Kali Charan Verma v. Xth Addl D J Kanpur — 1995 DIGILAW 708 (ALL)

Judgment (1.) SUDHIR Narain, J. This writ petition is directed against the order, dated 17-11-1993, passed by the respondent No. 1, allowing the revision filed by respondent No. 2, under Section 18 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act). The facts in brief are that the petitioner filed an application for allotment of premises 43/128 Dhobi Mohal, Kanpur consisting of 1 room and 1 kothri, on the allegations that he was already in occupation of another accommodation of the same building, as tenant consisting of 1 room and 1 kothari, but the accommodation with him was insufficient and another tenant of the same building, namely, Ramesh Kumar Nigam was likely to vacate the accommodation and the same may be allotted to him. (2.) ON the said application, the Rent Control Eviction Officer, directed the Rent Control Inspector to submit a report. The Rent Control Inspector submitted a report on 26 June, 1989, stating that he tried to contact the landlord several times but he could not contact Mm. He took the statement of Ramesh Kumar Nigam, sitting tenant. He gave statement in writing that on account of his family problems, he is likely to vacate the accommodation. This statement is also alleged to have been recorded on 26th June, 1989. ON the basis of the said report the Rent Control and Eviction Officer directed for issuance of the notice to the landlord (respondent No. 2). The notice is dated 4th July, 1989. The process-server submitted a report on 5th July, 1989 stating that respondent No. 2 refused to accept the notice and he purported to have obtained the signature of two witnesses. ON the notice, the Rent Control and Eviction Officer on the basis of the report of the Rent Control Inspector declared the vacancy by his order dated 2nd August, 1989. He fixed 28 August, 1989 for hearing the application for allotment of the accommodation. 9th August, 1989 was fixed for hearing of the objection. The notice is alleged to have been sent to the landlord (respondent No. 2) on the same date and again the notice was sent through process-server on 5th August, 1989, the process-server submitted a report that the respondent No. 2 refused to accept the notice and he is alleged to have obtained signature of two witnesses. The notice is alleged to have been sent to the landlord (respondent No. 2) on the same date and again the notice was sent through process-server on 5th August, 1989, the process-server submitted a report that the respondent No. 2 refused to accept the notice and he is alleged to have obtained signature of two witnesses. The allotment order was passed in favour of the petitioner on 5th September, 1989 and within two days of passing of the allotment order i.e. on 7th September, 1989, the petitioner obtained possession of the disputed accommodation. The respondent No. 2 filed revision No. 146 of 1989 under Section 18 of the Act, before the Xth Additional District Judge, Kanpur against the said order on 28th September, 1989, The revision was heard by respondent No. 1 and it has been allowed on 17th November, 1993, on the ground that the landlord was not served with the notice and service of notice on him was fictitious. Another revision No, 144 of 1989 was filed by one Brandawan Verma, who was also one of the prospective allottee. The respondent No, 1 allowed the said revision also, on the finding that the Rent Control and Eviction Officer failed to consider material evidence and various aspects of the matter. The petitioner has challenged both these orders in this writ petition. (3.) I have heard learned counsel for the parties at length. The learned counsel for the petitioner firstly urged that the Court in revision, exercising the power under Section 18 of the Act, has no power to decide the question as to whether the landlord was served with the notice, as it is a pure question of fact. He has placed reliance on Nand Kishore v. Additional District Judge, 1979 ARC 497. In that case a revision was filed against the order of allotment by the landlord. The Court in revision had recorded a finding that the landlord was served, against the decision passed by the District Judge in the revision, a writ petition was filed. He has placed reliance on Nand Kishore v. Additional District Judge, 1979 ARC 497. In that case a revision was filed against the order of allotment by the landlord. The Court in revision had recorded a finding that the landlord was served, against the decision passed by the District Judge in the revision, a writ petition was filed. The finding of the District Judge was challenged on the ground that the District Judge wrongly relied upon an endorsement, the Court held that the finding recorded by the District Judge did not suffer from any error of law and made the following observations : "I have perused the endorsements and I do not agree with the learned counsel for the petitioner that these endorsements by themselves or otherwise lead to the conclusion that the service of the notice was fake and that the endorsements are forged or manipulated." The Court after considering every aspect of the matter did not find any merit in the writ petition and dismissed the same. In the present case, the District Judge (respondent No. 1) has recorded tile finding that the landlord was not served with the notice. (4.) IT a person files an application for allotment under Section 16 of the Act, alleging that there is a vacancy, a notice has to be given to the landlord and it is only after notice is given, the Rent [control and Eviction Officer, has to determine the vacancy. When the vacancy is to be determined, he has to follow the procedure of giving notice as required under Rule 8 of the rules framed under the Act. Rule 8 provides that the District Magistrate shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected. Sub-rule (2) of Rule 8 provides that the inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable person in the locality. After the report is submitted and the vacancy u notified, the landlord is again entitled to receive notice under Rule 9 (3) of the rules framed under the Act. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable person in the locality. After the report is submitted and the vacancy u notified, the landlord is again entitled to receive notice under Rule 9 (3) of the rules framed under the Act. The proceedings for allotment will be vitiated if no notice is received by the landlord before the order of declaration is passed. The Rent Control and Eviction Officer has jurisdiction to allot the premises only when the notice is served upon the landlord. It is jurisdictional fact and the revisional court has jurisdiction to consider as to whether there was sufficient material to come at the conclusion that the notice was served upon the landlord. (5.) THE second submission of learned counsel for the petitioner is that there was sufficient material on record, which establishes that the respondent No. 2 was served with the notice and secondly there was no other evidence, which could establish that the notice was not served upon the respondent No. 2. (6.) THE respondent No. 2 filed a revision and in the revision, he had given detailed facts. In the said revision, it was specifically mentioned by the respondent No. 2 that he was not served with the notice. In para 3 of the said revision, the respondent No. 2 has stated that the petitioner managed the service of the notice upon him by refusal while the fact of the matter is that no notice was ever brought or tendered to him and the order of allotment was passed ex parte to his prejudice. There was sufficient denial by respondent No. 2 to consider as to whether the report of process-server was sufficient to indicate that the landlord had actually refused to accept the notice. He also considered other relevant circumstances which indicated that the service of notice on the landlord was fictitious and he never refused to accept it. A photostat copy of the report of the process-server bearing signatures of witnesses has been annexed to the writ petition. From the report of process-server it appears that two alleged witnesses who is alleged to have put endorsement used same pen and written in the same style clearly indicating that it was one and same person writing for two different witnesses. From the report of process-server it appears that two alleged witnesses who is alleged to have put endorsement used same pen and written in the same style clearly indicating that it was one and same person writing for two different witnesses. (7.) THE petitioner has filed copy of the order sheet of the proceeding before the Rent Control and Eviction Officer. In the order sheet dated 2nd August. 1989, he has not indicated that ha accepted the report of the process server as correct. He has taken a note with regard to the statement of Ramesh Kumar Nigam alleged outgoing tenant, but he did not say anything regarding service on respondent No. 2. There are other circumstances, which further indicate that there was a collusion and there was no service of notice on respondent No. 2. It is admitted fact that the petitioner is tenant living in house No. 43/128 Dhobi Mohal, Eanpur Nagar and in the adjoining portion one Ramesh Kumar Nigam was living as a tenant. THE landlord is also residing in another adjoining house No 43/127 Dhobi Mohal, Kanpur Nagar. THE tenant never intimated the vacancy to the landlord, as provided under Section 15 (1) of the Act. THE tenant is required to intimate about the vacancy under sub-section (2) of Section 15 of the Act to the landlord as well as to the District Magistrate. THE petitioner filed application for allotment on 24 May, 1989, On his application a report was called from the Rent Control Inspector, and he submitted a report on 26 June, 1989 and he obtained statement in writing of the alleged outgoing tenant Ramesh Kumar Nigam on the same day in which he had stated that he made statement that he is desiring to vacate the premises in future on account of family circumstances. When the application was filed by the petitioner, there was nothing on record to show that there was actual or vacancy, likely to fall or there was deemed vacancy, as provided under Section 12 of the Act. THE Rent Control Inspector also submitted a report indicating that he contacted the landlord but he could not contact him. He has not stated that in what manner he contacted the landlord. It was also not shown that he met any member of family of the landlord. THE Rent Control Inspector also submitted a report indicating that he contacted the landlord but he could not contact him. He has not stated that in what manner he contacted the landlord. It was also not shown that he met any member of family of the landlord. THE finding recorded by the respondent No, 1 that the notice was not served and it was fictitious does not suffer from any error of law. (8.) RULE 28 of the rules framed under the Act provides the manner in which notice is to be served on the person concerned. The notice is to be served by giving or tendering to such person or his counsel or to any adult member of M/s family. If no such person is found, by leaving at his last known place of abode or business and if none of the means aforesaid is available by affixing it on some conspicuous part of his last known place of abode or business. The manner of giving or tendering the notice has not been provided under Rule 28. It may be through process server, by sending it under certificate of posting or by registered post. If the notice is served through process server and the process-server submits the service by refusal it is the duty of the authority concerned to seed notice by registered post. In case there is an application for allotment or release he can be directed to provide the necessary stamps and envelop as provided under sub-rule (2) of the Rule 28. (9.) THE Rent Control and Eviction Officer cannot place implicit reliance upon the report of the process- server. THE names of the witnesses indicated by him are examined personally by the Rent Control and Eviction Officer. There is every possibility that the process-server may collude with the applicant who has filed application under Section 16 of the Act. Normally every landlord being interested in his property, will accept the notice. It is the duty of the Rent Control and Eviction Officer to satisfy itself as to whether the notice has been served. He has to pass specific order before proceeding further that he treats the notice as sufficient for reasons given by him in his order. In case no specific reason is given treating the notice as sufficient, he will be failing in his duty prescribed under law on him. He has to pass specific order before proceeding further that he treats the notice as sufficient for reasons given by him in his order. In case no specific reason is given treating the notice as sufficient, he will be failing in his duty prescribed under law on him. THE public will lose confidence in him and further he may be treated as a party to a collusion. There is no reason when the proceeding for allotment takes place, the landlord shall keep mum and watch the proceeding to see an adverse order being passed against him. (10.) IT may also be noted that the allotment order was passed on 5th September, 1989 and the petitioner had obtained possession within two days of passing of the order of allotment i.e. on 7th September, 1989. There was no letter of the landlord before the Rent Control and Eviction Officer that he had given his consent for taking possession. Rule 14 of the rules framed under the Act, specifically provides that at least 7 days notice is to be given to the landlord before delivery of the possession, but it he fails to comply with the same, the second notice should be given. Considering entire fact and circumstances it is clear that the entire allotment proceedings was collusive. Learned counsel for the petitioner relied upon a case of Aijaz Hussain v. IIIrd Additional District Judge, Kanpur, 1979 ARC 310 wherein it was that if goods are removed, there will be a deemed vacancy. In other case of Ganpat Roy v. Additional District Magistrate 1985 ARC 73, it was hell that the writ petition is maintainable against the order of declaring vacancy. In other case of Raghunath Prasad v. Smt. Krishna Dixit, 1991 ARC 241 , it was held that the finding recorded by the Rent Control and Eviction Officer cannot be set aside in revision. In Har Prasad Verma v. IIIrd Additional District Judge, Mathura, 1983 ARC 65, it was held that the finding which has been given without considering material on record can be set aside. None of these cases are applicable to the facts of the present case. (11.) IN view of the above, the writ petition is dismissed with costs against the order passed in revision No. 146 of 1989 - Bishan Behari Lal v. City Magistrate Rent Control and Eviction Officer, Kanpur Nagar. None of these cases are applicable to the facts of the present case. (11.) IN view of the above, the writ petition is dismissed with costs against the order passed in revision No. 146 of 1989 - Bishan Behari Lal v. City Magistrate Rent Control and Eviction Officer, Kanpur Nagar. (12.) AS regards, the order passed in revision No. 144 of 1989- Brandwan Verma v. City Magistrate/rent Control and Eviction Officer, Kanpur Nagar is concerned, it has become infructuous as allotment order has been set aside. The District Magistrate, Kanpur Nagar is directed to get possession of the disputed accommodation restored to respondent No. 2 under Section 18 (3) of the Act within two weeks from the date of production of copy of this order. Petition dismissed.