HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 48880 of 2000 Petitioner :- Shiv Shankar Gupta Respondent :- Rent Control And Eviction Officer/D.M. Kanpur Nagar Petitioner Counsel :- Rama Nand Gupta Respondent Counsel :- C.S.C., Ajeet Kumar Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ashok Bhatnagar, Advocate, holding brief of Sri Rama Nand Gupta, Advocate, for petitioner and Sri Mohit Saxena, holding brief of Sri Ajeet Kumar, Advocate, and learned Standing Counsel for respondents.
2. This writ petition is directed against the order dated 11.10.2000 passed by Rent Control and Eviction Officer/District Magistrate, Kanpur Nagar (hereinafter referred to as "RCEO") for taking eviction proceedings by issuing Form-D for compliance of Court's order dated 26.5.1993, rejecting petitioner's claim that the accommodation in question was already allotted to him on 2.6.1998.
3. The dispute relates to residential accommodation bearing Municipal No. 52/12, Shakkarpatti, P.S. Collectorganj, Kanpur Nagar which is owned by the respondent-landlord namely, M/s Kanpur Sugar Merchants Association i.e. respondent no. 2. The accommodation was earlier in the tenancy of one, Ram Kumar Agrawal, who was allotted the same vide allotment order dated 18.12.1971 under the provisions of Act No. 3 of 1947.
4. The facts from the pleadings show that the aforesaid accommodation was sought to be released under Section 16 (1) (b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") on an application filed by respondent no. 2-landlord i.e. Rent Case No. 163 of 1993. It was pointed out that the erstwhile tenant Ram Kumar Agrawal has already got a residential house constructed at Plot No. 1051, Pokharpur, Lal Bungalow, Kanpur and has shifted his belongings thereat, hence there is a deemed vacancy. The landlord needs the accommodation in question for his personal need, therefore, it should be released in his favour.
5. The accommodation in question was declared vacant by RCEO's order dated 21.5.1993 and by subsequent order dated 26.5.1993, the RCEO after recording a finding on the admission of the erstwhile tenant that he has got his own house constructed at Plot no. 1051, Pokharpur, Lal Bungalow, Kanpur and finding justification in respondent no. 2's request for release of accommodation in question in his favour for personal need, allowed application and released accommodation in question, in his favour, on the ground that it shall not let out the premises in future and would use the same for the purpose of its Association.
6. However, erstwhile tenant did not vacate the disputed accommodation whereupon an application under Section 16 (4) was filed by respondent no. 2 before RCEO for delivery of possession of accommodation by issuing Form-D. While the above proceedings were pending, it appears that petitioner filed an application for allotment of the aforesaid accommodation to him on the ground that it is likely to be vacated by erstwhile tenant. Photocopy of the application has been filed as Annexure 1 to the writ petition. It appears to have been received in the Office of District Magistrate on 4.5.1998. It makes no reference of release order dated 26.5.1993 in the proceedings earlier initiated under Section 16 (1) (b) of Act, 1972.
7. It appears that the erstwhile tenant Ram Kumar Agrawal also supported the said application by giving his "no-objection" for allotment of the accommodation in question in favour of any other person stating that he is likely to vacate the premises in near future. The outgoing tenant also did not make any reference to the earlier release order passed in favour of the landlord and instead refers to his allotment order of the year 1971 only to show that he was a valid allottee of the accommodation in question.
8. The impugned order shows that the Rent Inspector made inspection of the accommodation in question on 12.4.1998 and reported that the accommodation was locked though on enquiry he came to know that it was in the tenancy of Ram Kumar Agrawal and appears to lying vacant.
9. Sri Vivek Pandey, the then RCEO., Kanpur Nagar states to have issued notice to the landlord, served by pasting on 16.5.1998, and actually in absence of landlord, passed an order on 18.5.1998 declaring vacancy and directing to proceed for allotment by public notice to be pasted on notice board fixing 2.6.1998. Consequently on 2.6.1998 the same official allotted the accommodation in question in favour of petitioner.
10. It is said that on the same date, the erstwhile tenant Ram Kumar Agrawal handed over possession of the accommodation in question to petitioner who tendered rent to respondent no. 2 by money order after more than six months i.e. on 21.12.1998. Respondent no. 2 having come to know of these proceedings, moved application under Section 16 (4) of Act, 1972 i.e. Rent Case No. 18 of 1999 for issuance of Form-D and handing over vacant possession of the accommodation in question pursuant to release order dated 26.5.1993.
11. Pursuant thereto, an order was passed by District Magistrate, Kanpur on 5.8.1999 directing erstwhile tenant Ram Kumar Agarwal to hand over vacant possession of the accommodation in question to respondent no. 2 whereupon the petitioner put in appearance, filed application dated 7.6.2000 stating that the accommodation in question has been allotted to him and he has taken possession thereof on 2.6.1998 pursuant to allotment order dated 2.6.1998. The landlord, thereafter, filed revision against the order dated 2.6.1998 besides contending before the RCEO that the release order already passed in his favour cannot be made non-est by any subsequent order of allotment, that too ex parte, which is a nullity in the eyes of law, therefore, the release order should be given effect to by ensuring vacant possession of the accommodation in question to the landlord. It is in these circumstances, the impugned order dated 11.10.2000 has been passed by RCEO.
12. Learned counsel for petitioner contended that once the respondent no. 2 has filed a revision against the allotment order dated 2.6.1998, it was not open to RCEO to pass the impugned order ignoring allotment order dated 2.6.1998 passed in favour of petitioner. He contended that petitioner is in possession of accommodation in question and the allotment order dated 2.6.1998 has neither been stayed nor set aside nor is otherwise inoperative and having already been executed, since he has got possession of the accommodation in question, the impugned order could not have been passed by RCEO.
13. Respondent no. 2 has filed counter affidavit stating that after his Release Application was allowed by RCEO on 26.5.1993, an application under Section 16 (4) of Act, 1972 was moved for obtaining vacant possession of the accommodation in question since the erstwhile tenant Ram Kumar Agarwal was not handing over its possession and the said application remained pending. It is during pendency of this application, in a surreptitious and clandestine manner, petitioner in collusion with others, got the accommodation allotted on 2.6.1998, that too, in an ex parte manner, and, therefore, such allotment order is wholly illegal and nullity in the eyes of law. It is wholly without jurisdiction inasmuch once the accommodation has already been released to landlord, unless such release order becomes inoperative, the accommodation already released could not have been subject matter of allotment and, therefore, the allotment order dated 2.6.1998 is a patent nullity in the eyes of law. He also contended that petitioner could not have obtained possession from outgoing tenant who already ceased to occupy the premises in view of deemed vacancy under Section 16 (1) (b) of Act, 1972. The entire proceedings of allotment etc. are fraudulent, collusive and have no legal effect in the eyes of law. He pointed out that during the pendency of earlier application dated 30.6.1993 for issuance of Form-D for delivery of vacant possession, another application was filed by respondent no. 2 for the same purpose in 1999 and it is only thereafter RCEO passed the impugned order.
14. Sri Ashok Bhatnagar, learned counsel appearing for petitioner could not dispute that the accommodation in question was duly released in favour of respondent no. 2 by the competent authority on 26.5.1993. He also did not dispute that erstwhile tenant Ram Kumar Agarwal had not handed over possession of the accommodation in question to respondent no. 2 despite release of the said accommodation by order dated 26.5.1993 whereupon respondent no. 2 had filed an application for issuance of From-D for delivery of vacant possession under Section 16 (4) of Act, 1972 on which no order appears to have been passed by concerned competent authority and the same remained pending. He, however, submitted that be that as it may, once an allotment order has been passed in his favour, he is entitled to enjoy benefit thereunder and the earlier proceedings would be inconsequential and would render inoperative.
15. The submission, in my view, is thoroughly misconceived in the peculiar facts and circumstances of this case which clearly demonstrate and prove lack of bona fide in the entire proceedings of allotment in favour of petitioner and show an apparent collusion between respondent no. 1, the petitioner and erstwhile tenant.
16. The photocopy of the application filed as Annexure 1 to writ petition shows that there is no date mentioned in the application. The column of date is blank. However, on its top i.e. first page of the three page application, a number 18 is mentioned and below it a date 4.5.1998, is mentioned. Sri Bhatnagar states that this is the date of application on which it was filed in the office of RCEO. I proceed to consider the said date to be correct as stated by him.
17. Now second document is the letter submitted by outgoing tenant Ram Kumar Agarwal, copy whereof has been filed as Annexure-2 to writ petition. This also shows absence of date thereon. It is not clear as to when the said statement was given by Sri Ram Kumar Agarwal. It is said that the statement was given on the application of allotment given by petitioner when notice was issued to Ram Kumar Agarwal and he put in appearance before RCEO. Therefore the date of the aforesaid statement must be somewhere after the inspection made by Rent Control Inspector and the vacancy declared by RCEO i.e. 18.5.1998. For the present purpose, I take this fact to be correct and proceed accordingly.
18. Now I come to next aspect. Annexure 3 to the writ petition shows that the Inspector submitted his report on 12.4.1998 though the application itself is said to have been given on 4.5.1998. The question of submission of a report by the Inspector pursuant to an application received subsequently cannot arise. Counsel for petitioner stated that there may be some typing mistake and the date of inspection should be 12.5.1998 and not 12.4.1998. My attention is drawn to para 4 of writ petition in which report is mentioned as dated 12.5.1998 though in the order dated 18.5.1998 this date is mentioned as 12.4.1998. Again I proceed to consider something in favour of petitioner and treat it as typing mistake meaning thereby on the application given by petitioner on 4.5.1998 the Rent Inspector made enquiry and submitted enquiry report on 12.5.1998.
19. When the said report came up for consideration before respondent no. 1 and when he passed order for its publication is not known. It only mentions that the notices were issued to the parties, inasmuch, the outgoing tenant Ram Kumar was served personally, and the owner i.e. respondent no. 2 was allegedly issued notice which is said to have been served by pasting, as per the report submitted by Process Server on 16.5.1998. Now when this was actually even pasted for service is not known. Whether it gives three days notice to the landlord is also difficult to ascertain. The report was submitted by Process Server on 16.5.1998 and vacancy was declared by RCEO on 18.5.1998 relying only on the statement of erstwhile tenant Ram Kumar Agarwal that he would be vacating the accommodation in a short while.
20. It is surprising to see that though the Office of RCEO is supposed to keep complete record of accommodations which are available for allotment, likely to be vacated or have already been released, as is evident from Rule 2-A (3) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as "1972 Rules") but in the present case neither such record was kept updated nor the earlier release proceedings were ever referred to. It may be that collusively and deliberately the respondent-authority ignored the earlier proceedings so as to confer an undue and illegal benefit upon the petitioner. The collusive involvement of the Rent Control Authority, namely, respondent no. 1, and Rent Inspector cannot be ruled out. In fact, the manner in which things have proceeded, this Court would be justified to infer that the extraordinary haste, omission to consider earlier proceedings, though the record must have been available in the Office of RCEO in that regard, shows that entire allotment proceedings were fraudulent and collusive.
21. Besides, it also cannot be disputed that a release order already passed cannot be made inoperative or non-est by treating a released property again as subject matter of allotment since the RCEO did not possess any such jurisdiction once the order of release has been passed and has also attained finality in the eyes of law. There is no occasion to revert a released property to become available for allotment.
22. It is not a fit case warranting interference and, on the contrary, looking to the collusive proceedings which have forced this litigation upon respondent no. 2, in my view, it is a fit case where respondent no. 2 is entitled for an exemplary cost.
23. In the result, the writ petition is dismissed with cost which I quantify to Rs. 1,00,000/- (Rupees on lac) which shall be shared equally by petitioner and respondent no. 1. Both shall pay it to respondent no. 2 within two months from today failing which on an application moved by respondent no. 2 before Registrar General, he shall issue a certificate whereupon the District Magistrate shall recover the said amount as arrears of land revenue from petitioner and respondent no. 1 and pay to respondent no. 2.
24. It is, however, made clear that amount of cost paid by respondent no. 1 from State Exchequer may be recovered from the Officer(s) concerned who has/have caused the illegal allotment proceedings resulting in the order dated 2.6.1998 in respect to an accommodation already released to the landlord under Section 16 (1) (b) of the Act, 1972, after making such enquiry as required/permissible in law.
Dt. 18.10.2012 PS