Kailash Chandra Saxena vs Rent Control & Eviction Officer ...
2015 Latest Caselaw 3113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Case :- WRIT - A No. - 19709 of 2008
 

 
Petitioner :- Kailash Chandra Saxena
 
Respondent :- Rent Control & Eviction Officer And Others
 
Counsel for Petitioner :- Rajendra Babu Gaur,B.B. Gaur,M.D.Singh Shekhar,M.K.Gupta,M.N.Singh,Mahesh Narian Singh
 
Counsel for Respondent :- C.S.C.,Subodh Kumar
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Shri Atul Dayal, learned counsel for the petitioner and Shri Subodh Kumar for respondent no.3.

This case has a chequered history. This writ petition was heard on 6.1.2014. An objection was raised by the learned counsel for the respondent that the petitioner has not availed the statutory alternative remedy of revision and, therefore, the writ petition cannot be entertained. On this plea, the writ petition was dismissed by order dated 6.1.2014. The petitioner had filed Special Leave to Appeal(Civil) No. 11191 of 2014 before the Apex Court,which was disposed of on 21.4.2015 with the directions as follows:-

"Heard learned counsels for the parties and perused the relevant material.

The High Court has refused to entertain the writ petition filed by the petitioner on account of availability of alternative remedies.While it is correct that alternative/statutory remedies were available to the petitioner to challenge the orders which were impugned before the High Court in the peculiar facts and circumstances of the case details of which need not be recited, we are of the view that the High Court should be requested to dispose of the writ petition filed by the petitioner on merits. We order accordingly and request the High Court to dispose of CM Writ Petition No. 19709 of 2008 on merits at the earliest.

The special leave petition is disposed of in the above terms."

Though the Apex court has directed that the writ petition be decided on merit and the order of dismissal on the ground of alternative remedy was set aside, however,the learned counsel for the respondent vehemently challenged the maintainability of the writ petition on the ground that the statutory remedy of revision against the impugned order has not been availed by the petitioner. This argument of the learned counsel for the respondent is not acceptable in view of the direction of the Apex Court to decide the writ petition on merit, in the peculiar facts and circumstances of the case. Moreover the settled legal position is that in case a writ petition is entertained and an interim order has been passed or the writ petition is pending for a long time, it should not be dismissed on the ground of alternative remedy. The present writ petition can not be dismissed on the ground of alternative remedy  after approximately 13 to 14 years of the pendency. Reference be made to Delhi Prakashan Vitran(P) Ltd. Vs. Employees State Insurance Court, Ghaziabad and others reported in 2004(3)AWC 2351; Panchoo Ram Vs. State of U.P. and another, 2004(3) AWC 2358 and L.Hirday Narain Vs. Income-Tax Officer, Bareilly reported in AIR 1971 SC 33.

This writ petition has been filed by the landlord challenging the orders dated 25.5.1998, 29.6.1998 and the order dated 7.7.1998 passed by the Rent Control and Eviction Officer, Shahjanpur.

The landlord's case is that the premises in question namely House no. 281 situated in Mohalla Sadar Bazar, District Shahjanpur was never allotted or rented out to any one prior to 30.10.1990. There is no proof of any allotment order on record, when the petitioner was outside the town respondent no.3 Devendra Pal Singh had grabbed the house as he yields tremendous influence over the local authorities. As soon as the petitioner come to know this fact, he moved applications before the police authorities, however, nothing has been done. With a view to get his occupation legalised, the opposite party no.3 moved an application for allotment dated 26.7.1990. In the said application, he mentioned his residential address of the disputed house.

The Rent Control and Eviction Officer directed the Rent Control Inspector to submit a report. The report dated 30.7.1990 of the Rent Control Inspector states that there occurred vacancy in the house in question as the then sitting tenant Dharmendra Kumar Dixit had purchased his own house and had shifted therein. The report further reveled that Hari Pal son of Babu Ram met with the Rent Control Inspector and stated that he had occupied the house for about two months as a tenant and had been inducted by the landlord. Hari Pal further averred that he was working in the Cooperative Department at Shahjahanpur.

The petitioner filed objection to the allotment application dated 9.10.1990. It was categorically stated therein that during his visits to Shahjahanpur for professional purpose he stays in the house in question. It was further stated that he never gave the house on rent to Dharmendra Kumar Dixit as alleged in the report. With respect to HariPal, it was stated that the house was illegally occupied by Devendra Pal Singh after breaking the lock in July 1980, and possession was handed over to Haripal, it was never given on rent to him. Three persons namely,Devendra Pal Singh, Dharmendra Kumar Dixit and Haripal had conspired to illegally grab the house. They had indulged in such illegal activities of grabbing the locked houses, in the District.

Respondent no.3 Devendra Pal Singh had filed his affidavit in reply and the affidavits of Dharmendra Dixit and one Akshay Vikram Singh in support of his assertion. They had pleaded that earlier Dharmendra Kumar Dixit was the tenant @ Rs. 50 per month. After this house was vacated by him, Hari Pal started living with the permission of the landlord.

By order dated 30.10.1990, the report of the Rent Control Inspector dated 30.7.1990 was accepted and the house in question was allotted to Devendra Pal Singh rejecting the objections of the landlord. The landlord was directed to handover the vacant possession of the house to the allottee.

This order was challenged in revision on the ground that a composite order of declaration of vacancy and allotment relying upon the affidavits of the allottee, Dharmendra Kumar Dixit and Akshay Vikram Singh cannot be sustained. The Rent Control and Eviction Officer had assumed vacancy, no opportunity has been given to the landlord to rebut these affidavits. So far as the allotment is concerned, the contention of the landlord was that the allotment application has not been examined on merits and the order was passed with a predetermined mind. The applicant Devendra Pal Singh being unauthorised occupant of the house had no right to maintain the allotment application, the application was liable to be rejected on this ground alone. It is admitted case of the allottee Devendra Pal Singh that he had occupied the house before the declaration of vacancy. The case of the applicant in the allotment application was that he had been permitted to look after house by the landlord and as such he had carried out whitewash and repairs but thereafter the landlord had demanded high rent, and therefore, a dispute arose and he was forced to file the allotment application. The contention of the petitioner was that the nature of the occupation of Devendra Pal Singh was not given due consideration before passing the allotment order. The revision was allowed on 25.7.1992 and the order of vacancy and allotment was set aside. The matter was remanded back to decide afresh on the question of vacancy as also allotment to the court below.

It appears that with an ulterior motive a restoration application no. 12 of 1992 was filed by Devendra Pal Singh on the ground that the order in revision was exparte and the notice was not served upon him. This application was examined and it was found that the service of notice upon the applicant was sufficient and hence the restoration application was dismissed by order dated 31.8.1994.It was further found that the applicant was adopting delaying tactics and hence he was directed to appear before the court below on 7.10.1994. Challenging the orders dated 25.7.1992 and 31.8.1994, a Writ Petition No. 35722 of 1994 was filed by Devendra Pal Singh, which was dismissed on 20.4.1995. This court had observed that the allotment order was passed in violation of the principles of Natural Justice without giving hearing to the landlord, the remand order to examine the question whether the applicant was an unauthorised occupant was not interfered. However, it was directed that the applicant shall not be evicted for a period of three months and in the meantime the question of vacancy as well as the question of allotment would be decided by the Rent Control and Eviction Officer, after hearing the parties concerned.

After remand, the order dated 28.7.1995 was passed rejecting the allotment application with the observation that Devendra Pal Singh had grabbed the house prior to moving the allotment application. Haripal, who was found in occupation by the Rent Control Inspector during inspection was actually an employee of the same society of which the opposite party no.3 was working as President. He was illegally inducted by the applicant Devendra Pal Singh in order to get the allottment of the house in his name. The vacancy has been declared on the ground that Haripal had illegally occupied the house. On 29.7.1995 the vacancy has been notified, declaring Devendra Pal Singh as unauthorised occupant.

The landlord then moved an application for release under Section 16(1)(b) of the U.P. Act No. 13 of 1972(hereinafter referred to as the Act).The submission was that the landlord had no other accommodation in Shahjahanpur and he was residing in the house in question and was practicing advocate in Shahjahanpur. He has also submitted the receipt of local Bar Association membership fee. The prayer has been made for the release of the house in question both for his residence and Advocate's chamber. Affidavits of Ravindra Kumar Gupta and Anil Kumar Mishra were filed to establish that Devendra Pal Singh had grabbed the house on 22.7.1990 by breaking the lock when the landlord was out of town, the landlord was forced to live with his well wishers in Shahjahanpur as he had no other accommodation in the District.

The release application was rejected vide order dated 31.5.1996. The ground of rejection was that the landlord has not been able to establish his bonafide need to occupy the house. While considering the need of the landlord it appears that the release application has been considered on irrelevant grounds that the landlord was unmarried and his brothers and sisters do not require this house and further that the landlord had failed to show that his family members i.e. his sisters and brothers had legal right to reside in the house in question.

In so far as the need of the landlord is concerned, it was held that he has not been able to discharge the burden to prove bonafide need for residence and lawyer's chamber as he had inducted Dharmendra Dixit as tenant in the house in question.The house was given on rent by the landlord from time and again and therefore, he did not need the house for his own use. Rejecting the release, the Rent Control and Eviction Officer had proceeded with the allotment. Out of five allotment applications, the allotment application of one Virendra Pratap Singh alias Munna was allowed. Devendra Pal Singh the opposite party no.3 was termed as unauthorised occupant and, therefore, he was directed to handover the vacant possession to the new allottee.

Again a revision no. 40 of 1996 was filed by Devendra Pal Singh which was allowed on 15.12.1997 and the matter was remanded back to decide afresh. There were two questions to be examined by the revisional court.The first question was whether the Rent Control and Eviction Officer was legally bound to invite the choice of the landlord in respect of prospective allottee as per the provision of Section 17 of the Act and second was whether the allotment order made in favour of Virendra Pratap Singh was contrary to the directions of this court in Writ Petition No.35722 of 1994.It was held that no opportunity was given to the landlord to exercise his right to nominate a tenant of his choice, however, the allotment could only be made as per the direction given by this court in writ petition no. 35722 of 1994 amongst the parties in the previous litigation and as Virendra Pratap Singh was not party,therefore, the allotment could not be made in his name. The matter was again remanded back for decision afresh.

In the meantime revision no. 39 of 1996 against the order of rejection of release application dated 31.5.1996 was filed by the landlord, which was allowed vide order dated 24.12.1997, the order of rejection of release was set aside and the matter was remanded to the court below to decide afresh.

In the meantime the landlord had filed Writ Petition No. 11619 of 1998 with the prayer for restoration of possession the house, notices were issued, however, Rent Control and Eviction Officer was directed to decide the application dated 6.1.1998 moved by the landlord. This application was moved by the landlord on the ground that as the opposite party no.3 Devendra Pal Singh has been declared unauthorised occupant,the house in question could not be allotted to him. This application was dismissed as not pressed by the order dated 25.5.1998 and further by order dated 29.6.1998 the release application dated 21.9.1995 was again rejected.

The plea taken in the release application was that the landlord had no other accommodation and was a practicing Advocate in the District Court at Sahajanpur. Devendra Pal Singh had filed objection to the release application dated 25.11.1995 stating therein that filing of the release application was an after thought. The premises has been allotted in his favour after it was vacated by the then tenant Dharmendra Kumar Dixit. The landlord was living in Lucknow and was practicing in the Lucknow Bench of the High Court, Allahabad. He was not a practicing advocate at Shahjanpur. Earlier when the house was declared vacant, no release application was filed by the landlord as he did not require it. He was unmarried and other co-sharers of the house ie: his brothers and sisters were living outside the city. The Rent Control and Eviction Officer had observed that the release application was earlier rejected by order dated 31.5.1996.The landlord had remained absent on several dates, no new facts have been brought on record and therefore, the objection of Devendra Pal Singh dated 25.11.1995 deserved merit, the release application dated 21.9.1995 was again rejected. Now by order dated 7.7.1998, the premises has again been allotted in the name of Devendra Pal Singh .It was recorded that the landlord did not inform about the vacancy after the sitting tenant Dharmendra Kumar Dixit had shifted to his own house and therefore the benefit of section 17 of the Act could not be given to him, the choice of the landlord could not be taken into consideration for allotment. Shri Virendra Pratap Singh alias Munna was an outsider and in view of the earlier direction of the writ court no other application could be considered. The allotment was made in favour of the Devendra Pal Singh.

Learned counsel for the petitioner submits that the scope of objection on the release application under section 16(1) (b) of the Act is limited. The Rent Control and Eviction Office cannot look into sufficiency or insufficiency of the requirement of the landlord. The only question required to be considered is as to whether the need of the landlord is genuine or not.

After the order of declaration of vacancy was passed and the occupation of Devendra Pal Singh was found unauthorised, his objection could not be considered on the release application. After declaration of vacancy the release is only between the landlord and the Rent Controller Authority. There is no finding in the order of rejection of release that the need set up was not bonafide rather the release has been rejected on the ground that by an earlier order dated 31.5.1996 it was rejected and further the landlord was not appearing in the proceedings. The need of the landlord was not considered on merit rather strange consideration was that no new ground has been made out either in the release application or in the written statement filed by the landlord.

Further second ground of rejection of release was that it was objected by Devendra Pal Singh and therefore the house could not be released in favour of the landlord.

The landlord had stated since the beginning that Devendra Pal Singh was a mere trespasser. He was never inducted as tenant in the house in question by the landlord. Even the tenancy of Dharmendra Kumar Dixit was also denied by the petitioner. The Rent Control Inspector in his report had found that one Haripal son of Babu Ram was in occupation of the house on the date of inspection. The landlord had categorically denied that he had inducted Haripal as tenant rather it was stated that he was an agent of Devendra Pal Singh, and was working in the same office. Haripal was set up by Devendra Pal Singh to get the house declared vacant. The court below while considering the report of the Rent Control Inspector recorded that Haripal was inducted by Devendra Pal Singh and further that Devendra Pal Singh had obtained illegal possession of the house without allotment and kept his peon Haripal in the house.

In view of this finding of fact that Devendra Pal Singh had occupied the house in question without any allotment order no allotment could be made in his favour. The allotment order is liable to be set aside on this ground alone.

So far as the release is concerned, the court below has erred in rejecting it on the objections of Devendra Pal Singh, who himself is an unauthorised occupant. Alternatively, at the best his status could only be of a prospective allottee. As unauthorised occupant or prospective allottee had no right to contest the release, the order of vacancy became final, the premises was required to be released in favour of the landlord who has no other accommodation in District Shahjahanpur.

Reliance has been placed upon the judgment of this court in Dr. Harcharan Singh Vs. 13th Addl. District Judge, Kanpur and others, 1983 ARC 675, wherein it is held that in the application for release under section 16(1) (b) the Rent Control and Eviction Officer was required to consider as to whether the landlord bonafide requires the disputed accommodation for his own residence etc. The Rent Control and Eviction Officer is not required to assess the sufficiency of accommodation. The scope of inquiry is limited only to find out whether the need set up by the landlord is bonafide or malafide.

Placing reliance upon the judgement in M/s. Allahabad Finance Corporation, Allahabad Vs. Rent Control and Eviction Officer, Allahabad and others, 1984(2) ARC page 355, learned counsel for the petitioner submits that if the release application has been considered by the Rent Control and Eviction Officer on wrong approach of fact, his order cannot be sustained.

Placing reliance upon Full Bench decision reported in ARC 1986(1) Talib Hasan and another Vs. Ist Additional District Judge, Nainital and others, it is submitted that the right of prospective allottee arises only after rejection of the landlord's application for release of the accommodation. In fact the prospective allottee comes into picture only after the release application is rejected. It has been held therein that the right of prospective allottee is not absolute. it is contingent upon, firstly the accommodation being vacant and secondly, the building being available for allotment. Only right of the prospective allottee is to file an application and wait for his turn. On an application of release under section 16(1) (b) he has no right to be heard as he has no right or claim against the landlord nor any interest in the disputed property. On these principles, he has no right to be heard in opposition to an application for release filed by the landlord. Even in a case where the allottee's application is rejected on the ground that the accommodation is being released in favour of the landlord, he cannot challenge it on merits or on the ground that he was not heard. Once the Rent Controller Authority is satisfied that the accommodation is bonafide required by the landlord, it goes out of the pool of allotment .

The specific question referred to the Full Bench whether a prospective allottee has a right to file an objection and contest the application for release made by the landlord for a building or part thereof after deletion of the original Rule 13(4) of the Rules under the U.P. Act No. 13 of 1972 has been answered accordingly.

On merits, learned counsel for the respondent Shri Subodh Kumar, however, has not been able to defend the order of rejection of release or the order of allotment.He submits that the orders under challenge were passed as early as in the year 1998, the premises was allotted in the name of Devendra Pal Singh, who is occupation of the same since then. The writ petition filed in the year 2008 i.e. after a period of ten years from the order of allotment could be entertained. The writ petition suffers from severe unexplained latches and is, therefore, liable to be dismissed on this ground alone.

Dealing with the submission, it may be seen that the petitioner had filed writ petition no. 11619 of 1998 which was dismissed by order dated 19.2.2008 with liberty to file a fresh writ petition. To challenge the orders of allotment made in favour of respondent no.3, the liberty was granted by this court to file a fresh writ petition and hence the present petition has been filed in the year 2008 after withdrawal of earlier writ petition bringing complete facts on record. There is no delay or latches on the part of the petitioner in approaching this court challenging the orders impugned in the present writ petition. In fact the petitioner is pursuing his remedy before this court since 1998.

On merits, in a feeble attempt, learned counsel for the respondent submits that the petitioner does not need the house in question, as he is not a practicing Advocate at District Shahjahanpur and further in view of the contrary stand taken by him in the release application regarding the outgoing tenant Dharmendra Kumar Dixit. The order dated 29.6.1998 of rejection of release has been passed as the landlord had stopped appearing before the court,after filing his written submission.

Dealing with the merits of the case, it is evident from the detailed discussion of the events and orders passed in the matter of allotment and release, that the landlord had initially filed objection to the allotment application filed by the Devendra Pal Singh. His categorical stand therein was that there was no vacancy in the house in question and three persons namely Dharmendra Kumar Dixit, Satish Chandra Gupta, and Haripal have been set up by Devendra Pal Singh in a conspiracy to grab the house in question under the garb that the sitting tenant had vacated it. Dharmendra Kumar Dixit who was set up as the sitting tenant had filed an affidavit stating therein that he was outgoing tenant of the house. The Rent Control Inspector in his report had given name of two persons namely Dharemendra Kumar Dixit as earlier occupant of the house and Hari Pal, who was found in occupation of the house in question on the date of inspection. The possession of Dharmendra Kumar Dixit as tenant has been believed only upon his submissions and the statement made by one Satish Chandra Gupta before the Rent Control Inspector.There was no other proof of his tenancy. Haripal's statement was that he had occupied the house with the permission of the landlord and was paying rent was also believed though he could not even state the correct address of the landlord. It is further reflected from the report of the Rent Control Inspector that the house was inspected in the presence of four persons namely Devendra Pal Singh, the prospective allottee, Satish Chandra Gupta, Dharmendra Kumar Dixit and Harpal who were found on the spot. There is no reference of any notice or information to the landlord on record of the date of inspection. It is thus evident that the inspection has been carried out behind the back of the landlord without giving any information or notice to him, the report was,therefore, exparte.

On the specific objection raised by the landlord, no effort was made by the Rent Controller Authority to examine as to whether the house was earlier occupied as tenant by Dharemdnra Kumar Dixit and he had vacated the same . The status of Harpal as occupant of the house in the event of categorical denial by the landlord being his tenant was not examined. In the order of vacancy, the Rent Control and Eviction Officer had observed that Harpal was peon of the same society whereof the respondent no.3 was President at that point of time.This fact gave rise to an irresistible conclusion that Harpal had been inducted by Devendra Pal Singh under his influence in order to get the declaration of vacancy. It was further observed by the Rent Control and Eviction Officer on the basis of the report of Rent Control Inspector that Devendra Pal Singh was in occupation of the house in question prior to the allotment. These facts clearly establish the contention of the landlord that the house has unauthorisedly been occupied by Devendra Pal Singh on 22.7.1990 by breaking the lock.The fact of unauthorised occupation of the house by Devendra Pal Singh itself disentitled him from maintaining his application for allotment.

Moreover the orders of rejection of release twice passed by the Rent Control and Eviction Officer on trivial grounds further show that Rent Control and Eviction officer had predetermined to allot the house to Devendra Pal Singh. On both the occasion, different reasons have been given for rejection of the release application. On the first occasion, it was rejected on the ground that the landlord had failed to establish his bonafide need as he had earlier given the house on rent. Now second time the release application has been rejected on the objection raised by the prospective allottee i.e. Devendra Pal Singh that the landlord's need is not bonafide.

A perusal of the objection to the release application dated 25.11.1995, filed by Devendra Pal Singh shows that he had stated that he had occupied the house in question after it was vacated by Dharmendra Kumar Dixit and was residing therein as a tenant. He has also stated that the house was allotted to him. There is no allotment order prior to 25.11.1995 in his name. First order of allotment dated 30.10.1990 has been set aside, in revision which was allowed on 25.7.1992. Thereafter several rounds of litigation have taken place between the parties. The Rent Control and Eviction officer had not only erred in law but appears to have acted on extreneous consideration in helping Devendra Pal Singh and passing illegal orders in his favour again and again. The Rent Control and Eviction Officer appears to have acted at the behest of Devendra Pal Singh in totally ignoring that at the best objector could be considered as prospective allottee and his objections could not have been entertained to challenge the merits of the release application. The release application could not have been rejected on the basis of his objection.

Further the allotment can not be made in his favour for the reason that it is clear from the record that he was found in unauthorized occupation of the house in question at the time of filing of the allotment application. From his objection dated 25.11.1995 and also from the address given in the allotment application it is established that Devendra Pal Singh had occupied the house in question without there being any allotment order and, therefore, he was an unautorised occupant of the house.

The contention of the landlord that Devendra Pal Singh had unauthorizedly entered into the house in July 1990 by breaking the lock and further he had set up Dharmendra Kumar Dixit and Harpal as tenants to get the premises vacated and allotted in his favour is established from the records.

Further the records prove that it is a clear case of house grabbing by an influential person who has managed to get illegal orders in his favour by manipulation and monoeuvers.

Resultantly the orders dated 25.5.1998, 29.6.1998 and 7.7.1998 passed by the Rent Control and Eviction Officer are hereby set aside.

There is nothing on record to establish that Dharmendra Kumar Dixit was ever tenant of the house in question . Only document produced by him is Ration Card which could not be treated as proof of tenancy.

However, it seems that at some stage the landlord had succumbed to the misdeeds of these conspirators and therefore, the house was declared vacant by order dated 28.7.1995.The landlord had given up the challenge to vacancy order but the order of rejection of his release and subsequent order of allotment to Devendra Pal Singh can not be sustained, in view of the detailed discussion made above. The disputed house is liable to be released in favour of the landlord Kaliash Chandra Saxena.

Devendra Pal Singh i.e. opposite party no.3 is a mere trespasser and has unauthorisedly grabbed the house.

As per his own submission he has occupied the house for the last more than 25 years . There is nothing on record to suggest that he has ever paid rent and damages to the landlord for the use and occupation of the house. The respondent no.3 has also succeeded in relegating the owner to unscrupulous litigation in connivance with the Rent Control and Eviction Officer. The landlord had suffered hardship both mental and physical and monetary loss due to litigation and has been deprived of his property for more than 25 years for the misdeeds of opposite party no.3, who had misused the process of law. This court is, therefore, of the opinion that the present writ petition is to be allowed with a Special cost of Rs. 1,00,000 (one lac) payable to the landlord by the opposite party no.3.

This apart the opposite no.3 Devendra Pal Singh is liable to pay the damages @ Rs.1000/- per month for the use and occupation of the house in question from the date of his illegal occupation i.e. since 26.7.1990 till the date of its vacation by him. The house is to be vacated by the opposite party no.3 forthwith. The cost and the damages are to be paid by the opposite party no.3 within three weeks from today.

Before vacation of the house, the entire electricity dues, if any, attached to this house shall also be paid by opposite no.3. In case opposite party no.3 fails to pay the cost , arrears of rent, and damages as imposed by this court or the electricity bill of the meter fixed in the house, the executing court shall proceed  to realise the said dues in accordance with law.The executing court is directed to proceed forthwith to ensure the compliance of this order.

With the above observations and directions, The writ petition is allowed with costs.

Order Date :- 13.10.2015

Atul kr. sri.