D.N. Jha, J.@mdashPetitioner Saghir Ahmad has filed this petition under Article 226 of the Constitution praying for quashing of the orders dated 7-6-1973 and 12-6-1973 passed by the Area Rationing Officer, Lucknow, opposite party No. 3.
2. The brief fads are that the dispute between the Petitioner Saghir Ahmad and Smt. Mehar Jahan relates to shop No. 229/47 situate at Chanwal Wali Gali, police station Chowk, Lucknow. The Petitioner is the allottee vide allotment order dated 17-10-1968 and opposite party No. 4 Smt. Mehar Jahan is the landlady. Formerly this shop was let out by the landlady Mehar Jahan to one Noor Mohammad who was the father-in-law of Saghir Ahmad on Rs. 50/- per month through an'' agreement reduced in writing. Noor Mohammad remained in occupation of the shop for three months and thereafter on 13-8-1968 he intimated the Rent Control and Eviction Officer, Lucknow that he had vacated the shop on 10-8-1968 and it may be allotted to any deserving person. No information about vacating the premises appears to have been communicated to the landlady. This shop was ultimately allotted to the Petitioner Saghir Ahmad son-in-law of Noor Mohammad on 17-10-1968 under the old U.P. (Temporary) Rent Control and Eviction Act 1947 (hereinafter to be referred to as the old Act). The landlady, however, was not willing to accept the Petitioner as a tenant. The Petitioner in order to strengthen his case moved an application u/s 3-A of the old Act and the rent of the premises vide order dated 14-8-1970 was fixed at Rs. 20/- per month. The landlady moved an application u/s 7-B of the old Act for payment of rent amounting to Rs. 1150/-. It may be mentioned that earlier after the allotment some revision "had been moved before the Commissioner but that was dismissed in default. This application u/s 7-B also, it appears, was not pursued. Ultimately an application was moved by the landlord for cancellation of the allotment order on the ground of fraud and misrepresentation. In the meantime U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as new Act) came into force and this application was pursued by the landlady in accordance with the provisions of the new Act. Opposite party No. 3 obtained report from the Inspector and after hearing the parties vide order dated 7-6-1973 held that Sri Akhlak Ahmad who was the son of Noor Mohammad who was father-in-law of the Petitioner Saghir Ahmad could not be deemed to be a family member of Saghir Ahmad as defined u/s 3(g) of the Act and it was Akhlak Ahmad who was running a business in the name of Akhlak Tent House in the shop in question and hence he came to the conclusion that it will be a case where the lawful tenant ceased to occupy the business and allowed it to be occupied by other person who was not the member of his family and declared the said shop in question as vacant and open for allotment/release. This order is dated 7-6-1973 and is Annexure-2. Thereafter the vacancy was notified regarding the shop vide order dated 12-6-1973 and objections about it being vacant were required to be submitted by 18-6-1973. This order is Annexure-3. It is in these circumstances that the Petitioner has come up before this Court impugning the two orders passed by opposite party No. 3 by means of the present petition. The petition has been contested on behalf of opposite party No. 4 Smt. Mehar Jahan, the landlady and it is asserted in the counter affidavit that the orders passed by opposite party No. 3 are legal, just and proper and call for no interference in exercise of discretionary jurisdiction vested in this Court under Article 226 of the Constitution. It is also asserted that only a vacancy has been declared and it will be open for the opposite party No. 4 to file a review application or challenge the allotment/release order by means of appeal before the District Judge.
3. I have heard the learned Counsel for the parties. The learned Counsel for the Petitioner argued that, the application moved by opposite party No. 4 before opposite party No. 3 was not maintainable as it was not covered within the purview of any of the provisions of the old Act. The second argument of the learned Counsel is that on a facts and grounds had been taken in earlier proceedings and that having been rejected by the Commissioner this present application was barred by principles of res-judicata. The third point pressed by him is that since the Petitioner was admitted as tenant by opposite party No. 4 it was not open to her to challange the same and on this he relied upon the proceedings initialed by opposite party No. 4 u/s 7-B of the old Act. I now propose to deal with each of the submissions raised by the learned Counsel for the Petitioner.
4. The learned Counsel for the Petitioner in order to substantiate his first argument about the maintainability of the application referred to the various provisions of the old Act and argued that cancellation of the allotment order on the basis of fraud and misrepresentation was not covered by any of the provisions and as such the application was not maintainable. It may be mentioned that there is an inherent jurisdiction in every authority to recall an order obtained fraudulently as, this power flows from the power which is conferred by statute to exercise it, inasmuch as every authority is required to exercise the power conferred by the statute in an unbiased atmosphere free from fraudulent circumstances. If fraud is exercised on an authority or court it is well recognised that the court or the authority from whom an order is obtained will have inherent power to rectify the mistake and to restore status quo ante. I, therefore, see no force in the contention of the learned Counsel for the Petitioner that the application for cancellation of the allotment order on the ground of fraud and misrepresentation was not maintainable either under the old or under the new Act.
5. The second contention of the learned Counsel for the Petitioner also in my opinion appears to be devoid of substance. In the first instance it may be mentioned that the application moved by opposite party No. 4 has not been filed to show that it was based on same facts as the present application. In absence of anything on record it is not possible for this Court to accept the contention of the learned Counsel for the Petitioner that before the Commissioner the allotment order was challenged on the ground of fraud and misrepresentation. On the other hand from the own assertions of the Petitioner made in paragraph 8, it appears, that, there was no such ground or averment in the grounds of revision before the Commissioner. That being so, it is not open for the learned Counsel for the Petitioner to maintain this argument nor can the dismissal of the application in default amount to a decision on the dispute raised between the parties. The second point also, therefore, in my opinion fails and is rejected.
6. The last submission of the learned Counsel for the Petitioner was that in an application u/s 7-B opposite party No. 4 had admitted the Petitioner as a tenant and the machinery of the court having been moved, the Petitioner would be deemed to have been accepted as a tenant in pursuance of the allotment order. It is well settled that a person who uses the premises is bound to make payment for the same. Mere presentation of an application would not amount to an adjudication. According to the own assertion of the Petitioner this application had not been pursued, and it has not been asserted as to what ultimately was the fate of this application moved by opposite party No. 4. That being so, I do not think it is open for the Petitioner to assert that he was the lawful tenant and accepted as a tenant. It is, however, a fact that no rent so far has been received by opposite party No. 4 till date since 1968. That being so, the landlady opposite party No. 4 ever since the allotment had not been treating the Petitioner as a tenant and she had always been questioning the legality of the allotment order. Opposite party No. 3 has clearly in his order investigated into each and every objection put forth by the Petitioner in assertion of his claim that it was he who was in occupation of the premises and had been carrying on the business in the name and style of Akhlak Tent House. It is not necessary to repeat the entire facts as they have been detailed out in the order itself. It would suffice to say that the Petitioner is income tax Practitioner and if he was operating out the business he ought to have proved it from the returns filed by him in the capacity of an Assessee before the income tax authorities. The Petitioner has mentioned in the writ petition that for his assistance he had taken help from Akhlak Ahmad. There is neither any document to show about the existing partnership nor is there any document to show that he was an employee of the Petitioner. In short there is nothing on the record of this case to convince this Court, about, the assertions made in the writ petition. Even in the course of argument the learned Counsel for the Petitioner could not bring anything substantial to the notice of the court to satisfy that it was he who was in actual possession of the shop in question, I, therefore, see no illegality in the order passed by opposite party No. 3.
7. As a last resort the learned Counsel for the Petitioner pointed out that apposite party No. 3 Sri S.A.H. Rahmani was biased as he happened to be the real brother of one Tahir Hussain, Superintendent, Anjuman ishahul Musalmin, Lucknow, with whom the Petitioner''s father-in-law had a litigation and had won the suit. The learned Counsel asserted that even a transfer application had been moved but that was rejected and Sri Rahmani thereafter passed the impugned order. It may be mentioned, that if transfer application was moved and rejected the Petitioner ought to have moved higher authorities for seeking relief and at this belated stage on this score in my opinion no grievance can be made.
8. On giving my anxious consideration to the facts and circumstances of the case and the arguments advanced before this Court I have no hesitation in holding that this case calls for no interference by this Court at this stage. The remedy under Article 226 of the Constitution is itself discretionary in nature and the impugned orders in my opinion call for no interference.
9. The result is that the writ petition fails and is accordingly dismissed. I, however, make no order as to costs. The interim stay order is vacated.
