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V.K. GUPTA versus IST A.D.J. KIANPUR

High Court of Judicature at Allahabad

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V.K. Gupta v. Ist A.D.J. Kianpur - WRIT - A No. 37086 of 1993 [2006] RD-AH 12850 (2 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.25

Civil Misc. Writ Petition No.37086  of 1993

Vipin Kumar Gupta

Vs.

Ist Addl. District Judge and others

Hon. Sanjay Misra, J.

Heard learned counsel for the petitioner.

List has been revised. None appears on behalf of the respondents.

By means of this writ petition, the petitioner seeks to challenge the order dated 1.10.93 passed in Revision No.352/7/93 V.K.Gupta Vs. R.C.E.O.   whereby  the revision of the petitioner has been dismissed summarily on the ground that the petitioner had not challenged  the order dated 2.7.1990 whereby the trial court had declared vacancy and that the petitioner has come up in revision after the proceeding for allotment has been completed and order of allotment dated 17.9.93 has been passed in favour of another person. The revisional court was of the view that since the order declaring the vacancy had not been challenged by the sitting tenant in the competent court, therefore, the same can not be looked into  by the revisional court at that stage. It has further been held that after declaration of the vacancy the petitioner who was the sitting tenant assumed the status of trespasser. Therefore, it was held that the revision is not maintainable.

Learned counsel for the petitioner has placed reliance upon the decision of Hon'ble Supreme Court in the case of Achal Misra Vs. Rama Shanker Singh and others reported in 2005(1) ARC 877. In the aforesaid case, the Hon'ble Supreme Court has laid down as quoted herein:-

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" It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision making and in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy's case, which has disapproved the ratio of the decision in M/S Trilok Singh and Co., can not be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged.  The High Court, in our view, has misunderstood the effect of the decision of this court in Ganpat Roy's case and has not kept in mind the general principles of law governing such a question as expounded by  the Privy Council and by this court. It is nobody's case that there is anything in the Act corresponding either to section 97 or to section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Smt. Kunj Lata V. Xth Addl. District Judge, Kanpur Nagar and others ( supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and  that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy  can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter to approach the High Court.

We are, therefore, satisfied that the High Court was in error in allowing the writ petition solely on the ground that the landlord had not challenged the

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original order notifying the vacancies then and there. The decision of the High Court in the writ petition, therefore, requires to be set aside and the writ petition remanded to that court  for a fresh hearing and disposal in accordance with law, including the question whether the order notifying the vacancy was proper.  It would also be necessary for the High Court  to consider the effect of the cancellation of the order in favour of respondent no.2 considering the nature of the allotment  made in his favour, even assuming that the High Court does not find any reason to interfere with the order notifying the vacancy or with the order making the allotment.  The appeal is hence allowed. The judgment of the High Court in the writ petition  filed by the allottees is set aside and the writ petition is remanded to the High Court for a fresh disposal in accordance with law and in the light of the observations contained in this judgment. The High Court, it is hoped, will expeditiously dispose of the writ petition afresh pursuant to this order of remand, in the circumstances of the case preferably within a period of six months  of the receipt of a  copy of this judgment."

In the aforesaid case the writ petition had been allowed by the High Court solely on the ground that the landlord had not challenged the original order  notifying the vacancy then and there. Consequently, the Hon'ble Supreme Court set aside the order of the High Court. Learned counsel contends that the petitioner could maintain a revision u/s 18 of the Act by virtue of the fact that the order declaring vacancy could be challenged even after the order of allotment had been passed, he being an aggrieved person. Therefore, the view expressed by the revisional court  that the grounds of revision relating to vacancy could not be considered at a belated stage is illegal.

For the reasons as stated above the  impugned order dated  1.10.1993 can not be upheld and is liable to be set aside and the same is set aside. The matter is sent back to the revisional court to decide the revision in accordance with law.

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The writ petition is allowed as above. No order is passed as to costs.

2.8.06

Gc.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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