D. S. Rana v. District Judge, Dehradun — 1993 DIGILAW 16 (ALL)

Judgment S.R. Singh, J. 1. Common question of law and fact being involved, these two writ petitions were heard together for being disposed of by a common order with the consent of thee parties learned counsel. 2. The dispute in writ petition No. 29883 of 1992, Dr. D.S. Rana v. District Judge, Dehradun and others; relates to out houses of Manmohan Cottage Estate situate at Mall Mussoorie and in writ petition No. 19884 of 1992, Abdul Hamid v. District Judge, Dehradun and others, relates to two out houses situate in Walnut Grove Estate at Mall Mussorie, of which the respondents no. 3 and 4 are in landlords. The premises in dispute known as Manmohan Cottage out houses, consists of a room on the ground floor of the building at Mall Mussoorie. It was in the tenancy of Dr. D.S. Rana. Similarly the premises in dispute known as Walnut grove estate situate at Mall Mussoorie consists of two out houses on the ground floor and was in the tenancy of Abdul Hamid. The respondents no 3 and 4 purchased the premises in dispute and moved an application under section 21(1)(a) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for eviction of the petitioner tenants. It appears that the applications were rejected and thereafter the respondents landlord moved a common application for release under section 16(1)(b) of the Act on the ground of deemed vacancy under section 12(1)(b) of the Act the Rent Control and Eviction Officer declared the vacancy and thereafter released the premises in favour of the respondent landlords vide order dated 15-5-1987. The tenants petitioners went up in revision. Rent Control revision no. 116 of 1987 and Rent Control revision no. 147 of 1987 were filed by Dr. D.S. Rana and Abdul Hamid respectively. Both the revisions ware allowed by separate orders dated 10-5-1988, 31-8-1988 respectively, and the matter was remanded back to the Rent Control and Eviction Officer to decide the ease afresh in accordance with the observations made in the body of the aforesaid judgments. It was held by the Revisional Court that the order dated 6-5-1987 declaring vacancy was illegal in that it was not stated by the landlords in evidence as to who were the persons who were allowed by Dr. It was held by the Revisional Court that the order dated 6-5-1987 declaring vacancy was illegal in that it was not stated by the landlords in evidence as to who were the persons who were allowed by Dr. Rana to occupy the tenanted premises and in the case of Abdul Hamid the order dated 6-8-1987 declaring vacancy was held to be vitiated on the ground of non-consideration of material evidence. It may be stated that in case of the premises under the tenancy of Abdul Hamid it was alleged that he allowed one Anwar to occupy the premises which gave rise to deemed vacancy in as much as Anwar was not a member of the tenant's family. After the remand the matter was again taken up by the Rent Control and Eviction Officer. The parties were allowed to lead evidence. By means of fresh affidavits it was brought on record that so far as the premises under the tenancy of Dr. Rana is concerned, it was illegally sublet to one Udai Singh, an employee of Hamer Company and so far as the premises under the tenancy of Abdul Hamid is concerned, it was brought on record by means of affidavit that the premises was in occupation of tenant's brother and that the tenant had removed his own effects from the tenanted premises. 3. The arguments in the case were heard by the Rent Control and Eviction Officer on 3-5-1991 and 23-5-1991 was fixed for orders. 4. It appears that the order could not be passed on 23-5-1991 and the file was put up before the Rent Control and Eviction Officer on 25-5-1991, on which date lawyers were on strike, therefore the file was ordered to be put up on 13-6-1991 and on that day it was ordered to be put up on 21-6-1991 for orders on the question of vacancy in as much as the order could not be prepared due to reason of the fact that the Rent Control and Eviction Officer was busy in hearing of other cases. It appears that on 14-6-1991 an application was moved on behalf of the landlords for a surprise inspection under rule 27(2) of the Rules made under the Act, so that the truth may be ascertained as to who was in actual occupation of the premises in dispute. It appears that on 14-6-1991 an application was moved on behalf of the landlords for a surprise inspection under rule 27(2) of the Rules made under the Act, so that the truth may be ascertained as to who was in actual occupation of the premises in dispute. The accommodation was inspected on 21-6-1991 behind the back of the tenant-petitioners and without any notice to them IT is said that at the time of inspection the Rent Control and Eviction Officer found Udai Singh in possession of the premises in the tenancy of Dr. D.S. Rana and the one in the tenancy of Abdul Hamid was found to be in occupation of his brother and brother's family members. The Rent Control and Eviction Officer on consideration of the evidence on record and the fact allegedly found on spot inspection declared the vacancy vide order dated 22-6-1991. Revisions preferred against the said order were dismissed by a common order dated 3-8- 1992. It is the validity of the order dated 26-6-1991 and 3-8-1992 which is under challenge in these two writ petitions. I have heard the learned counsel for the parties. 5. Sri S.S. Nigam, learned counsel appearing for the petitioner urged that the Rent Control and Eviction Officer was not justified in taking into consideration the facts allegedly found by him at the spot inspection on 21-6-1991 in that the alleged spot inspection was made behind the back of the petitioners and without notice to them and also for the reason that no inspection memo was prepared by the said authority, SRI Nigam placed reliance upon the provisions of sub-rules (2) and (4) of rule 27 of the Rules made under the Act which read as under : "27. Local Inspection :.......... (2) The parties or their recognised agents shall be given at least two days' time of the proposed inspection : Provided that no notice shall be necessary where (a) in the opinion of the District Magistrate, the prescribed authority, or the appellate or revising authority for reasons to be recorded, the purpose of Inspection is likely to be frustrated by giving of such notice; or (b) the occupier of a building consents to such inspection without notice or on shorter notice. (3) ................ (4) After inspection, the District. (3) ................ (4) After inspection, the District. Magistrate, the Prescribed Authority or the appellate or revising authority, as the case may be, shall record a note of inspection in brief, and such notice shall form part of the record." 6. Learned counsel for the respondents urged on the other hand, that the notice of inspection was not given to the petitioners due to the reasons comprehended by clause (a) of the proviso to sub-rule (2) of rule 27. It was urged by the learned counsel for the respondents landlord that the purpose of inspection was likely to be frustrated by giving notice to the petitioners and the Rent Control and Eviction Officer was, therefore, not required to record reasons in as much as reasons were implicit in the facts stated in the application moved on behalf of the respondents landlords for surprise Inspection. Having heard the learned counsel for the parties. I am of the opinion that the spot inspection had to be made in the manner indicated in rule 27 of the Rules. Sub rule (2) of rule 27 visualises that at least two days' notice of the proposed inspection shall be given to the parties or their recognised agents and sub-rule (4) enjoins a duty upon the Rent Control and Eviction Officer to record a nolle of inspection, in brief, which in the present case was not done It is settled propositions of law that where a thing is required to be done in a particular manner it must be done in that manner or not at all. If the manner prescribed for doing a thing has not been followed, the thing shall not be deemed to have been done at all. Admittedly, reasons dispensing with, the notice contemplated by sub-rule (2) were not recorded by the Rent Control and Eviction Officer. Clause (a) of the proviso to sub-rule (2) of rule 27 carves out an exception to the general rule of making inspection after notice to the parties It empowers the Rent Control and Eviction Officer to dispense with the notice for reasons to be recorded if he is of the opinion, that giving of notice to the parties or their agents shall frustrate the purpose of inspection. It may be observed that requirement of giving notice as visualised by sub-rule (2) and the requirement or preparing spot memo in brief as required by sub-rule (4) of rule 27 are in fact part of the rule of natural justice and constitutes a machanism which is intended to secure the rule of law and to avoid the arbitrariness on the part of the Rent control and Eviction Officer and thereby to generate and sustain faith in the administration of justice. It is settled that rule of natural justice in its expanded horizon embraces within its ambit the requirement of giving masons in support of the orders which have civil consequences or which may tend to impair the rights of persons as visualised by sub-rule (2) of rule 27 which has codified the rules of natural Justice and is intended to protect the interest of tenants Dispensation of notice in exercise of power under clause (a) of the proviso to sub-rule (2) may adversely affect the right conferred upon the tenants under sub-rule (2). The requirement of giving notice under clause (a) and the requirement of preparing spot memo in fact constitutes unbuilt safeguard to the rule of law. In London and Cydeside Estates Ltd, v. Aberdeen D.C. (1979) All. ER 876, it was observed by Lord Chancellor that, "when Parliament lays down a statutory requirement for exercising legal authority it expects its authority to be obeyed down to the minutest detail the said observation has been quoted with approval by the Supreme Court in Pankaj Bhargava's case (1991) 1 SCC 556 . It is also settled and as held by the Supreme Court in S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 , that the principles of natural justice know of no exclusionary rule depended on whether it would have made any difference if natural had been observed in as much as non observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. Accordingly; I am of the view that recording of reasons as contemplated by clause (a) of the proviso to sub-rule (2) for dispensation of notice is mandatory and the failure to record reasons may be fatal. It is true that consequences of failure to record reasons in dispensation of notice have not been provided for in the Act. Accordingly; I am of the view that recording of reasons as contemplated by clause (a) of the proviso to sub-rule (2) for dispensation of notice is mandatory and the failure to record reasons may be fatal. It is true that consequences of failure to record reasons in dispensation of notice have not been provided for in the Act. But as noticed above, the requirement of giving notice under sub-rule (2) being the requirement of natural Justice, its non-observance would be fatal rendering the Inspection made by the Rent Control and Eviction Officer without notice as non-est meaning thereby that the facts found by the Rent Control and Eviction Officer on inspection behind the back of the tenants would not be read in evidence. Similarly the failure to prepare inspection memo in brief as required by sub-rule (4) would also be fatal in as much as in absence of spot inspection memo there would be nothing on the record on which reliance can be placed by the Rent Control and Eviction Officer and which may be treated as evidence for the purpose of coming to any conclusion on the question of vacancy. In absence of inspection memo it is not possible to find out as to what was found by the Rent Control and Eviction Officer at the time of spot inspection. As such, in my opinion, the facts found by the Rent Control and Eviction Officer and kept in his mind ought not to have been taken notice of in declaring the vacancy in absence of a memo. The Rent Control and Eviction Officer has declared the vacancy in the present case on the basis of the opinion formed as a result of spot inspection as also other evidence but it is not possible to say, with any amount of certainty, as to what extent the mind of the Rent Control and Eviction Officer was influenced by what he found on the spot inspection, to which the petitioners had no opportunity to object for the simple reasons that they bad no notice of the spot inspection and there was no spot inspection memo on the record to be objected to. It is true that no mala fide or motive has been alleged against the Rent Control and Eviction Officer, but as discussed above, the failure to record reasons dispensing with notice and the failure to prepare the: spot inspection memo have resulted in breach of natural justice which by itself is enough to vitiate the orders impugned in these writ petitions. The finding on the question of vacancy is based partly on relevant and admissible evidence and partly on non-existing material. As such the impugned order are vitiated by error of law. 7. In the result the writ petitions succeed and are allowed. The Impugned orders dated 26-6-1991 and 3-8-1992 are quashed. The Rent Control and Eviction Officer is directed to decide the question as to the existence of vacancy afresh in accordance with law. Petition allowed.