Allahabad High Court
Navin Chandra Agarwal vs Ist Addl. District Judge, Nainital And ... on 12 September, 2000
Equivalent citations: 2000(4)AWC3070, 2000 ALL. L. J. 2969, 2001 A I H C 430, 2000 ALL CJ 2 1566, (2000) 2 ALL RENTCAS 644, (2000) 4 ALL WC 3070, (2000) 41 ALL LR 239
JUDGMENT R.H. Zaidi, J.
1. Present petition arises out of proceedings under Section 16 read with Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972), (for short the Act), and is directed against the order dated 2.8.2000 allowing the revision filed by the respondent No. 2 against the order passed by the Rent Control and Eviction Officer. Nainital, dated 25.5.1998 whereby the objection against the order of allotment dated 9.9.1992 made in favour of petitioner was rejected.
2. The disputes relates to a shop owned by respondent No. 3, Om Prakash Agarwal situated in Mohalla Rahamkhani, Doctor's Lane, Kashipur, district Udham Singh Nagar which was in occupation of the respondent No. 2, Ashok Kumar Bhutani as a tenant. On an application filed by the petitioner for allotment of the shop in dispute, proceedings were initiated. The Rent Control and Eviction Officer directed the Rent Control Inspector to make local inspection and submit a report. The report is said to have been submitted on 22.9.1992. Thereafter, notice to the landlord was issued to show cause as to why the shop in dispute be not declared vacant. No notice, according to the findings recorded by the authorities below, was issued to respondent No. 2. The Inspector reported that respondent No. 3 was the owner of the shop in dispute who has consented for allotment of the said shop in favour of the petitioner and that the shop was vacant. On the basis of the said report, the shop in dispute was declared vacant on 19.5.1992 and notice was issued inviting applications for allotment. The respondent No. 3 on 24.6.1992 applied for release of the shop in dispute in his favour under Section 16 (1) (b) of the Act. However, the said application was dismissed by the Rent Control and Eviction Officer as not maintainable, on 18.8.1992. Thereafter, an application is slated to have been filed on 26.8.1992 by the petitioner that he and Om Prakash (Landlord) have resolved their differences amicably and Om Prakash has agreed that the shop in dispute may be allotted in favour of the petitioner, on the basis of which allotment order was passed by the Rent Control and Eviction Officer in favour of the petitioner on 9.9.1992. It was on 14.10.1992 that an application was filed by respondent No. 2, under Section 16 (5) of the Act challenging the validity of the order of vacancy and allotment on the ground that the petitioner and Om Prakash have acted in collusion with each other and have procured the order of allotment wholly illegally without any notice to him and behind his back. It was stated that respondent No. 2 was in occupation of the shop in dispute and was paying rent to the landlord Shri Om Prakash, that there was dispute between him and the landlord regarding enhancement of rent. A suit for ejectment was also stated to have been filed by the landlord against him in the Small Causes Court which was dismissed on 7.7.1990. Since then, he has been depositing the rent in the Court of Munsif, Kashipur. The petitioner and Om Prakash have deliberately suppressed the material facts. Neither any inspection of the shop in dispute was ever made nor he was given notice either by the Rent Control Inspector or by the Rent Control and Eviction Officer and the order of declaration of vacancy as well as the order of allotment in favour of the petitioner were passed behind his back, they were, therefore, liable to be recalled. The Rent Control and Eviction Officer, however, dismissed the application filed by the respondent No. 3 by judgment and order dated 25.5.1998. Challenging the validity of the order passed by the Rent Control and Eviction Officer, respondent No. 3 filed a revision before the Court below under Section 18 of the Act contending that the order of allotment in favour of the petitioner was passed without following the procedure prescribed for the same under the law, it was, therefore, liable to be set aside. The Court below recorded clear and categorical finding that the landlord Om Prakash himself admitted that Ashok Kumar Bhutani, respondent No. 2 was his tenant in the shop in dispute. He himself on 24.6.1992 made an application for release, which was dismissed by respondent No. 1 as not maintainable. It was held by the revisional authority that the order dated 25.5.1998 suffered from material irregularity and that the Rent Control and Eviction Officer has acted against the provisions of law in passing the aforesaid order and allowed the revision and set aside the order dated 25.5.1998, the application dated 14.10.1992 was also allowed by his judgment and order dated 2.8.2000, hence the present petition.
3. Learned counsel for the petitioner vehemently urged that the respondent No. 1 was not right in holding that the order dated 25.5.1992 was passed illegally by the Rent Control and Eviction Officer and that the said order suffered from material irregularity. According to him, the order of allotment was passed after following the procedure prescribed for the same under the law, therefore, the impugned order dated 2.8.2000 was liable to be quashed.
4. I have considered the submissions made by learned counsel for the petitioner.
5. For declaring any building as vacant and allotting or releasing the same, the Act and the Rules framed thereunder provide the detailed procedure. The said procedure is to be followed before declaring any building as vacant. It is provided that on receipt of an application for release or allotment, the building in question is to be inspected by the Rent Control Inspector and inspection is to be made in presence of the parties concerned after giving them due notice. Rule 8 of Rules framed under the Act provides the procedure for ascertainment of vacancy which reads as follows :
8. Ascertainment of vacancy (Sections 12, 16 and 34 18)].--
(1) The District Magistrate shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected.
(2) The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of such objection.
(3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce."
6. In the present case, the provisions of aforesaid Rule were not followed by the Rent Control Inspector and inspection was made behind the back of the respondent No. 3. The provisions of the said rules are mandatory. A reference in this regard may be made to the decision in the case of Yogendra Tewari v. District Judge, Gorakhpur and others, 1984 (2) ARC 7 (SC) ; Dr. (Smt.) Keshav Devi v. Girdhari Lal Pahwa and others, (1987) (1) ARC 6 (SC) ; Kanta Gupta v. VIII Additional District Judge, Meerut and others, 1987 (2) ARC 108 ; Munna Lal v. R.C. and E. O., Mathura and another, 1998 (2) ARC 311 and Shankar Lal v. Additional District Judge, 1973 ARC 398.
7. In the above noted cases, it has been ruled by Hon'ble Supreme Court as well as by this Court that non-compliance of the provisions of Rule 8 renders the order declaring the vacancy as well as allotment or release, invalid.
8. After the building is declared vacant, the said building may be released or allotted in accordance with provisions of Section 15 read with Rule 10 of the Act. Any person aggrieved by the order of allotment or release, is entitled to file an application under Section 16 (5) of the Act. It was under the aforesaid provision that an application was filed by the respondent No. 3 who was the lawful occupant of the shop in dispute that he neither vacated the said shop nor it could be deemed vacant under any one of the provisions of Section 12 of the Act. There was nothing on the record to show that the respondent No. 3 was ever afforded an opportunity before order of vacancy and allotment were passed. The revisional authority, after going through the material evidence on record, recorded clear and categorical findings to the effect that admittedly, the respondent No. 3 was the tenant of the shop in dispute and he has been paying/depositing the rent under Section 30 of the Act. He was, therefore, legally entitled to move an application under Section 16 (5) of the Act. The application was moved on 14.10.1992 to set aside the order dated 9.9.1992 but his prayer was not considered properly and the said application was rejected on the ground that he was not the tenant of the disputed shop. It was further held that the Rent Control and Eviction Officer failed to consider the facts that Om Prakash himself admitted the fact that Ashok Kumar is the tenant of the shop in dispute. It was also held as under :
"Material irregularity has been committed in arriving at the conclusion. The important fact that Ashok Kumar occupied the premises as a tenant was not considered and any notice to him prior to passing the order on 9.9.1992 was not given. Thus, the impugned order has been passed against the provisions of law. It was necessary to issue notice to Ashok Kumar who was the tenant occupant of the disputed shop. He ought to have been heard prior to passing any order declaring the vacancy and allotting the disputed shop to Navin Chandra. Therefore, the prayer made by Ashok Kumar ought to have been allowed.
In view of the aforesaid discussion I am of the considered opinion that the order dated 25.5.1998 suffers from material irregularity. R.C. and E.O. in passing the impugned order has acted against the provisions of law and failed to appreciate the facts of the case properly. This order deserves to be set aside and the revision is liable to be allowed."
9. Having recorded the aforesaid findings, the revision was rightly allowed by the respondent No. 1 by its Judgment and order dated 2.8.2000. The operative portion of the said judgment is quoted below :
"The revision is hereby allowed. The order dated 25.5.1998 rejecting the application dated 14.10.1992 of the revisionist is hereby set aside. The application dated 14.10.1992 is allowed. S.D.M./R.C. and E.G., Kashipur, is directed to proceed in accordance with law and decide the application for declaring the vacancy and allotment after setting aside the order dated 9.9.1992. The parties shall bear their own costs."
10. Learned counsel for the petitioner utterly failed to demonstrate from the material on the record that the respondent No. 3 was never afforded an opportunity of hearing either before declaration of vacancy or thereafter before passing the order of allotment. From the evidence on the record, it was quite clear and established that he was the tenant of the shop in dispute, he never vacated the same nor committed any act on the basis of which shop in dispute could be deemed vacant.
11. In view of the facts and circumstances stated above and in view of the findings recorded by the respondent No. 1 that the order of allotment was obtained by the petitioner in contravention of the provisions of the Act and Rules framed thereunder, no case for interference under Article 226 of the Constitution of India is made out.
12. The writ petition fails and is dismissed in limine.