J.C. Gupta, J.@mdashBy means of this writ petition, the petitioner seeks a writ of certiorari for quashing the order dated 7.4.94 passed by respondent No. 1. whose copy has been annexed as Annexure-5 to the writ petition.
2. The dispute relates to a portion of House No. 12/112 situate in Mohalla Gwaltoli, Kanpur Nagar. The petitioner is admittedly a Police Inspector. It is also not disputed that respondent No. 2 is the owner and landlord of the disputed accommodation. The proceedings were initiated before R.C. and E.O., respondent No. 1 on the application moved by respondent No. 2 wherein he prayed that the building in question be released in his favour after declaring the same vacant. The Rent Control Inspector was directed to make a spot inspection and he submitted (he report that the accommodation in question was in unauthorised occupation of the petitioner and the same was vacant. The petitioner filed objections before the R.C. and E.O. alleging therein that he has been in occupation of the same as tenant of respondent No. 2. However neither it was disclosed by him as to since when he came to occupy the building in question as a tenant nor did he file any proof in support of the said assertion that he has been inducted as a tenant in the building in question by respondent No. 2 himself. The case of the landlord was that the building was not let out to the petitioner and he has occupied the same without any order of allotment and it is another instance of house grabbing.
3. The Rent Control and Eviction Officer examined the mailer and came to the conclusion in the impugned order that the petitioner entered into occupation of the building in question without an order of allotment in an unauthorised manner. It has been held further that even assuming the case of the petitioner to be correct. In the absence of any order of allotment, his occupation was still unauthorised and a deemed vacancy stood created under the provisions of the Act. The present writ petition has been filed against this order of the Rent Control and Eviction Officer whereby vacancy has been declared.
4. I have heard Sri Shashi Nandan counsel appearing for the petitioner and Sri H, N. Singh counsel appearing for the respondent No. 2.
5. Learned counsel for the petitioner vehemently argued that a deemed vacancy u/s 12(1)(b) would be created only in a case where the landlord or tenant, as the case may be has allowed the building to be occupied by any person who is not a member of his family. He contended that the words "allowed" and "occupied" are significant and therefore, under this sub-clause, the landlord could be deemed to have ceased to occupy the building only where he has himself allowed another third person to occupy the building and it would not be attracted to a case where the third person makes entry into the building on his own without the tacit or implied consent of the landlord. Learned counsel for the petitioner argued that from the own allegations made by the landlord in his application made before the R.C. and E.O., it was clear that the landlord did not admit that the petitioner entered into the house in question with his consent either as a tenant or licensee and. therefore, Section 12 (1) (b) could not be attracted nor a vacancy under the deeming provision occurred.
6. Learned counsel further argued that as per the petitioner''s case, the building in question was let out to him by the landlord-respondent No. 2 and at the time of letting the provisions of U. P. Act No. X1I1 of 1972, were not applicable and thus the letting could not be said to have been made in violation of provisions of Section 13 of the Act.
7. On the other hand Sri H. N. Singh argued that before the Rent Control and Eviction Officer, the petitioner could not adduce any evidence to support his allegation that he was inducted in the building in question as a tenant by the landlord-respondent No. 2 nor it could be shown that the occupation of the petitioner was in accordance with the provisions of the Act and was not unauthorised. He also argued that the Rent Control and Eviction Officer has also in the alternative examined the claim of the petitioner about his having acquired tenancy rights in the building in question and a positive finding of fact has been recorded that the alleged letting was in contravention of the provisions of the Act inasmuch as no order of allotment was obtained from the District Magistrate as required under the provisions of the said Act. It has also been argued by respondents'' counsel that the petitioner does not possess in himself any rights enforceable in law and therefore, this Court should not entertain this writ petition.
8. As far as the first argument of the petitioner''s counsel is concerned, if we proceed on the assumption and on the premises that the petitioner''s occupation in the premises in question is that of a trespasser, this Court in exercise of its jurisdiction will not come to the rescue of such a person whose hands are themselves soiled with dirty water. The Court helps only those bona fide persons, whose hands are clean and where their enforceable rights have been infringed resulting in injustice to them. Where a police officer, who is himself a custodian of law and order trespasses in another''s property and then approaches this Court to exercise its jurisdiction under Article 226/227 of the Constitution, for protecting his unauthorised occupation, this Court will regard with disgust such a dissolute prayer. It is well-established law that a writ of certiorari is not a writ or right and Court may refuse to quash an order which even may look to be not very sound, for the reason that by doing so, the Court will allow another illegal act to be perpetuated.
9. Sri Shashi Nandan then argued that as per the petitioner''s case, he is not a trespasser but is a bona fide tenant. Before the Rent Control and Eviction Officer, it was not disclosed by the petitioner as to since when he came to occupy the building in question. Even in the writ petition, the petitioner has not clearly specified the date or the year when he came to occupy the building in question. However, a combined reading of the writ petition and the rejoinder-affidavit indicates that the petitioner''s case is that he started paying rent as soon as he came into occupation of the building in question and it is further admitted in the pleadings of the writ petition that he started paying rent only from the year 1992. It would thus follow that as per the petitioner''s own case, his tenancy commenced since 1992. Before the Rent Control and Eviction Officer, it was neither pleaded nor urged that the provisions of U. P. Act No. XIII of 1972, were not applicable to the building in question, when the building was let out to the petitioner. However before this Court, such a point has been raised for the first time and since this point involves an enquiry of disputed facts, such a plea cannot be allowed to be raised for the first time in writ petition as has been held in a number of decisions and it is suffice to make a reference to a few of them, they are
10. In view of the above decisions, the plea which is now sought to be raised on behalf of the petitioner cannot be allowed to be entertained as the said plea requires investigation as to when in fact the building in question was constructed.
11. Sri Shashi Nandan, however, argued that in the counter-affidavit, it is admitted to the respondent-landlord that the building in question was constructed in the year 1978 and the same was assessed for the first time in that year and, therefore, on this admitted fact, this Court can go into the aforesaid question. Sri H. N. Singh on the other hand submitted that in fact the building was already assessed prior to 1973 as is evident from the copy of the Assessment Register which has been annexed with the counter-affidavit and the building in question is shown in the same, meaning thereby that the building was already assessed on 1.4.1973 and he further submitted that the year 1978 in the counter-affidavit is a typing error and it actually should have been 1973. Assuming for the sake of argument that it was not a typing error, the resultant effect would be that the building was constructed in the year 1978, still it would have no effect on the rights of the petitioner inasmuch as period of ten years in that event expired in the year 1988 and as has already been found above, the petitioner came to occupy the building in question in the year 1992. which under law he could not occupy without obtaining an order of allotment from the District Magistrate and, therefore, his occupation was in contravention of Sections 11 and 13 of the Act. As per the provisions of Section 13. in the absence of an order of allotment, the occupation of petitioner would be deemed to be unauthorised and the building in question, would be deemed to be vacant. Therefore, even as per the own ease of the petitioner, he is not entitled to get any relief in this writ petition, as a vacancy stood created in law.
12. In the circumstances and for the reasons stated above, this writ petition is dismissed as having no merits.
In the circumstances, parties shall bear their own costs. The stay order shall stand vacated forthwith.
