Haji Mohammad Rashid vs Xii-A.D.J. Agra And Others
2012 Latest Caselaw 3773 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 

 
Case :- WRIT - A No. - 37680 of 1997
 

 
Petitioner :- Haji Mohammad Rashid (Deceased) & Ors.
 
Respondent :- Xii-A.D.J. Agra And Others
 
Petitioner Counsel :- B.D. Mandhyan, Satish Mandhyan
 
Respondent Counsel :- C.S.C,M.K.Gupta,R.Asthna
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Om Prakash, Advocate holding brief of Sri B.D. Mandhayn, learned counsel for the petitioner, Sri Pankaj Agarwal, Advocate holding brief of Sri M.K.Gupta, learned counsel for the respondent No.3 and learned Standing Counsel for the State respondents.

2. The petitioner has assailed the order dated 17.10.1997 passed by XIIth Additional District Judge, Agra setting aside order of Rent Control and Eviction Officer, Agra (hereinafter referred to as "RCEO") dated 06.07.1994 allotting the accommodation in question to the petitioner.

3. The dispute relates to shop No.16/1/90 (old no.16/1) situated in Subhash Bazar, Agra. It is not disputed that the aforesaid shop is owned by Sri Narain Das Kagaz Wale Dharmarath Trust (respondent No.7), managed by Dr. Harish Chandra Jain.

4. The petitioner Haji Mohammad Rashid (since deceased and substituted by his legal heirs/representatives i.e. petitioner No.1/1 to 1/10) made an application on 2nd June, 1994 requesting for allotment of shop in question alleging that it was under the tenancy of Sukesh Kumar and Sushil Dixit, sons of late Sri Salig Ram Sharma, and they are going to vacate the premises and it may be allotted to the petitioner. An inspection was made on 13th June, 1994 whereafter the alleged tenants namely Sukesh Kumar and Sushil Dixit filed an affidavit on 1st July, 1994 stating that they are going to vacate the premises very shortly. Another affidavit was filed by Dr. Harish Chandra Jain, Manager of landlord trust giving his consent for allotment of shop in question in favour of petitioner. Thereafter RCEO passed order dated 6th July, 1994 allotting the shop in dispute to the petitioner.

5. Respondents No.3 to 6, sons of Sri Hari Shankar Sharma, filed RCC Revision No.2 of 1996 and it is this revision which has been allowed by XIIth District Judge, Agra holding that neither procedure prescribed in Rule 8(2) nor 9(3) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as "Rules, 1972") has been followed. The conduct of Rent Control Inspector (hereinafter referred to as "RCI") is highly suspicious and the parties namely prospective allottee and the alleged owners have also not acted honestly which all justify an inference of collusion between the applicant, allottee and Rent Control Authorities namely the RCI. It is thus evident that allotment order is nothing but a result of fraud and misrepresentation. Accordingly, he had set aside allotment order dated 6.7.1994 and directed RCEO to hear Revisionists and other concerned parties and thereafter decide applicant-allottee's application again.

6. It is contended before this Court that since charitable and public religious institutions are exempted from operation of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") in view of Section 2(1)(bb) of Act, 1972, therefore the impugned revisional order is patently illegal and without jurisdiction. It is also contended that rent of shop is more than Rs.2000/- and therefore under Section 2(g) of Act, 1972, the provisions of Act, 1972 are not applicable to the shop in question. Further it is contended that all the concerned parties are/were duly informed and notices were issued. There was no contravention of any provision and the Revisional Court has illegally held that Rules 8 and 9 of Rules, 1972 were not complied. Lastly, learned counsel for the petitioner also contended that respondents no.3 to 6 had no locus standi or authority to file revision and therefore, also it was bad in law and liable to be dismissed.

7. On the contrary Sri Pankaj Agarwal, holding brief of Sri M. K.Gupta, Advocate contended that in a collusive and illegal manner petitioner obtained allotment order and the same has rightly been set aside by Revisonal Court.

8. From the pleadings and documents available on record certain events which are evident and would be relevant for deciding this matter, may be stated first.

9. Admittedly, petitioner moved an application on 2nd June, 1994 claiming that respondents no.8 and 9 are the sitting tenants and were going to vacate the shop in dispute on 4th June, 1994. The respondent no.7 admitting the information of vacancy, submitted a letter tendering his consent for allotment of shop in question in favour of petitioner- applicant but along with the said letter neither any Vakalatnama was filed before RCEO nor signatures of Dr.Harish Chandra Jain were verified by anyone. The RCEO on 4th June, 1994 itself passed an order for notifying vacancy on the notice board, pursuant whereto vacancy was notified on the notice board in the office of RCEO on 6th June, 1994. The RCI thereafter submitted report on 13.6.1994 after alleged inspection of the shop in question.

10. On 14th June, 1994 a joint affidavit was prepared alleged to be sworn by Sri Sukesh Kumar and Sushil Dixit. The affidavit was sworn before the Oath Commissioner, and, as said by Revisional Court, the deponents of the affidavit dated 14.6.1994 were identified by the Clerk of Sri Hot Chandra, Advocate.

11. On 18th June, 1994, under the orders of RCEO, brief of inspection report dated 13.6.1994 was pasted on the notice board of RCEO and the date of hearing mentioned therein was shown as 18th June, 1994 itself. The Advocates were on strike on the said date and hence next date for hearing was fixed as 1st July, 1994. Further notices were issued on 18.6.1994 to Sri Sushil Dixit, Sukesh Kumar and Harish Chandra informing them about 1.7.1994 as the date fixed for hearing. A joint affidavit dated 14.6.1994 of respondents No. 8 and 9 i.e. Sri Sukesh Kumar and Sushil Dixit was submitted before RCEO on 1.7.1994. On the same date, photocopies of payment of house tax in Agra Nagar Mahapalika, water tax in Jal Sansthan were produced and minutes of meeting of Narayan Das Kagajwale Dharmarth Trust dated 17.3.1994 were also produced.

12. On the basis of above, RCEO passed order on 6.7.1994 allotting the premises in question to the petitioner Haji Mohd. Rashid (since deceased). In the allotment order neither any presumptive rent or standard rent payable by allottee was mentioned nor any direction was issued in respect to rent. The allotment order was communicated to respondent no.7 by preparing a letter of allotment on 13.7.1994 which was received by the clerk of Sri Hot Chandra, Advocate from the office of RCEO on 14.7.1994.

13. The respondents no.3 to 6 have stated that they had no knowledge about all these proceedings and it is only in September, 1994 they came to know that the shop has been allotted to the petitioner whereafter they met him and got the entire information. After inspecting the record in the office of RCEO, on 9.9.1994, a review/recall application was filed before RCEO and thereafter almost simultaneously the revision was filed under Section 18 of the Act, 1972 on 12.9.1994.

14. During pendency of revision, Act, 1972 was amended whereby property, vested or possessed by a public religious or charitable institution was exempted from application of Act, 1972 and also those properties where monthly rent is Rs.2,000/- were taken outside the purview of the Act, 1972.

15. The submission of petitioner that shop in question is owned by a trust and in view of Section 2(1)(bb), Act, 1972 is not applicable and therefore revision was liable to be dismissed, is thoroughly misconceived, inasmuch as, the aforesaid amendment came into force w.e.f. 26.9.1994 by U.P. Act No.5 of 1995. The proceedings, which were pending prior thereto remained unaffected thereby. This issue, I find stand already settled by Apex Court as well as by a larger Bench i.e. Division Bench of this Court. In Ambalal Sarabhai Enterprises Ltd. Vs. Amrit Lal & Company and Another, 2001(8) SCC 397 the Court has held that insertion of certain provision in the principal Act, taking away application of the Act, would not affect pending proceedings, if on the date when proceedings were initiated, the same were well within its jurisdiction.

16. The said principle has been followed by a Division Bench in Champa Devi (Smt.) and another Vs. Rent Control and Eviction officer (Ist), Allahabad and another, 2002(1) ARC 192 and in para 4 of the judgment, the reference made to the larger Bench was answered as under:

"Accordingly, the answer to the question referred would be that clause (g) to Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, inserted in the Act by Section 2 of U.P. Act No. 5 of 1995, will not affect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995."

17. The same view has also been taken by this Court in Writ Petition No.53119 of 2002 (Thakur Rang Ji Maharaj & Another Vs. Om Prakash Agarwal & Anr.) decided on 14.08.2012.

18. In view of the above authority of Apex Court and the Division Bench judgment as well as Single Judge of this Court, the submission that the Amendment Act of 1995 would result in abating the pending proceedings is clearly misconceived and is rejected.

19. So far as right of respondents No. 3 to 6 in respect to shop in question is concerned, the Court finds that the case set up by contesting respondents is that the shop was under tenancy of Sri Hari Shankar Sharma, father of respondents no.3 to 6, since February, 1950. Sri Hari Shankar Sharma was carrying on a partnership business along with Smt. Gulab Devi and Smt. Prema Devi. The firm's title was "M/s Prabhat Medical Store". The business had commenced in 1950. Smt. Gulab Devi separated herself from the partnership in January, 1962. Smt. Prema Devi, who had nothing to do with the tenancy of shop, however, misusing position of her husband Sri Salig Ram Sharma, a Deputy Superintendent of Police retired in 1969, forcibly dispossessed Sri Hari Shankar Sharma from the shop in question. In this regard a suit no.44 of 1971 was filed by Hari Shankar Sharma, in which an Arbitrator was appointed and the award given by Arbitrator was maintained by Apex Court also and its execution is pending in the Court of IInd Addl. District Judge, Agra.

20. Besides above, Suit No.306 of 1971 was filed by Sri Hari Shankar Sharma against his forcible dispossession from the shop in question impleading Salig Ram Sharma, Prema Devi and Smt. Gulab Devi which was decreed by Munsif, Agra on 26.9.1974; and, First Appeal No.228 of 1974 was dismissed on 14.1.1976 whereagainst a second appeal was filed by the aforesaid defendants before this Court wherein decree was modified, by this Court, observing that the shop will be considered to be under a joint tenancy of Sri Hari Shankar Sharma, Smt. Prema Devi and Gulab Devi and Sri Salig Ram would have no tenancy rights therein. The High Court's judgment became final after dismissal of Civil Appeal No.1319 of 1976 by the Apex Court.

21. Since Hari Shankar Sharma died in 18.11.1984, his heirs namely respondents no.3 to 6 succeeded tenancy rights in the shop in question. Smt. Gulab Devi also died in 1989-90. Only Smt. Prema Devi was alive when revision was decided by the Court below. However, concealing the fact about actual tenancy rights vested in the persons, as discussed above, the petitioner, in collusion with respondents no.7, 8 and 9, got the shop in question allotted in which Rent Control authorities also helped him, as is evident from the facts discussed above.

22. Learned counsel for petitioner could not explain, when Smt. Prema Devi was alive, in what manner and on what basis respondents no.8 and 9 could claim themselves to be the tenant in the shop in question and in what manner their affidavits or their stand was at all relevant with regard to allotment proceedings pertaining to shop in question. He also could not show, when respondents no.3 to 6 did not enjoy tenancy right in the shop in question, in what capacity they could be brought in by the petitioner to validate his letter of allotment.

23. In the above facts and circumstances, this Court has no hesitation in confirming the view taken by Revisonal Court, and held that entire allotment proceedings initiated by respondent no.2 were collusive with the respondents no.7 to 9. Even the Rent Control Authorities including respondent no.2 have shown an active support which is nothing but amounts to a malicious exercise of power. This is malice in law. The entire proceedings therefore, are vitiated in law on account of fraud and misrepresentation played by the above mentioned parties. It is well settled that fraud vitiates everything.

24. Learned Standing Counsel at this stage tried to point out that in Revisional Court's order, allegations of collusion and misrepresentation have been found proved against RCI only and not respondent no.2 but could not explain when Inspector submitted report on 13.6.1994 then how, vacancy could be notified on 6.6.1994 i.e. earlier to submission of report by RCI. He also could not explain that brief of Inspector's report in compliance of Rules 8 and 9 of Rules, 1972 was pasted on the notice board on 18.6.1994 wherein date of hearing was also shown as 18.6.1994 though admittedly the said date of hearing, could not have been informed by any notice to any of the parties. It also could not be explained by him that on one hand, the clerk of Sri Hot Chand, Advocate was identifying respondents no.8 and 9 and simultaneously he also represented respondents No. 7 to obtain/receive allotment letter dated 1.7.1992 from the office of RCEO.

25. The Court below has rightly found that entire proceedings are vitiated being result of total fraud and misrepresentation, keeping respondents no.3 to 6 in dark, to usurp their tenancy rights, in the shop in question. This Court however has further no hesitation in observing that in this mischievous act of the petitioner in collusion with respondents no.7 to 9, respondent no.2 has also shown supportive i.e. collusive role by acting in a patently illegal manner and therefore, his accountability and responsibility cannot be said to be less than that of other parties.

26. The respondents no.3 to 6, after death of their father succeeded tenancy rights in the shop in question but have been harassed altogether in a most illegal and arbitrary manner. This litigation has also been forced upon them on account of fraudulent act on the part of petitioner and respondents no.7 to 9 as well as respondent No.2 and his subordinate officials in the office of RCEO.

27. The writ petition, therefore, is dismissed with cost of Rs.50,000/- against the petitioner as also respondents no.2 and 7 to 9, which shall be shared 25% by the petitioner, 50% by respondent No.2 and 25% by respondents No.7 to 9. The respondent No.2 has been held more responsible for the reason that he was holding a public office. He was expected to discharge statutory duties under Act XIII of 1972 with integrity and honesty but he has failed to satisfy the above requirements and, therefore, in my view, his accountability is much more than other interested parties.

28. The writ petition accordingly is dismissed with cost, as said above. The judgment of Revisional Court is hereby affirmed. The cost so awarded shall be paid to the contesting respondents Nos.3, 4, 5 and 6.

Order Date :- 28.8.2012

KA

Case :- WRIT - A No. - 37680 of 1997

Petitioner :- Haji Mohammad Rashid

Respondent :- Xii-A.D.J. Agra And Others

Petitioner Counsel :- B.D. Mandhyan,Satish Mandhyan

Respondent Counsel :- C.S.C,M.K.Gupta,R.Asthna

Hon'ble Sudhir Agarwal,J.

Heard.

Allowed.

Let substitution be carried out during course of the day.

Order Date :- 28.8.2012

KA