Mal is a genuine document. Sri Paul vehemently argued that the Will of Kalyan Mal is a got up document and has been prepared for the purpose of the present case. He further submitted that the view taken by the courts below that they cannot look into the validity of the decrees passed in O.S. No. 24 of 1981 and O.S. No. 109 of 1982 is legally untenable. Elaborating the argument, he submitted that by manoeuvring the things, the shop in question has been allotted to the present respondents-landlords with a view to create a ground for its vacation. In other words, it was submitted that it was incumbent upon the Prescribed Authority to re-examine and record findings afresh on the question of bonafide need and comparative hardship.
In response, Sri Rahul Sahai, learned counsel for the respondents-landlords submitted that the present petitioners have no locus standi to challenge the legality and validity of the Will dated 5-7-1965 of Kalyan Mal, also there is voluminous evidence to show that after the death of Kalyan Mal and Ram Rakshpal (father of the landlords), the petitioners themselves offered rent to the respondents-landlords treating them as the landlords. He further submitted that there is voluminous evidence which have been taken into account by the courts below that at no point of time the Will executed by Kalyan Mal was disputed by the present petitioners. On the contrary, the said Will was acted upon. The petitioners-tenants were informed about the Will executed by Kalyan Mal and also that the respondents under the aforesaid Will dated 5-7-1965 have become landlords and the tenants did not raise any objection and started paying rent to the respondents. In other words, according to him, there has been attornment of tenancy in favour of the respondents. In reply to the argument that the Prescribed Authority ought to have recorded finding on the question of bonafide need and comparative hardship, Sri Rahul Sahai submitted that the remand order was passed for a limited purpose to examine the validity of the two decrees passed by the civil court only. He submitted that the findings with regard to bonafide need and comparative hardship were not challenged before the appellate authority nor they were discussed by the appellate authority, therefore, the Prescribed Authority was correct in not re-considering those findings afresh.
I have given careful consideration to the respective submissions of the learned counsel for the parties. A copy of the Will executed by Kalyan Mal has been annexed as Annexure-1 to the writ petition. Through this Will, Kalyan Mal divided his properties in two parts and bequeathed the first part to Ram Rakshpal alias Munnal Lal, the father of the respondents-landlords and the second part has been given to his another son, Shivraj Saran. It is not in dispute that in the reply to the notice given by the petitioners' lawyer it was stated by Shivraj Saran and the respondents no. 1,2 and 3 herein, that Kalyan Mal had executed his last Will on 5-7-1965 through which he bequeathed the disputed shop in favour of his two sons, Ram Rakshpal and Shivraj Saran and both of them became the owners of the said property. The shop is badly needed by the heirs of Munna Lal who have come of age as they want to carry on their business in the shop to meet their both ends. Further, it was stated that the shop was let out to the petitioners' father. This document dated 30-7-1977 is admitted to the petitioners. Paras 2,3 and 4 of the said document is reproduced below:
"2. That Sri Kalyan mal in sound state of mind and health executed his only and last will on 5-7-65 through which he bequeathed the "the shop" in favour of his two sons Sri Ram Raksh Pal alias Munna Lal and Sri Sheoraj Saran. As such both of them became the owners of the said property.
3. That on the death of Sri Ram Raksh Pal which sad event occurred on 14-11-66 his three sons Kuldeep, Pradeep and Dilip and two daughters Smt. Krishna Devi and Smt. Pratima and his widow Smt. Vimla Devi inherited his share and as such all my clients are the owners of the "shop" in dispute.
4. That the shop is badly needed by those heirs of Sri Munna Lal who have come of age as they want to carry on their business in the shop to meet their both ends."
It follows that the factum of Will dated 5-7-1965 of Kalyan Mal was communicated to the petitioners. It is also not in dispute that the shop in question is ancestral property and Kalyan Mal was the owner of the property in question. Naturally, after his death, the property will devolve upon his two sons, Ram Raksh Pal and Shivraj Saran. Ram Raksh Pal died in a short span of time i.e. within a period of 10 months and was survived by the respondents no. 1,2 and 3 who were minors at that time. It is very natural that Shivraj Saran, being the eldest surviving male member, looked after and managed the property left by his father, Kalyan Mal, including the share of his deceased brother, Ram Raksh Pal. When the sons of the deceased Ram Raksh Pal became major, it is not unusual in such matters, to divide the property among different branches. O.S. No. 24 of 1981 and O.S. No. 109 of 1982 were filed by the present respondents. As stated above, these suits were decided in terms of the compromise. After the decree passed by the Civil Court, a notice dated 23-2-1982 was given by the landlords-respondents, Dilip Kumar, Pradeep Kumar and Kuldeep Kumar to the present petitioners informing them that there has been a partition in the two branches of Shivraj Saran and Ram Raksh Pal, the sons of Kalyan Mal, and the shop in question has fallen in their share. Not only this, Shivraj Saran also gave a notice to the petitioners informing them that they should now pay rent to Pradeep Kumar. It is an admitted case that the petitioners had started paying rent to Pradeep Kumar since January 1980 and rent upto 30-9-1981 was paid through money orders. Thus, it is established that the petitioners accepted the respondents as their landlords. In this view of the matter, it is too late for them to challenge the Will executed by Kalyan Mal or the decrees passed in the aforesaid two suits.
Raj Mohan Krishna Vs. The IInd Additional District Judge and others, AIR 1993 Allahabad 40 is an authority of this Court of Hon'ble Mr. Justice G.P. Mathur (as he then was) that it is not open to a tenant to challenge the decree passed in a civil suit, in release proceedings. The Prescribed Authority is a Tribunal of limited jurisdiction which has been constituted under the Act for deciding the release application. It has no jurisdiction at all to examine the correctness or otherwise of a decree passed by a competent civil court.
In Khem Chand Vs. IVth Additional District Judge, Bulandshahr, 1989(2) ARC 344 it has been held that genuineness of the partition decree passed by a civil court cannot be decided in a release proceeding. So long as such decree is not aside, it has to be accepted as genuine.
In Panna Lal Vs. Dr. Raj Kumar Singh; 1988 ARC 404, it has been held that court cannot go into the question of proof of Will in release proceedings in the same manner as is done in regular civil or testamentary matters.
Strong reliance was placed by the petitioners on Ram Das Yadav Vs. Ivth Additional District Judge, Jhansi, 1991(1) ARC 194 wherein it has been held that assuming that the Prescribed Authority has no jurisdiction to look into the validity of the decree passed by a civil court, but the Prescribed Authority had every right to look into the circumstances of availability of the house for the respondent-landlord, who were grand son of the aforesaid Smt. Kishori Devi. This authority does not lay down, as a proposition of law, that a decree passed by a competent civil court can be ignored by the Prescribed Authority. The observations made therein do not run counter to the observations made by this Court in the cases of Raj Mohan Krishna (supra) and Khem Chand (supra) and should be read in the back grounds of facts as existed in that case.
In the case on hand, besides the decrees of the competent civil court, there are attending facts and circumstances to show that the said decrees passed by the civil court are bonafide and genuine one. Except making of a bald statement by the petitioners, there is no material to show as to how the said decrees are collusive. It is not in dispute that the shop originally belonged to Kalyan Mal, the grand father of the landlords-respondents who died leaving behind him two sons. One son, Ramraksh Pal, the father of the respondents who also died within a short span of 10 months. On the death of Kalyan Mal, the property left by him was inherited by his both sons jointly. A partition took place and the properties were allotted to the respective parties as per the Will of Kalyan Mal. The existence of the Will was not kept secret, but it was disclosed and rather communicated to the tenants way back in the year 1977 through reply notice dated 30-7-1977. The suits were filed after four years in the year 1981-82 when the respondents-landlords became major. Till the respondents attained majority, the family affairs were being looked after by their uncle, Shivraj Saran, a very natural and common feature of Hindu family residing in India. It is also not in dispute that the petitioners-tenants started paying rent to Shivraj Saran and when he informed that the shop in question has fallen in the share of the respondents-landlords, they started paying rent to them. The petitioners-tenants, apart from the other things, are estopped by their conduct to challenge the Will of Kalyan Mal after such a lapse of time. For the sake of arguments, even if the civil court decrees are ignored, the subsequent conduct of the parties that they paid the rent to the respondents, which amounts allotment, is sufficient to hold that the respondents have become the owners and landlords of the disputed shop.
In view of the above discussion, I find no substance in the argument of the learned counsel for the petitioners that the courts below have committed illegality in holding that the decrees passed by a competent civil court is binding on them. The view taken by them is legally correct and does not suffer from any error of law. Consequently, the argument raised by the petitioners that the Will in question is a forged document fails.
As regards non-consideration of the question of bonafide need and comparative hardship by the Prescribed Authority after second remand is concerned, in Mohan Lal Vs. Anandibai and others, AIR 1971 SC 2177 it has been held by the Apex Court that where the appellate court remands a case with direction that the findings of the lower court are set aside, the direction refers to the findings considered by it and on which it differed from lower court. It has been held that it cannot be presumed that all the findings of the lower courts are necessarily set aside. The findings which the appellate court was not called upon to consider cannot be deemed to be set aside by it. To my mind, the aforesaid dictum of the Apex Court clinches the issue on hand. A copy of the remand order has been annexed as Annexure-17 to the writ petition. From the said judgement of the appellate court dated 23-3-1988, it is evident that only this much was argued on behalf of the appellants that the decrees passed in the aforesaid two suits were obtained collusively and the learned Prescribed Authority having not given any finding upon this aspect of the case, the order of the Prescribed Authority is vitiated. The appellate court, after noticing the aforesaid argument of the learned counsel for the appellants, found that on a reading of the judgment of the learned Prescribed Authority this aspect of the case that the decree is collusive was left to be examined. While considering the contention with regard to the decree of O.S. No. 24 of 1981, the appellate court made the following observations:
"The learned Prescribed Authority should have recorded the finding upon the decree of O.S. No. 24 of 1981. If the decree passed in O.S. No. 24 of 1981 is a genuine decree then the rights of the parties will be decided in one manner and if the decree passed in O.S. No. 24 of 1981is collusive then the rights of the parties will be decided in other manner. Therefore, the learned Prescribed Authority was bound to record its finding upon the decree of O.S. No. 24 of 1981."
Similarly, with regard to O.S. No. 109 of 1982, the appellate court made the following observations:
"The finding upon the case of O.S. No. 109 of 1982 will also decide the rights of the parties. The learned Prescribed Authority ought to have given the finding upon it."
It also says that ten papers were filed by way of additional evidence before the appellate court and those papers were permitted to be taken on record by it and thereafter the order of remand was passed. On a perusal of the order of remand dated 21-3-1988, it is apparent that only one point was urged by the appellants in support of the appeal that the decrees passed in the aforestated suits are collusive and are liable to be set aside. No attempt was made by the appellants therein to challenge the other findings recorded by the Prescribed Authority on the question of bonafide need and comparative hardship, Therefore, I find no substance in the argument of the learned counsel for the petitioners that the remand order dated 21-3-1988 was an open remand order, keeping in view the law laid down by the Apex Court, referred to above. Even otherwise also, there is no substance in the argument of the learned counsel for the petitioners that the need of the landlords is not bonafide and genuine. Since the matter suffered remand by the first appellate authority twice, in the interest of justice the argument and the findings recorded by the Prescribed Authority with regard to the question of bonafide and genuine need is also considered in detail, by me.
Coming to the question of bonafide need, the petitioners' counsel submitted that the respondents-landlords have got numerous properties with reference to the Will of Kalyan Mal. A copy of the said Will has been annexed as Annexure-1 to the writ petition. On its perusal, it appears that seven properties were given to the respondents-landlords by their grand father under the Will. The property at Sl.No. 1 is not available to the landlords as it is indisputably in occupation of other tenant. The properties at Sl. Nos. 2,5 and 6, being residential properties, cannot be taken into account for consideration of need for non-residential purpose, namely, opening of Sarrafa shop. The property at Sl.No. 3 is the shop presently in dispute in the present writ petition. Similarly, the property at Sl.No. 4 is a shop which is in occupation of another tenant. The property at Sl.No. 7 consists of two shops which were in dilapidated condition and have been sold out on 20-3-2006. Thus, the landlords have got no shop in vacant state. They applied for release of the disputed shop for their need in the year 1981. On the other hand, the petitioners-tenants had admittedly got another shop just adjoining the disputed shop towards the South as found by the learned Prescribed Authority on page-110 of the paper book. The said shop belongs to the tenants and is recorded in the name of their mother, Smt. Ram Sanehi. As a matter of fact, the Prescribed Authority has recorded a finding that the tenants are doing their business from their shop and have been giving assurance to the landlords that they will vacate the disputed shop shortly. It was not disputed by the petitioners that the adjoining shop does not belong to them.
Pointedly, a query was put by the Court as to why the shop which belongs to them adjoining to the disputed shop towards South is not suitable for them. But, no satisfactory reply was given by the petitioners' counsel. It thus boils down to this that the petitioners-tenants have got their own shop adjoining to the disputed shop wherein they are actually carrying on their business and the respondents-landlords have got no shop except the disputed one. In this fact situation, the findings recorded by the Prescribed Authority, by no stretch of imagination, on the question of bonafide need and comparative hardship, can be said to be perverse or illegal.
The term "bonafide need" has received judicial interpretation, time and again, by the Apex Court in several decisions wherein it has been held that bonafide need does not mean absolute need. It has been used in contradiction to whimsical or obstinate need. The assessment of need has to be objective depending upon the facts and circumstances of the case. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must prove that he genuinely required the accommodation.
Applying the above test to the facts of the present case, as disclosed above and found by the courts below, it is firmly established that on one hand, the landlords have got no accommodation wherefrom they can carry on their business whereas on the other hand, the petitioners have got indisputably a shop adjoining to the disputed shop towards South. There is not even a whisper on the part of the petitioners-tenants that the southern shop, in any manner, is inadequate or unsuitable to carry on the Sarrafa business. Further, it has been found by the Prescribed Authority, which is essentially a finding of fact, that the petitioners are carrying on their Sarrafa business from its adjoining shop belonging to them.
In the aforesaid situation, even if the argument of the learned counsel for the petitioners is accepted for a moment that it was incumbent upon the Prescribed Authority to re-consider the question of bonafide need and comparative hardship, the only possible conclusion is that the need of the respondents-landlords is bonafide and genuine and they would suffer greater hardship in case the release application is rejected.
Yet there is another aspect of the case which cannot be ignored. The release application , giving rise to the present writ petition, was filed in the year 1982 when the respondent no. 1 was aged about 25 years, respondent no. 2 was aged about 22 years and the respondent no. 3 was aged about 18-1/2 years, as disclosed in the release application and there is no denial. Rule 7(7) framed under the said Act provides that as far as possible an appeal under Section 22 shall be decided within six months from the date of its presentation. Similarly, Rule 15(3) provides that a release application shall be decided as far as possible within a period of two months from the date of its presentation. These provisions manifest intention of the Legislature that the release proceedings under the Act should be concluded as far as possible with speed within a reasonable period of time. In case on hand, it took more than 25 years on account of indiscreet successive remand orders passed by the appellate court on flimsy grounds that the evidence filed by the petitioners-appellants in the appeal may be taken into account or some part of the argument was not considered by the Prescribed Authority. By passing successive remand orders, the time and energy of the parties go waste was not kept in mind by appellate courts while readily passing the remand orders.
The prime period of life of the respondents-lordlords, who were youth when the release application was filed, have now become mature persons, has been spoiled in fighting the litigation to take back the possession of the tenanted property which was let out by their grand father. During the period of litigation, no attempt was made by the petitioners-tenants to find out an alternative accommodation. It is an acknowledged legal position that where the tenant has not made any attempt to find out an alternative accommodation, the finding of comparative hardship will go against him.
In Mst. Bega Begum and others V. Abdul Ahmad Khan (dead) by Lrs. And others (1979) 1 SCC 273 pari materia provision contained in J.& K. Rent Act came up for the consideration before Apex Court. It was observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city, that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice. It has been followed in Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundata, AIR 2003 Supreme Court 2713.
The learned counsel for the petitioners during the course of the argument submitted that the landlords have got two shops in vacant state at Mohalla, Nai Sarai. The said shop has been found to be in dilapidated condition. The Prescribed Authority in its judgment dated 13-8-1985 considered this aspect of the matter and found that the said two shops being in dilapidated condition and away from the market, cannot be considered suitable for the need of the landlords. During the course of hearing of the writ petition, Sri B.B.Paul, learned counsel for the petitioners submitted that the shops, which are in dilapidated condition, may be offered to the petitioners-tenants, after making it wind-proof and water-proof. On 20-3-2007, the matter was adjourned for 21-3-2007. On that day, the learned counsel for the respondents-landlords submitted that the said shops, which were of no use to the respondents-landlords as they were in dilapidated condition and not in the market, have been sold out on 20-3-2006. It may be placed on record that at no stage earlier to the writ petition for the part period of 25 years, the petitioners-tenants expressed their desire to have the aforesaid shops as an alternative accommodation. After coming to know that the said shops have been sold out, the petitioners have expressed their desire to occupy those shops knowing fully well that those shops are now sold away and that too after making them wind proof and water proof just to give a colour to their case that the need of the landlords is not bonafide and genuine. The willingness of the petitioners to take the aforesaid two shops which has been disposed of only recently itself shows their malafide intention some how to remain in occupation of the shop in question.
Sri Rahul Sahai, learned counsel for the respondents strongly submitted that the writ petition should have been dismissed at its threshold as the petitioners-tenants are not paying any rent towards use and occupation of the disputed shop since the year 1982. In reply the learned counsel for the petitioners submitted that since this plea does not find place in either of the orders of the courts below, he is not in a position to give any reply. Be that as it may, the aforesaid submission of the learned counsel for the respondents-landlords has been noted to keep the record straight.
No other point was pressed by the learned counsel for the parties.
In view of the discussion made above, there is no error either of law or fact in the impugned orders and the judgments of the courts below are based on relevant considerations and do not suffer from any error either of law or fact.
In this view of the matter, there is no merit in the writ petition.
The writ petition is dismissed in limine.
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