HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 7
Civil Misc. Writ Petition No.56863 of 2010
Gorakh Nath Yadav.........................................................Petitioner.
vs.
Manglesh Kumar Srivastava and others....................Respondents. *******
Hon'ble Rakesh Tiwari, J.
Heard Sri P.N.Saxena, learned senior counsel assisted by Sri N. K. Chaturvedi, for the petitioner and Sri Shyamal Narain, learned counsel for the respondents and Perused the record.
The facts of the case as culled out from records are that petitioner was inducted as tenant in the premises in dispute in 1963 for establishing a Saw Mill. He diversified his business in manufacture and sale of furniture and also constructed temporary tin shed over the pukka walls. Since licenses for saw mills were not renewed from 1998 under orders of the Apex Court the petitioner closed down his business of Saw Mill but alleged that his business of manufacture and sale of furniture continued and he started business of renting out "Patra and Ballis' etc. used in construction of buildings, these are said to be stacked in the open area of the premises in dispute.
Sri Manglesh Kumar Srivastava, respondent No.1, purchased the premises in dispute on 12.8.2004. It is claimed by the petitioner that when rent tendered to the landlord by money order was refused by the landlord, it was deposited by him regularly under Section 30 of Act No.13 of 1972. Thereafter landlord-respondent no.1 moved an application on 12.9.2007 under Section 16(b) of the Act for establishing his Hospital/Clinic on the ground that he is running his clinic in a rented premises and the landlord of that building has asked him to vacate it. The landlord also stated that the petitioner had constructed his own seven shops and also a residential accommodation within 200 meters from the premises in dispute from where he is carrying on his various businesses for the last 10 years and the premises in dispute is lying unused since then and has decayed as such in the circumstances the premises in dispute be released.
The Rent Control and Eviction Officer, in order to ascertain the factum of actual vacancy, got the premises in dispute inspected by the Rent Control Inspector(hereinafter referred to R.C.I.) under Rule 8 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. The R.C.I. after inspection, submitted his report dated 5.8.2008 to the effect that saw mill business of the petitioner is closed; that the verandah where the saw mill is installed is in a dilapidated condition but reported that activity of manufacture of furniture was seen and that some furniture was found stacked in the two of the rooms. He also referred to an injunction order passed in civil suit No.1026 of 2001, Gorakhnath Yadav vs. Smt. Vindhyavasni Devi opining that in view of the stay/injunction order which is effective upto 16.9.2008 proceedings for release may not be proper. This report is appended by the petitioner as Annexure 1 to the writ petition.
An application appears to have been moved thereafter by the landlord before the Rent Control and Eviction Officer (hereinafter referred to as RC & EO); that there is no stay/injunction order operating and therefore, the R.C.I. be directed to submit a fresh report (copy of which has been appended as Annexure 5 to the writ petition); Pursuant to orders of the RC & EO another inspection of the premises was made by the R.C.I. regarding which he submitted a fresh report dated 26.12.2008 to the effect that the tenant is not carrying on any business in the premises in dispute and on enquiry from neighbourhood he was informed that the tenant is carrying on his various businesses in the seven shops constructed by him at a distance of about 100 metres from the premises in dispute. The RC & EO considering the materials on record declared vacancy in the premises in dispute recording a finding that the tenant had shifted his furniture business and other businesses in the shops constructed by him nearby, and as the saw mill business had already closed down due to the non-renewal of licence as far back as in 1999 pursuant to the orders of the Apex Court. The relevant extract of the findings recorded by the Rent Control and Eviction Officer are thus:
"vf/kfu;e esa of.kZr micU/kksa ds vuqlkj ,sls Hkou @Hkwfe ds fjyht ds fcUnq ij Land lord o Tenant dh orZeku vko';drkvksa dh izkFkfedrk ds fcUnq dks ns[krs gq, lqfo/kk larqyu cuk;s j[kus dh n`f"V ls fu.kZ; fy;s tkus ds izfr izkfo/kku gS ,oa ,sls fopkj fofHkUu ofj"B U;k;ky;ksa ds Hkh gSA oknh fdjk;s ds Hkou esa fpfdRlh; iSFkkykth lsUVj dk;e djrs gq;s fDyhfud pyk jgk gS ,oa lacfU/kr edku ekfyd }kjk bUgs Hkou [kkyh djus gsrq okn i= esa vafdr dFkuksa ,oa cgl esa mBk;s x;s rdZ ds vuqlkj ckj ckj cy ns jgk gSA foi{kh oknxzLr [email protected] ls viuk vkjk e'khu dk dkjksckj cUn dj pqdk gSA ;g nksuks ckr foi{kh Lohdkj djrs gSaA foi{kh bl ckr dks Hkh ekurs gSa fd 200 ehVj dh nwjh ij vius vU; ifjtuksa ds lkFk nqdkus cuok;h x;h gS vkSj bUgh cuok;h x;h nqdkuksa esa buds ikfjokfjd QuhZpj dh nqdku pyk jgs gSa ,oa vkokflr Hkh gSA oknh foi{kh }kjk gh nqdkuksa dk pyk;k tkuk ,oa iw.kZr;k mlh esa fuokl djuk dgrs gSA oknxzLr [email protected] ls 200 ehVj dh nwjh ij cuh gq;h nqdkus @vkoklh; ifjn`'; ;fn foi{kh dk ugh gS] rks rRlacU/kh HkkbZ&Hkrhts ds LokfeRo lacU/kh izek.kd esa Hkou lacU/kh izek.ki=] fcdzhdj iathdj.k lacU/kh izek.ki=] uxj fuxe VSDl jlhn vkfn nkf[ky ugha fd;k x;k gSA blds foijhr oknh dh vksj foi{kh ds uke ls fuxZr VSDl jlhn ds izfr lanfHkZr [email protected] ds ckjs esa nkf[ky fd;k x;k gSA bl rjg oknh dks fDyhfud de iSFkkyksth lsUVj ds fy, [email protected] dh vko';drk of.kZr n'kk essa foi{kh ds lkis{k vf/kd gSA ,slh ifjfLFkfr esa lqfo/kk larqyu dh n`f"V ls Land lord gksus ds ukrs Land lord foi{kh ds lkis{k oknh dh vko';drk izR;sd n'kk esa Js"Brk j[krh gSA bl n`f"V ls oknh Land lord ds i{k esa oknxzLr @Hkwfe dk fjyht fd;s tkus dh izklafxdrk uSlfxZd U;k; dh n`f"V ls izdkf'kr gksrh gSA
iz'uxr izdj.k esa foi{kh dh vksj ls iwoZ Land lord foU/kokfluh nsoh ds fo:) vLFkk;h fu"ks/kkKk lacU/kh okn la[;k&[email protected] esa ikfjr vLFkk;h fu"ks/kkKk fnukad 16-09-08 rd izHkkoh gksus lacU/kh nkf[ky iz'uksRrj ,oa cSukes ds vk/kkj ij cus Land lord Mk0 exays'k dqekj ds fo:) okn la[;k&[email protected] esa ikfjr fu.kZ; ds fo:) foi{kh }kjk izLrqr izdh.kZ okn la[;k [email protected] esa fnukad 10-12-2009 dks ikfjr vLFkk;h fu"ks/kkKk ds dze esa oknh dh vksj ls bl izdj.k esa fo/kkukuqlkj fu"dklu dh izfdz;k dks ns[krs gq, vLFkk;h fu"ks/kkKk esa nh x;h ds vuqlkj vLFkk;h fu"ks/kkKk bl U;k;ky; dks foi{kh dks oknxzLr Hkou @Hkwfe ls fu"dkflr djus vFkok oknh ds i{k esa fjyht djus ds lEcU/k esa ck/kd u gksus ij cy fn;k tk jgk gS vkSj foi{kh LFkxukns'k dks n`f"Vxr dksbZ dk;Zokgh fd;k tkuk lEHko u gksus dh vksj cy fn;k tk jgk gSA vLFkk;h fu"ks/kkKk esa nksuks U;k;ky;ksa us rF; fy[krs gq, vLFkk;h fu"ks/kkKk ikfjr dh x;h gS fd "xksj[kukFk dks fcuk fof/klE;d izfdz;k viuk;s cyiw.kZd okndkjh vof/k esa csn[ky u fd;k tk,A" bl dze esa fof/k lE;d izfdz;k Land lord o Tenant ds chp fookn ds fu"rkj.k ds dze esa m0iz0 vcZu fcfYMx (Regulation of letting, Rent and eviction) ,DV 1972 dh /kkjk&16ch ds vUrxZr fufgr izfdz;k ds vuqlkj i{kksa dks bl U;k;ky; ij xq.kkoxq.k dh lquok;h dk volj nsrs gq,] lk{; ysrs gq, fopkj.k dh dk;Zokgh lEiUu fd, tkus dks n`f"Vxr rFkk ;gh izfdz;k fof/k }kjk fof/k lE;d izfdz;k gksus ds dkj.k vLFkk;h fu"ks/kkKk }kjk lUnfHkZr dh x;h vkKfIr bl U;k;ky; ds fy, ck/;dkjh vlj ugha Mkyrh gSA vf/kfu;e ds vuqlkj ;g U;k;ky; fof/k lEer izfdz;k dk vuqlj.k djrs gq, dk;Zokgh dj jgk gSA of.kZr n'kk esa vLFkk;h fu"ks/kkKk dk izHkko bl U;k;ky; dh fof/k lEer dk;Zokgh ij ugha iM+rk gSA bl dze esa oknh dh vksj ls izLrqr fof/k O;oLFkk 1999 ;w0ih0 vkj0lh0lh0] ist&233 ij esa ek0 mPp U;k;ky; }kjk lUnfHkZRk lh-,e-MCyw-lh- ua0&[email protected] fuf.kZr fnukad 10-12-98 txnh'k izlkn cuke egkjkt dk'kkhjkt /keZdk;Zfuf/k okjk.klh o vU; us iSjk&8 esa nh x;h O;oLFkk dh vksj fnyk;k tk jgk /;ku U;k;ksfpr yxrk gSA blds vuqlkj fopkjk/khu bl ekeys esa vf/kfu;e dh /kkjk &16 ds vUrxZr " Injunction order not to evict except according to law-Does not bar the release by R.C.& E.O." O;oLFkk gSA ek0 mPp U;k;ky; }kjk nh x;h bl O;oLFkk ds vuqlkj vLFkk;h fu"ks/kkKk ds lUnfHkZr vkns'k vf/kfu;e dh /kkjk&16 ds vUrxZr fopkj.k ,oa fu"rkj.k ds fy, bl U;k;ky; dks ckf/kr ugha djrh gSA] rRdze esa /kkjk&16 ch ds vUrxZr lexz igyqvksa dks ns[krs gq, fu.kZ; nsuk U;k;ksfpr gSA
oknh dh vksj ls ,0vkj0lh0 2002 ¼2½ ist&517 okor vf/kfu;r dh /kkjk&16 esa of.kZr osdsUlh ds fcUnq ij /kkjk&12 ds rF;ksa dks ns[krs gq, izdj.k dks fuLrkfjr fd;s tkus ds fcUnq ij] 2001 ;w0ih0 vkj0lh0lh0 ist&350 dh O;oLFkk ds vuqlkj Land lord ds i{k esa fjDrh fookfnr gksus ds ckn Hkh ifjlj fjyht fd;s tkus ds fcUnq ij bl dze esa fn[kk;h x;h fd Land lord dh vko';drk izklfxd gksus ij ,slh n'kk esa Hkh fjyht dk vkns'k gksxkA ;w0ih0 1999 vkj0lh0lh0 ist&233 vLFkk;h fu"ks/kkKk izHkkoh u gksus ds fcUnq ij fn[kk;h x;h gSA foi{kh dh vksj ls ,0vkbZ0vkj0lh0ts0 1987 (2) ist&396 o 397 dh O;oLFkk Land lord dh vko';drk dh okLrfodrk ds fcUnq ij U;k;ky; dks xEHkhjrk ls ns[ks tkus vkSj oknxzLr Hkou @Hkwfe ds Vacant gksus dh Hkh okfLrdrk ij xgurk ls ijh{k.k fd;s tkus dh vksj /;ku fnyk;k gSA
oknxzLr [email protected] ds Vacant /Deemed to Vacant ds fcUnq ij mijksDr foospuk dh tk pqdh gSA oknh dh okLrfod vko';drk fdjk;snkjh ij fDyhfud de iSFkksykth pyk, tkus dh LohdkjksfDr foi{kh }kjk fd, tkus dks n`f"Vxr xq.knks"k ij oknh dh oknxzLr [email protected] dh vko';drk foi{kh ls vf/kd gSA Land lord ds i{k esa lanfHkZr ije vko';drk dks n`f"Vxr ,oa Tenant foi{kh }kjk oknxzLr [email protected] ls viuk dkjksckj @O;olk; izR;{k :i ls cUn dj nsus dks n`f"Vxr MhEM Vw osdsUlh Hkh izekf.kr gSA rRdze oknxzLr Hkou @Hkwfe dks] okn dks Lohdkj djrs gq, oknh ds i{k ds fy, fjyht fd;k tkuk U;k;ksfpr yxrk gSA
vkns'k
vr% vuq'khyu ds izLrj esa fudkys x;s fu"d"kZ ds vk/kkj ij U;k;fgr esa nkok oknh Lohdkj djrs gq;s oknxzLr [email protected] oknh Land lord ds i{k esa fjyht fd;k tkrk gSA ckn vko';d dk;Zokgh i=koyh ;Fkkfof/k nkf[ky n¶rj gksosA
fnukad% vxLr 23] 2010 g0
¼,l0,l0 JhokLro½
vij ftykf/kdkjh&iz'[email protected];k fu;U=.k
,oa fu"dklu vf/kdkjh] xksj[kiqjA"
The petitioner preferred Civil Revision No.4 of 2010, Gorakhnath Yadav vs. Manglesh Kumar Srivastrava, before the District Judge Gorakhpur, who vide his order and judgment dated 30.8.2010 directed part release of the premises in dispute i.e. tin shed measuring 20' x 35' only.
In the aforesaid backdrop the petitioner has challenged the validity and correctness of the orders impugned dated 23.8.2010 passed by the Rent Control and Eviction Officer and order dated 30.8.2010 passed by the District Judge, Gorakhpur.
Counsel for the petitioner submits that Section 12 of the Act provides that a tenant shall be deemed to have ceased to occupy the building or part thereof on three conditions enumerated therein: i.e.
(a) He has substantially removed his effect there from.
(b) He has allowed it to be occupied by any person who is not a member of his family; and
(c) In case of non residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
Referring to the application for release, (copy of which has been appended as Annexure 3 to the writ petition) he submitted that there is absolutely no assertion in it that the petitioner had substantially removed his material effects from the tenanted premises in dispute nor there is any assertion that the petitioner has allowed the premises to be occupied by a person who is not a member of his family or that the petitioner has admitted any person who is not member of his family as partner in the business hence the premises in dispute can not be deemed to be vacant, therefore the application of the landlord for relief under Section 16(b) of the Act was not maintainable.
It is stated that the R.C.I. in his report dated 5.8.2008, submitted to the RC & EO after inspection of the premises, had as a matter of fact found that the saw mill established by the petitioner-tenant is lying closed but there is some activity of manufacture of furniture which is being carried on and that some chairs, table and bed were found stacked in the rooms of the premises in dispute and that petitioner was also in possession of tin shed measuring 20' x 35'. As regards the veranda where the saw mill was installed is reported to be in a dilapidated condition. The report dated 5.8.2008 is as under:-
"d`i;k Mk0 eaxys'k dqekj JhokLro iq= Lo0 Jh vk|k izlkn JhokLro] fuoklh jkIrhuxj MkDVlZ buDyso 'kgj xksj[kiqj ds vkosnu i= tks jsUV dUVzksy ,DV dh /kkjk 16 ch esa bl vk'k; dk fn;k x;k gS fd eqgYyk 'kkgiqj iqjkuh vlqju pqaxh 'kgj xksj[kiqj esa edku [kiMSy tks eSaus ewy Lokeh Jherh foU/;okfluh nsoh] dkUrhyky o Jh ujflag yky ls tfj;s iathd`r cSukek fnukad 12&08&04 dks fy;k gS A iz'uxr edku esa Jh xksj[kukFk ;kno iq= Lo0 Jh f'koewjr ;kno fuoklh eqgYyk iqjkuh vlqjy paqxh '''kkgiqj '''kgj xksj[kiqj us ewy Lokeh Jherh foa/;okfluh nsoh vkfn ds le; ls fdjk;s ij jgrs vk jgs gSa blesa ;s vkjk e'khu ,oa O;kikfjd dk;Z Hkh djrs jgs gSa orZeku le; esa vkjk e'khu cUn gS ysfdu QuhZpj dk dk;Z dj jgs gSa A lUnfHkZr izdj.k dh tkap vkids vkns'kkuqlkj fd;k x;k] ftldk fooj.k fuEu izdkj gS %&
1& iz'uxr izdj.k esa Mk0 eaxys'k dqekj JhokLro ,oa izfroknh Jh xksj[kukFk ;kno dks fyf[kr uksfVl nh xbZ fd vius vius lk{;ksa ds lkFk ekSds ij mifLFkr gksdj tkap esa lg;ksx djsa A Mk0 eaxys'k dqekj JhokLro us vius jftLVMZ cSukes dh QksVks izfr ,oa iz'uxr [email protected] Hkw[k.M dk uD'kk th0 Mh0 ,0 ls Lohd`r djkdj izLrqr fd;k gS A Mk0 eaxys'k dqekj JhokLro dk dFku gS fd iz'uxr Hkou dk lEiw.kZ Hkkx {kfrxzLr gks pqdk gS Jh xksj[kukFk ;kno Vhu 'ksM j[kdj voS/k :i ls iSlk ysus gsrq dCtk fd;s gSa bUgksaus c'kkjriqj eqgYys esa viuk futh edku cuok;k gS vkSj mlh esa jg jgs gSa rFkk viuk O;kikj djrs gSa A eSa lUnfHkZr Hkw[k.M ij uflZx [email protected] fj;k;lh Hkou cuokuk pkgrk gWw eSa cD'khiqj esa Dyhfud fdjk;s ij ysdj viuk izSfDVl djrk gWw A eq>s vius fy, iz'uxr Hkw[k.M ij fueZk.k djkuk vko';d gS A eSaus o"kZ 2004 esa mDr Hkw[[email protected] edku cSukek djk;k gS A blfy, tks iwoZ ds ewy Lokeh us Jh ;kno dks mDr Hkou fdjk;s ij fn;k Fkk ysfdu vc Hkou Lokeh eSa gWw blfy, Jh ;kno dks csn[ky fd;k tk; A cSukek ysus ds rhu o"kZ ds i'pkr fdjk;snkj dks csn[ky gsrq vkosnu i= fn;k gS A
2& lUnfHkZr izdj.k ds lEcU/k esa Jh xksj[kukFk ;kno izfroknh dk dFku gS fd bl Hkou esa ewy Lokfe;ksa ls o"kZ 1963 ls ysdj fdjk;s ij jg jgk gWw rFkk mlh le; ls vkjk e'khu] dejstkr esa ydMh dh fpjk;h ,oa QuhZpj cukus dk dk;Z djkus yxs A orZeku le; esa iz'uxr Hkou dk fdjk;k flfoy tt twfu;j fMohtu xksj[kiqj ds U;k;ky; esa izdh.kZ okn la0 [email protected] vUrxZr /kkjk 30 jsUV dUVzksy ds vUrxZr xksj[kukFk ;kno cuke Mk0 eaxys'k dqekj JhokLro esa tek dj jgk gWw A Jh xksj[]kukFk }kjk izLrqr lk{;ksa esa buds }kjk U;k;ky; flfoy tt] lhfu;j fMohtu] xksj[kiqj okn la- [email protected] xksj[kukFk ;kno cuke Jherh foUnokfluh nsoh vkfn nkf[ky fd;k x;k gS vkSj mlh Hkou ij Lfkxu vkns'k izkIr fd;k x;k gS tks fnukad 16&09&2008 rd izHkkoh gS blesa Li"V fd;k x;k gS fd os oknh dks fof/k fo:) rjhds ls osn[ku u djsa vkSj u fdlh izdkj ds {kfr igqWpk;saA
Jh ;kno }kjk fdjk;s tek djus dk jlhn Hkh izLrqr fd;k x;k gS A tWkp ds le; ;g rF; izdk'k esa vk;k fd Jh xksj[kukFk ;kno }kjk yxkbZ xbZ vkjk e'khu cUn gS rFkk mldk dkjksckj orZeku le; esa ugha gks jgk gS nks dejksa esa QuhZpj fueZk.k dk dk;Z gks jgk Fkk A dqlhZ] est] Vscy] osM dk LVkd miyC/k ik;k x;k fdlh ds fuokl gksus dh dksbZ lcwr ugha feyk O;kikfjd xfrfof/k;kW ifjyf{kr gSa A Jh ;kno ds dCts esa 20 QhV pkSMk ,oa 35 QhV yEck Vhu 'ksM ds nks dejs ,oa cjkenk gS A cjkens dk ftlesa vkjk e'khu gS dk vf/kdka'k Hkkx {kfrxzLr gks pqdk gS A QuhZpj okys dejs lgh gSa vxzHkkx ds [kkyh HkwHkkx ij iVjs ,oa cYyh j[ks gSa tks fdjk;s ij Jh ;kno }kjk Hkou cukus gsrq fn;s tkrs gSa A lanfHkZr izdj.k esa nksuksa i{kksa }kjk izLrqr lk{;ksa ,oa tWkp ls Li"V gksrk gS fd bl [email protected][k.M ij U;k;ky; nhokuh esa okn izLrqr gS rFkk ml ij LFkxu vkns'k ikfjr gS A blfy, iz'uxr izdj.k esa bl Lrj ls dksbZ dk;Zokgh fd;k tkuk lEHko ugha gS A pwWfd okn U;k;ky; esa py jgk gS blfy, Mk0 eWxys'k dqekj JhokLro dks bl izdj.k esa mDr U;k;ky; ls dksbZ vuqrks"k izkIr ugha gks ldrkA vr% fnokuh esa nkf[ky okn esa tc rd dksbZ vafre fu.kZ;@ vkns'k ikfjr ugha gks tkrk rc rd bl izdj.k dks LFkfxr j[kk tkuk U;k;ksfpr gksxk A
lknj vk[;k lEizsf"krA"""
It is then stated that second report dated 26.12.2008 was obtained by the landlord by manipulating the R.C.I. who was to retire on 30.12.2008. The Rent Control Inspector reported that before conducting the inspection of the premises in dispute he had notified the parties i.e. Dr. Mangesh who was present at the time of inspection and on enquiry he was informed by the neighbours that Sri Gorakh Nath Yadav the tenant had constructed some shops and a residential house on the main road to Maharajganj in an about one acre land and he would be found there conducting his business from those shop.
Thereafter the premises in dispute was again inspected in the presence of the parties and it was found by the R.C.I. that there is no building in existence worth the name and there is only a tin shed 20' x 35' in which there is semblance of two rooms and a veranda which are highly damaged and are without any doors, beams, grills and ventilators and that neither there was any sign of any business activity being carried on in the premises in dispute nor it was in a habitable condition.
For ready reference the report dated 26.12.2008 of the Inspector is reproduced below. It reads thus:
"d`i;k okn la0 @07 vUrxZr /kkjk&16 ch0 ;w0 ih0 ,DV la0 13] 1972 esa Mk0 eaxys'k dqekj JhokLro cuke xksj[kukFk esa nh xbZ vk[;k fnukad 05-08--2008 ds laca/k esa voxr djkuk gS fd izfri{kh xksj[kukFk ;kno }kjk U;k;ky; flfoy tt] lh0 Mh0 eq0 ua0 [email protected] esa nk;j okn esa ikfjr vkns'k ,oa /kkjk & 16 ch0 ds laca/k esa vfxze dk;Zokgh ds fy, jsUV dUVzksy ,DV dh /kkjk 34 esa iznRr vf/kdkjksa dk laKku ysrs gq, dk;Zokgh fd;k tkuk nks i{kksa ds fy, mfpr gksxk A lUnfHkZr izdj.k esa orZeku le; esa fLFkfr bl izdkj gS fd ekSds ij iqu% fookfnr LFky tkdj tWkp dh xbZ] tks 'kkgiqj iqjkuh paqxh xksj[kiqj esa fLFkr gS A iwoZ esa nksuksa i{kksa dks lwfpr fd;k x;k Fkk A ekSds ij Mk0 eaxys'k dqekj JhokLro mifLFkr feys] Jh xksj[kukFk ;kno ls lEidZ djus dh dksf'k'k dh xbZ] rks vkl ikl ds yksxksa us crk;k fd fookfnr LFky ls yxHkx 100 ehVj if'pe mRrj rjQ xksj[kiqj egjktxat eq[; lMd ij 8&10 nqdku ,oa vkoklh; Hkou yxHkx ,d ,dM esa gS rFkk mudk futh gS ogha feysaxs] mlh esa QuhZpj dk O;kikj dk;Z ,oa fuokl Hkh djrs gSaA eSaus muls lEidZ dj mHk; i{kksa ds lkFk fookfnr LFky dk fujh{k.k fd;k rks tWkp esa fuEu rF; orZeku le; esa mtkxj gqvk %&
Hkou yk;d dksbZ Lfkku ugha gS ek= ,d Vhu 'ksM ftldh pkSMkbZ X yEckbZ 20' X 35' dk cuk gS A ftlesa nks dejs ,oa cjkens ds :i esa gS tks fcuk njokts[ taxys ,oa jks'kunkj ds gSa rFkk vf/kdka'k Hkkx {kfrxzLr gS A orZeku le; esa O;kikj djus dk dksbZ y{k.k ifjyf{kr ugha gqvk A iz'uxr fookfnr LFky fjgk;'k yk;d Hkh ugha jg x;k gSA"
The petitioner-tenant filed objections to this report but alleges that no orders were passed by the authority deciding his objections. According to the counsel for the petitioner there was no basis or evidence on record before the RC & EO that petitioner-tenant had shifted his business from the premises in dispute, except the aforesaid manipulated report dated 26.12.2010 submitted by the R.C.I. just prior to his retirement on 30.12.2010. It is stated that the RC & EO had neither any authority to get the premises inspected for a second time nor there was any provision for second inspection in the Act and Rules framed thereunder. It is stated that Rule 8 of the Rules framed under the Act as amended with effect from 24.8.2000 do not provide either for a second inspection or for an inspection by the Rent Control Inspector; that after amendment, Rule 8(1) now provides that before making any order of an allotment or release declaring a premises likely to be vacant or otherwise vacant, the District Magistrate shall get the same inspected by a "Gazetted Officer"; and that this provision under Rule 8 is mandatory ? But the inspection report submitted by R.C.I. in the instant case is not by a gazetted officer hence it vitiates the whole of the proceedings and as a consequence the orders impugned are liable to be quashed.
It is then submitted that none of the elements required for applicability of Section 12 of the Act, have been found by the court below in the instant case, yet the premises in dispute has been declared vacant and released in part, particularly when the second report is contradictory to the first report submitted by him.
It is argued that the RC & EO relying solely upon the second report of the R.C.I. dated 26.12.2008, completely ignored the earlier report dated 5.8.2010 by him holding that since the saw mill business has admittedly been closed down, the veranda tin shed and the rooms in which the saw mill business was carried on before its closure, have collapsed; that the business of manufacture and sale of furniture is now being carried on from the shops constructed by the tenant about 100 meters away and not from the premises in dispute, which means that the building is vacant, hence the finding of comparative hardship of the landlord to be greater than the tenant is wholly illegal and completely vitiated.
The order of the Revisional Court dated 30.8.2010 rejecting the revision is said to be wholly illegal and is assailed contending that:
(a) The Revisional Court has referred to the argument of the tenant that the rules required that the District Magistrate shall before making any order of release of a building which is alleged to be vacant, get the same inspected by the Gazetted Officer but in the present case the provision has not been complied with and the Rent Control and Eviction Officer has based his order of release only on the malafide report of the Rent Control Inspector which is not even admissible but the Revisional Court has not decided this legal plea raised by tenant.
(b) The Revisional Court has not examined even the findings recorded on merits. There is neither any allegation nor any evidence of the proof of the elements required under Section 12 for declaration of a commercial building as vacant even if for the time being business is not being carried on from the premises in question the premises could not be deemed to be vacant.
(c) It is lastly submitted that the Revisional Court has on one hand held a part of the premises i.e. two rooms to be vacant under Section 12 and the other part (tin shed) to be in occupation of the tenant. Under Section 12 a part of the building cannot be deemed to be vacant and a part to be occupied by the tenant hence proceedings for release under Section 16(b) and Section 21(1)(a) could not be carried on simultaneously for a part of the building, under one tenancy, and for this reason also the judgment and order of the Revisional Court is wholly illegal and unsustainable as such the writ petition is liable to be allowed quashing the orders dated 23.8.2010 and 30.8.2010 impugned in the writ petition.
Per contra learned counsel for the respondents submits that, initially, the property in dispute situate at Mohalla, Shahpur, near Purani Asuran Chungi, Gorakhpur, was taken on rent by the petitioner for the specific purpose of running a saw mill, from the erstwhile owner of the said property on a monthly rent of Rs.80/- which had been enhanced up to Rs.160/- over a period of time. It is stated that the petitioner himself admits that the business of saw mill was closed as far back as in 1999 pursuant to the orders of the Supreme Court even before the proceedings under U.P. Act No.13 of 1972 were initiated by the present respondent/ landlord and there is no proof or even evidence such as registration under Shops and Commercial Establishment Act as to from which date he had started business of manufacture of furniture and other businesses.
It is also stated that the present respondents/landlord purchased the premises in dispute from its previous owners on 12.8.2004 by means of a registered sale-deed and, thereby, became the owner/landlord of the property in question; that following the closure of the saw-mill business the tenant had used the premises for furniture business for some time; that the premises was rented out to the tenant petitioner for business of saw mill which ceased to exist pursuant to the orders of non renewal of licence passed by the Apex Court; that petitioner purchased a property about 200 metres away from the rented property whereupon he admittedly constructed his residence, as well as 8-10 shops for his alleged furniture and other businesses; that the property in dispute become dilapidated and the roof of the room and tin sheds fell down due to its non use and neglect as such reducing the premises to a ruinous state; that petitioner in these circumstances had removed all his effects substantially from the rented premises, but continued to deposit rent in court under Section 30 of U.P. Act No.13 of 1972 as the landlord alleged to accept the same. The counsel for the respondent-landlord submitted that alleged rent was being deposited by the tenant in court only for the purpose of symbolic possession in order to extract money from the landlord for vacating it who in fact bonafide needed t he premises for construction of a hospital/clinic therein. Therefore, even though the tenanted premises was not put to use for about 10 years and was in dilapidated and ruinous condition with no doors and windows, grill or ventilators, the tin sheds having rotted had fallen down the tenant was holding it demanding Rs.50,000/- for putting the landlord in its possession.
It is next submitted that the petitioner had filed a suit for injunction against the present respondents/landlord in which he had succeeded in obtaining an order to the effect that he shall not be evicted from the property in question "except by adopting the due process of law". The respondent/landlord is a pathologist and doctor by profession. He is running his clinic, on rent, from the premises of one Dr. Chakravorty who has asked him to vacate his house as such, he is in genuine and bonafide need to construct his own clinic-cum-residence on the property in dispute which is lying vacant but in symbolic possession of the petitioner who has in fact has built his own shops from which he is running his various business. The request of the landlord to the tenant to vacate the tenanted portion as he already has built his own shops was refused by the petitioner and he demanded an exorbitant amount for handing over the vacant possession of the premises in dispute to the landlord. Faced with this situation, the respondent initiated proceedings before the RC & EO, Gorakhpur for release of the property in question, under Section 16(1)(b) of U.P. Act No.13 of 1972, by means of an application dated 12.9.2007 who then got the premises inspected by the R.C.I. under Rule 8 of the Rules framed under the Act. The Inspector after inspection of the premises submitted his report dated 5.8.2008 without making a prior inspection under impression that injunction order was operating in favour of the tenant in Civil Suit No.1026 of 2001, Gorakh Nath Yadav vs. Smt. Vindhyavasni Devi. It is stated that since in the report the R.C.I. had wrongly stated that there was an injunction order passed by the Civil Court operating in favour of the tenant in respect of the property in dispute, the respondent filed his objections, dated 12.11.2008 requesting for a fresh and detailed inspection as there was no injunction to evict the tenant if he is being evicted in accordance with law and for this purpose the proceedings under the Act had been initiated; that it is in this context of the respondent's objection/application for fresh inspection that the Rent Control and Eviction Officer by his order dated 14.11.2008 directed the Rent Control Inspector to submit a clear and detailed inspection report with regard to the premises in dispute.
In pursuance thereof the Rent Control Inspector inspected the premises for the second time and submitted his report dated 26.12.2008 that persons in the neighbourhood had informed him that the petitioner, Gorakhnath Yadav, had built his own residence and some shops about 100 meters away from the premises in dispute on the main road and was carrying on his furniture and other business from there; that since the tenant in whose presence the premised was inspected could not mislead the R.C.I. this time the Inspector after through inspection submitted his report that the premises was in very dilapidated and ruinous condition so much so that it was not worthy of habitation as the tenant, this time, was not able to hide the condition of the rooms by stacking furniture and putting ramshackle tin shed over the building.
He also reported that there was no sign of any business activity of manufacture of furniture being carried on at the spot. It is stated that the petitioner tenant then filed his objections dated 13.11.2009 along with a supporting affidavit, both, before the RC & EO but has deliberately not annexed copy of his objections dated 13.11.2009 in the High Court as it does not contain any objection regarding inspection not having been made by a Gazetted Officer under Rule 8 of the U.P. Urban Buildings (Regulations of Letting, Rent & Eviction) Rules, 1972 as is vehemently argued by the learned senior counsel for the petitioner-tenant. It is urged that though the petition draws support from the first report dated 5.8.2008 by the same R.C.I. yet he disputes the second report on ground of Rule 8 which has been submitted; that in these facts and circumstances the objections of the tenant relating to the second inspection, report filed by the Rent Control Inspector has been brought on record of the writ petition by the landlord through counter affidavit filed by him in which the correct averments and condition of the building tin sheds on the spot is detailed which have rightly been relied upon by the RC & EO in his order dated 23.8.2010.
It is then submitted that the RC & EO had allowed full opportunity to the petitioner tenant as well as the landlord to adduce evidence in support of his claim to establish that there was vacancy or not. After exchange of the pleadings and on consideration of all the material evidence on record, the Rent Control and Eviction Officer by a detailed and reasoned order dated 23.8.2010 released the property in dispute in favour of the respondent/landlord holding the shops and the residence had been constructed by the tenant about 200 meters away from the premises belonging to him and not his relatives and he is liable to be evicted from it.
It is contended that the Court also has clearly observed that the petitioner/tenant had failed to produce any documentary evidence to substantiate his contention that he was not the owner of the shops and the residential house constructed by him whereas the respondent had produced tax receipts in respect of the aforesaid shops and house of the tenant issued in his name and had established that the tenant had constructed his own shop as such would not suffer any hardship. In support of his contention that petitioner has shifted all his business in these shops from the premises in dispute, counsel for the respondent relied upon the fact that petitioner was not present at the time of second inspection and was called from his shops where he was conducting his business and had no time to put tin shed or stack furniture, ballies and patras from his shops to conceal the ruinous condition of the premises in dispute.
It is further contended that the Rent Control and Eviction Officer has also recorded a clear finding to the effect that the business of saw mill, for which purpose the premises had been rented out to the tenant/petitioner, had admittedly closed and the saw mill had not even been operated since 1999 and that the furniture and other businesses were actually being conducted by the tenant/petitioner from his own new shops constructed by him.
It is submitted that as regards the question of injunction order granted by the Civil Court allegedly in favour of tenant/petitioner, it is found that the said injunction order was only to the effect that the tenant/petitioner was not to be evicted except in accordance with due procedure prescribed by law and since the proceedings under U.P. Act No.13 of 1972 were initiated for eviction of the tenant in accordance with law, hence the said injunction order was not a bar to the release of the property. It is stated that last but not least, the Rent Control and Eviction Officer has recorded a clear cut finding of fact vide order dated 23.8.2010 that the tenant/petitioner had substantially removed his effects and was not carrying on any business from the property in dispute and that the landlord/respondent was in genuine and bonafide need of the premises in question, therefore, the writ petition is liable to be dismissed with costs.
The order dated 23.8.2010, passed by the Rent Control and Eviction Officer, was assailed by the tenant in Civil Revision No.4 of 2010, Gorakhnath Yadav vs. Dr. Mangalesh Kumar Srivastava, before the District Judge, Gorakhpur who vide his order and judgment dated 30.8.2010 partly dismissed the revision holding that the tenant shall remain in possession only of tin shed 20 ft. x 35 ft., thus:
"This is revision against the order dated 23.8.10 passed by Rent Control and Eviction Officer, Gorakhpur in Case No.58/7 ordering the eviction of O.P.-revisionist from the disputed premises U/S.16-B of U.P.Act No.13 of 1972.
In the disputed premises the revisionist was tenant w.e.f. 1963. Earlier the rent was Rs.80/- per month but subsequently raised to Rs.160/- per month. The disputed premises was purchased by applicant-O.P. On 12.8.04 form the original owner and he filed this application before Rent Control and Eviction Officer, Gorakhpur for eviction of the tenant from the disputed premises on the ground that the disputed premises is fallen vacant as a result of shifting his business of cutting of loss of goods with Saw from the disputed premises. The O.P.-revisionist has contended that in 1989 he filed Suit No.810/89 against the original owner which is resulted in compromise and the suit No.1026/01 was filed in which an injunction was passed which is till effective against the present landlord. Also O.S.499/08 was filed in which trial court refused injunction but in Misc. Case No.12/09 injunction was given.
Before the trial court parties have led their evidence through affidavit. P.W.1 S.R.Shukla, P.W.2 P.K.Singh, D.W.1 is Tarkeshwar and D.W.2 is Triloki Nath Yadav and D.W.3 is Prem Jot Singh. Interestingly two reports of Rent Control Officer dated 5.8.08 and 26.12.08 are present. In the earlier report he has supported the tenant but in the later report he has supported the landlord and mentioned that premises in suit is vacant.
Trial Court has based his judgment on the subsequent report of the Rent Control Officer and has given the finding that injunction order passed in the civil suit is not effective against eviction by Rent Control and Eviction Officer.
The counsel for tenant has argued that under Rule-8 of the Rent Control Act gazetted officer should have submitted the report about vancancy of the disputed land and the vacancy should have been notified Under Rule-9 and in the absence of which the proceedings are vitiated. It has also been mentioned that there is tin shed 20' x 35' on the spot. This tin shed is alleged to have been installed by the tenant.
In my opinion the disputed premises minus this tin shed is vacant land in the facts and circumstances of the case. Therefore, the revisionist-O.P. Shall be evicted from the entire disputed property minus tin shed.
The revision is accordingly disposed of.
ORDER
The revision is partly allowed and partly dismissed. The revisionist shall be evicted from the entire disputed property minus tin shed 20' x 35'. Parties shall bear their own costs.AUGUST 30, 2010 (S.K.SRIVASTAVA) Dated: GORAKHPUR: Sd/- DISTRICT JUDGE:"
After hearing the counsel for the parties, perusal of record and the citations, it appears that the writ petition has been filed primarily on the ground that the inspection of the property in dispute was conducted by a Rent Control Inspector, and not a Gazetted Officer as required under Rule 8 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Rules, 1972, hence the whole proceedings are vitiated. This ground of challenge is wholly untenable and devoid of merits for the following reasons:-
i.No such objection regarding the inspection conducted by the R.C.I. not once but twice- was taken by the tenant/petitioner, before the R.C.& E.O. It is for the first time that the said objection is being raised in writ petition at the time of argument and the same is an after-thought. It may be noted that the tenant/petitioner had filed his detailed objection dated 13.11.2009 to the report of the Rent Control Inspector dated 26.12.2008 but no objection was raised by him to the aforesaid report that the inspection had not been conducted by a Gazetted Officer. In other words, the tenant/petitioner had acquiesced to the report filed by the R.C.I. and it is not open to him not to agitate an issue for the very first time in the writ petition which in fact had not been contended before the courts below, the validly and correctness of whose judgments is impugned in the writ petition which plea is also not supported by the memo of revision.
The tenant/petitioner has also miserably failed to even plead, much less demonstrate, that any prejudice was caused to him by the fact that the inspection in question had been conducted by a R.C.I and not a Gazetted Officer. In fact, it deserves to be noted that the tenant/petitioner is actually relying upon the first inspection report dated 5.8.2008, which too was filed, not by any Gazetted Officer but by the same R.C.I. who had filed the inspection report dated 26.12.2008 after subsequent inspection. Thus, the objection raised by the petitioner to the effect that the second inspection report was bad in law since the same was not filed by a Gazetted Officer is patently opportunistic and untenable. The petitioner cannot approbate and reprobate at the same time.
It is well settled law that the question of inspection, as required under Rule 8, is of no consequence when it is established by facts that the parties to the dispute had been afforded full opportunity to prove their case regarding the existence of vacancy, or otherwise, by means of evidence before the Rent Control & Eviction Officer. In the present case, the tenant/petitioner was allowed full opportunity, not only to file his objections to the inspection report, but also to adduce all evidence to prove that there was no vacancy, and the Courts below have passed the order of release not just on the basis of the inspection report/s but upon a full and proper consideration of all the material and evidence brought on record by the parties. As such, the fact that the inspection was carried out by a Rent Control Inspector, and not a Gazetted Officer, as required under Rule 8 of the aforesaid Rules can, at the most, be called an irregularity and not an illegality vitiating the entire proceedings.
I am supported in my view by the following decisions:-
(a) 1990(1) ARC 497, Lachhman Prasad Richaria vs. IV Additional District Judge, Hamirpur.
(b) 1994(1)ARC 532 M/s R.C.Bajpai and Co. vs. VII Additional District Judge, Kanpur Nagar and others.
(c) 1994(2) ARC 494 Ganpat Roy (deceased)through his heirs and legal representatives and others vs. Additional District Magistrate (Civil Suppliers)/(Rent Control & Eviction Officer), Allahabad and others.
The aforesaid cases are related to the proceedings under Rule 8 of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, prior to its amendment in the year 2001 by which the word "gazetted officer" has been incorporated who is supposed to make inspection of the premises under the said Rule after the amendment of 2001, yet basically neither the procedure in the Rule nor the object and intention behind the inspection under Rule 8 has changed. The object intention and purpose of the Rule has been clarified in the aforesaid cases laying down notice of inspection to be sent to the parties and if such notice is not sent, it will not vitiate the proceedings, provided that party who was not present at the time of inspection, was heard thereafter by the RC & EO in proceedings for declaration of vacancy and allotment, for in that case no prejudice would be caused to him. The Court in the aforesaid case has enunciated the object thus:
"It is next urged that no vacancy was declared nor the same notified as required by the Rules. It was urged that the procedure laid down in Rule 8 was not followed in the instant case. These arguments, however, lost much of their force once it is realised that before the application for release was allowed, the petitioner was given full opportunity of being heard and presenting his case before the concerned authority. The real object of Rule 8 is to ensure that the proceedings are not taken behind back the either the landlord or the tenant or other occupants and its underlying object is that proper opportunity of being heard should be given to these persons so that an adverse order is not obtained behind their back. This object can be achieved not only by proper intimation to them of the initiation of proceedings with regard to the property in question but also by allowing them to join the issue at a later stage but before any final order is passed. Even if the procedure as laid down is not strictly followed and there is no consequent injury or prejudice caused to the affected party, then a mere irregularity in following the procedure laid down will not vitiate the order as held in the case Rajendra Singh v. District Judge, Kanpur, 1987 (1) ARC 116. Non-compliance of Rule 8 will be of no consequence if the tenant had participated in proceedings for allotment and had an opportunity to file objections. Similarly in Geep Industrial Syndicate Ltd. v. Rent Control and Eviction Officer, Allahabad (supra), a Division Bench of this Court had occasion to deal with this aspect of the matter and it was held that since the petitioner had full opportunity to prove his case that there was no vacancy, the order can be said to be invalid on the ground that the order declaring vacancy was founded on an ex parte report. The ratio of decision in the above cases is clearly applicable to the present case. There is nothing to indicate that the petitioner has in any way been prejudiced in the proceedings or that the order was passed behind his back. This point also, therefore, has no merit and must fail."
Similarly in the case of M/s R.C.Bajpai & Co.(supra) the Court in paragraph 18 of the said judgment has observed that where principles of natural justice have been observed i.e. the building has been inspected in the presence of the parties it would not make any difference and the writ would be a futile exercise for declaration of such procedure as nullity.
"In the circumstances indicated above, the question about failure to observe the principle of natural justice or non-compliance of Rule 8 of the Rules framed under the U.P. Act No. 13 of 1972 is not of much consequence. In this connection it should not be lost sight of that in matters where observance of the principles of natural justice would have made no difference and the admitted or indisputable or irrefutable facts speaking for themselves lead to a situation where only one conclusion is possible under law, the Court may not issue its writ to compel the observance of natural justice as Courts do not issue futile writs."
Lastly in the case of Ganpat Roy (supra) it has been laid down that the proceedings under Rule 8 for declaration of vacancy and allotment by the RC & EO are based upon observance of principle of natural justice. Where the occupant was given full opportunity for putting his case, the order declaring the vacancy would not become illegal and defects, if any, in following the procedure prescribed under Rule 8 of 1972 Rules would be deemed to have been followed as cited above and that the party has been heard by the RC & EO.
Para 25 of the judgment in the case of Ganpat Ray lays down the law, thus:
"A similar question had come up before this Court in the case of Geep Industrial Syndicate Limited vs. The Rent Control & Eviction Officer and others, reported in 1982 (U.P.) RCC 592:1982 (1)ARC 585(DB), wherein a Division Bench of this Court observed that the Rules of natural justice must not be stretched too far and if full opportunity had been afforded to an occupant to file objections before allotment, the defect, if any, in following the procedure prescribed under Rule 8 of the Rules framed under the Act will be deemed to have been cured. It was observed by the Division Bench that in case the occupant had full opportunity to put his case that there was no vacancy, the order in question passed in the proceedings could not be held to be invalid on the ground of want of notice. In the order of remand in the present case the Apex Court has observed that the District Magistrate could not be justified in immediately directing the vacancy to be notified in violation of the statutory requirements of Rule 8 depriving the occupant of any opportunity of hearing contemplated under Rule 8 (3). The petitioner cannot derive any advantage out of this observation as they had been in fact afforded full opportunity of hearing, in support of their case about the non-existence of the vacancy before the passing of the order dated 18.11.81 wherein the competent authority had declared the premises in dispute to be vacant. In the circumstances of the present case, I am not at all impressed with the submission of the leaned Counsel for the petitioner in this regard which is liable to be rejected."
Admittedly in this case inspection was carried out by the R.C.I. on two occasions when at the time of inspection the tenant was not only present but had also participated in the proceedings before the RC & EO. He had filed objections to the second inspection which have been considered by the RC & EO. Thus, even if the inspection had not been carried out by a Gazetted Officer but an Inspector appointed under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 it would not prejudice the case of the tenant as there is no bar for any of the parties to plead and prove the prejudice before the RC & EO. In the instant case the tenant has not taken any ground in his objection that his case is prejudiced as the shop was not inspected by a 'Gazetted Officer' as contemplated in Rule 8 of the Rules framed under the Act. Hence in my view merely because the inspection was not made by the Gazetted Officer but an officer under the aforesaid Act, 1972 would not effect the conclusion of this case as not only the tenant was present during the inspection and principle of natural justice followed but also because of the fact that he had not pleaded any prejudice before the RC & EO. It may also be noted that the plea that the premises was not inspected by a Gazetted Officer has been taken for the first time in the writ petition can not also for this reason be taken into consideration as the tenant-petitioner had not taken this plea in the court below.
The RC & EO has recorded a clear finding of fact, based upon material evidence on record before him, that the tenant/petitioner had shifted his business and material effects from the premises in dispute to his own shop/residence situated at a distance of about 200 meters from the property in dispute, therefore, the court below have rightly come to the conclusion that the said property had fallen vacant. This finding of fact is based upon concrete evidence and cannot, by any stretch of imagination, be called perverse.
The Trial Court has also found that the landlord/respondent was in genuine and bonafide need of the premises in dispute for setting up his own pathology clinic and residence since he was presently operating from a rented premises which he had been called upon to vacate. The tenant/petitioner has not been able to produce any material before the courts below, or even in the Writ Court, to rebut or refute the bonafide need of the tenant/landlord, whereas the landlord/respondent appears to have proved and was able to demonstrate before the court below that the tenant/petitioner had built his own residence/shops from where he was running his furniture business. Thus, there is no infirmity in the orders passed by the courts below directing the property in question to be released in favour of the landlord/respondent.
Another ground taken by the tenant/petitioner in the writ petition that Section 16(1)(b) of U.P. Act No.13 of 1972 does not contemplate release of a part of the premises, nor a part of the premises could be contemplated to be vacant is also erroneous and fallacious, in view of the express language of Section 16(1)(b) of the aforesaid Act which is quoted hereinafter for ready reference:-
"Allotment and release of vacant building-(1) Subject to the provisions of the Act, the District Magistrate by order--
(a)...............................................................................
(b) release the whole or any part of such building, or any land appurtenant thereto in favour of the landlord (to be called a release order).
[Provided that in the case of the vacancy referred to in sub Section(4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a)]"
Thus, from a perusal of provisions of Section 16 of Act No.XIII of 1972 it is apparent that it is legally permissible for even a part of any premises to be released, contrary to what has been urged by the petitioner.
The contention of the petitioner/tenant that the finding of the Trial Court in respect of the shifting of his business to his own shops is based on no evidence, or that the alleged seven shops and residence did not belong to him is also incorrect and against the evidence on record. The Trial Court has clearly observed in its order dated 23.8.2010 that the petitioner/tenant had failed to produce any documentary evidence to substantiate his contention that he was not the owner of the said shop/residential house and/or they actually belonged to his relatives. If such was the case documentary evidence of ownership of his relatives could have been filed from Nagar Palika or got summoned by him under Section 34 of the Act. As against this, the respondent/landlord had produced tax receipts in respect of the aforesaid shops/house issued in the name of the petitioner tenant from which it is conclusively proved that tenant-petitioner was owner of the seven shop where he had shifted his business and all material effects.
Further submission of the counsel for the petitioner at the time of the arguments before this Court, conveying an impression that the second report of the Rent Control Inspector had come into existence without any context or occasion, appears to be a feeble attempt to misled the Court. The averments in this regard are contrary to the records which clearly shows that, after the submission of the first inspection report dated 5.8.2008, the respondent/landlord had filed his objection to the same on 12.11.2008 whereupon his application/objection was considered by the RC & EO directing the R.C.I. to file a detailed and clear report. This was done vide order dated 14.11.2008 passed by the RC & EO. It was in compliance of the said order dated 14.11.2008, that the Rent Control Inspector had inspected the premises again and filed his report dated 26.12.2008 and had not inspected it on his own.
The tenant/petitioner had also filed his detailed objections on 13.11.2009 to the inspection report dated 26.12.2008 but the said objection appear to have deliberately not been filed with the writ petition since it did not contain any objection as to the inspection not having been conducted by a Gazetted Officer, which ground has been made the very fulcrum and foundation of the tenant/writ petition suppressing and concealing material facts.
It, is evident from the submissions of the parties that the impugned order of release dated 23.8.2010 was passed on a proper consideration of the case and do not warrant any interference in exercise of extra ordinary powers conferred under Article 226 of the Constitution of India. In my considered opinion, the Revisional Court did not commit any error of law in dismissing the revision of the tenant/petitioner to the extent indicated in the revisional order. If anything, the Revisional Court fell into error in allowing the revision of the tenant/petitioner to the extent it related to the tin-shed admeasuring 20 feet x 30 feet and the landlord/respondent reserves his right to challenge the revisional order to that extent.
Following the ratio laid down in case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, AIR 2005 SC-3353, wherein it has been held that:
"So far as awarding of costs at the time of judgement is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs taking into account the expenses incurred for the purpose of attendance on the adjourned dates."
In view of the above, and considering the facts and circumstances of the case cost is assessed to Rs.30,000/- payable by the petitioner to the landlord.
The writ petition is accordingly dismissed with cost of Rs.30,000/- (Rupees thirty thousand) which shall be paid to the respondent within a period of one month. Failing payment of the cost the petitioner shall also be liable for its recovery @ 9% compound interest with half yearly rest till the date of payment for which proceedings should be initiated by the authorities for recovery as arrears of land revenue.
Order Date :- 29.4.2011 AKJ