Dinesh Kumar v. IInd A D J Aligarh — 1997 DIGILAW 1270 (ALL)

Judgment : J. C. Gupta, J. 1. Both these writ petitions have been filed against the order of the Rent Control and Eviction Officer dated 14-9-78 declaring the accommodation in question vacant and the order dated 19-11-81 allotting the shop in question in favour of respondent No. 3 as well as the, order dated 1 -4-82 passed by the IInd Additional District Judge, Aligarh dismissing the revision filed by the petitioners. 2. THE dispute relates to shop No. 123-A Madar Gate, Aligarh, which was under the tenancy of one Gulab Chandra Jain, Dr. R. K. Parashar, respondent No. 3 and one Gopal Krishna applied before the Rent Control and Eviction Officer, respondent No. 2 for allotment of the aforesaid shop alleging that a vacancy has accrued, as the shop was in unauthorised occupation of the petitioners without any order of allotment in their favour. Petitioner Dinesh Kumar contested the said proceedings alleging that he was in occupation of the shop since 1-6-76 as the tenant with the consent of the landlord and his occupation stood regularised under Section 14 of the UP. Act No. 13 of 1972, (hereinafter referred to as the Act). Respondent No. 2 however, found no force in the objection of the petitioner and vide order dated 4-9-78 notified vacancy. Petitioner Dinesh Kumar as well as the petitioner of the connected writ petition Chandra Pal Varshney, who is the father of Dinesh Kumar, also moved applications for allotment of the shop. By the order dated 19-11-81 the disputed shop has been allotted in favour of respondent No. 3. Revisions filed by the petitioners under Section 18 of the Act have also been dismissed by respondent No. 1. Before this Court learned Counsel for the petitioners firstly challenged the order declaring vacancy by contending that since the evidence on record proved that petitioner Dinesh Kumar was in occupation of the shop in question since before the date of commencement of the Act i.e. 15-7-76, the occupation of the petitioner became regularised under Section 14 of the Act, as such the shop could not be declared vacant. On perusal of the record no substance is, however, found in this submission of the learned Counsel. On perusal of the record no substance is, however, found in this submission of the learned Counsel. On appraisal of material and the evidence on record categorical findings of fact have been arrived at by both the Courts below that the petitioner Dinesh Kumar was not in occupation as a tenant before the relevant date i.e. 15-7-76, therefore, he was not entitled to get the benefit of the provisions of Section 14 of the Act and since the occupation of the petitioner Dinesh Kumar was without an order of allotment in his favour, a deemed vacancy occurred under Section 12 of the Act. These findings of fact could not be shown to be erroneous in law. It is worth while to mention here that an application was moved under Section 10 (6) of the Act for permission to admit Baldeo Prasad and Dinesh Kumar as partners with Gulab Chandra Jain, which was dismissed by the order dated 9-11-76. Dinesh Kumar was never treated as a sole tenant of the shop in question even by the landlord before 15-7-76. The question of tenancy has been gone into by both the Courts below in detail and concurrent findings of fact have been recorded that the occupation of Dinesh Kumar was unauthorised and the shop in question was vacant in the eye of law and was open for allotment. Since there was no application of the landlord for release, the question for allotment arose before the Rent Control and Eviction Officer. There were four applicants before the said authority namely, Dr. R. K. Parashar, respondent No. 3, Chandra Pal Varshney (petitioner of connected writ petition), Dinesh Kumar (petitioner of the present writ petition) and Gopal Krishan Sharma. The Rent Control and Eviction Officer considered the applications and thereafter passed the impugned order of allotment in favour of respondent No. 3. 3. THE main ground on which the validity of the impugned order is challenged, is that petitioner's application for allotment has been illegally rejected by the Rent Control and Eviction Officer on un tenable grounds. The Rent Control and Eviction Officer considered the applications and thereafter passed the impugned order of allotment in favour of respondent No. 3. 3. THE main ground on which the validity of the impugned order is challenged, is that petitioner's application for allotment has been illegally rejected by the Rent Control and Eviction Officer on un tenable grounds. It is contended by the learned Counsel for the petitioners that the application of the petitioner Dinesh Kumar for allotment has been rejected merely on the ground that the said application was not liable to be considered because petitioner Dinesh Kumar was held to be an unauthorised occupant and there has been no consideration of the said application on merits. It is argued by petitioner's Counsel that there is no absolute bar either under the Act or Rules for non- consideration of the application for allotment moved on behalf of an un authorised occupant. He further urged that the revisional Court has committed a manifest error of law in upholding the impugned order of allotment by applying Rule 11, which applies only to a residential building and not to a shop. 4. IT is also argued on behalf of the petitioner of the connected writ petition that the application for allotment made by Chandra Pal Varshney has not been considered on merits merely on the ground that he happened to be the father of Dinesh Kumar, who was found to be in unauthorised occupation of the shop in question. Thus according to petitioner's Counsel non-consideration of Chandra Pal's application amounts to an apparent error of law on the face of the record. On an examination of the relevant provisions of the Act and Rules, this Court finds force in the submissions of the learned Counsel for the petitioners that the revisional Court has committed a gross error of law in affirming the order of allotment by applying Rule 11, which makes a provision for giving priority in the matter of allotment of a residential building. It may be not that the principle of first come first served' is not to be found in the provisions, which deal with the making of allotment in respect of non-residential buildings. Section 41 of the Act authorises the State Government to make rules to carry out the purposes of this Act. It may be not that the principle of first come first served' is not to be found in the provisions, which deal with the making of allotment in respect of non-residential buildings. Section 41 of the Act authorises the State Government to make rules to carry out the purposes of this Act. Rule 10 of the Rules framed under the Act prescribes the procedure for making allotment of a residential building. The applications for allotment are to be classified according to the priorities specified in Rule 11 of the applications are to be registered in the order, they are received. 5. RULES 10 and 11 read as under: - "10. Allotment procedure.- (Sections 16 (1) (a) and 34 (8) - (1) (a) An application for allotment of a building shall be made in Form a (b) The District Magistrate shall maintain a register of applications for allotment of buildings. (c) The applications shall be classified ac cording to the priority categories specified in Rule 11 and shall be registered in order of receipt of applications. (d) For each priority category, there shall be a separate register and the applicant shall be given a serial number showing the number and date of his registration and the priority category in which he has been registered. (e) Each such register shall be open to inspection by any member of the public on application being made in that behalf. (2) In the case of requirements for Government office and accommodation for Government servant while posted in that local area, a request by the Head of the Department or Principal Head of Office shall be sufficient and his letter shall be treated as a substitute for the application and shall be entered as such. (3) A tenant against whom a suit for eviction filed with the permission of the District Magistrate under Section 3 of the old Act or an application under Section 21 is pending may immediately apply for allotment of alternative accommodation and need not wait till the decision of that suit or application. Such application shall be without prejudice to the result of the said proceedings. Such application shall be without prejudice to the result of the said proceedings. (4) The register shall be prepared afresh for every calendar year and applicants who are unable to secure allotment by the end of a year and whose applications were not rejected as not maintainable may apply by the 15th January of the succeeding year for renewal of registration of their applications and shall thereupon retain their original relative priority in comparison to other applicants and the names of persons whose applications are so renewed shall stand above the names of new applicants in that year. (5) A building shall not ordinarily be allotted to the following persons or for the following purposes - (a) A tenant against whom a decree or order has been passed for ejectment on any ground mentioned in clauses (a) to (f) of sub section (1) of Section 3 or under Section 7-B of the old Act or on any ground mentioned in clauses (a) to (f) of sub-section (2) of Section 20 during a period of two years from the date of such decree or order or any member of his family or any person of whose family he is a member; (b) For residential accommodation of employees of business concerns who are al lowed by their employers full reimbursement of house rent paid by them; (c) For residential accommodation of a person already occupying a building governed by the Act or any public premises other than any premises granted to him free of rent in connection with the discharge of any duties of public nature and situated anywhere in the State or any member of the family of such person or any person of whose family he is a member, except where such person will vacate the other building or public premises at the time of allotment; (d) For accommodating a person who has entered into unauthorised occupation of the building or any part thereof without the written consent to the landlord. (e) A person who is deemed to have ceased to occupy a building within the meaning of Section 12 (1) (b), or who is evicted under Section 21 by virtue of being a tenant referred to in Explanation (1) of Section 21 (1) shall not be allotted that or any other residential building and a person who is deemed to have ceased to occupy a building within the meaning of Section 12 (2), shall not be allotted that or any other non-residential building for a period of two years from the date of such eviction or deemed cessation, as the case may be: Provided that - (a) if the District Magistrate is satisfied in a case referred to in Section 12 (2) that the admission of partner or new partner is bonafide transaction and not a mere cover for sub- let ting, he shall, if any application had been made in that behalf before the admission of such partner or new partner, allot the non-residential building in question afresh to the newly constituted or re-constituted firm; (b) in the case of a residential building under the tenancy of a person who shall be deemed by virtue of Section 12 (3) to have ceased to occupy it by reason of his or any member of his family building or otherwise acquiring in a vacant state or getting vacated another residential building in the same local area, whether that other building is built or acquired or got vacated before or after the date of commencement of the Act, if the District Magistrate is satisfied that the two buildings are occupied by the tenant and a member of his family separately, and that they are separate in messing, the District Magistrate may reallot the residential building deemed to be vacant under Section 12 (4) to the said tenant or to the said member of his family, as the case may be; (c) in the case of a residential building under the tenancy of a person who shall be deemeuby virtue of the proviso to Section 12 (3) to have ceased to occupy it upon the expiration of a period of one year from the date of commencement of the Act by reason of his or any member of his family having built another residential building in the same local area, where that other building was let out at the commencement of the Act and the tenant or the member of his family, as the case may be, has been unsuccessful inspite of his best efforts in securing vacant possession thereof the District Magistrate may postpone the making of allotment order in respect of the building deemed to be vacant under Section 12 (4 ). (7) The power of the District Magistrate under Section 17 (1) to disregard the nomination by the landlord in the event of the District Magistrates' failure to make the allotment order within twenty-one- days from the date of receipt of intimation of vacancy or expected vacancy of a building shall be exercised very sparingly and only when for a public purpose of an urgent nature, the District Magistrate considers it necessary so to do. (8) In making allotment of non-residential buildings, regard shall be had to the following guiding principles which shall not be departed from save for exceptional reasons to be recorded in writing: (a) No allotment shall be made for vend of liquor or any other intoxicant. (b) Performance shall be given to qualified technical personal (such as medical or engineering graduates) who want to engage in self-employment. (c) Amongst persons desiring allotment of a building for business purposes preference shall be given to persons against whom an order has been passed for eviction from a non-residential building under Section 21, not being tenants referred to in Explanation (1) of Section 21 (1), or a decree has been passed in a suit filed with the permission of the District Magistrate under Section 3 of the old Act, and who or members of whose family do not own or hold as tenants any other non-residential building in the same city, municipality, town area or notified area, and to persons not already running a business and who have secured or been assured of securing adequate financial assistance from the Government or the State Financial Corporation or from a banking company as defined in the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 for starting such business. (9) In the case of a building which was never let out before, the District Magistrate shall serve on the landlord a notice asking him within a month of service thereof whether he is willing to throw the building open for letting and if so, to nominate a person in whose favour the allotment may be made and thereupon - (a) if the landlord intimates the District Magistrate within the said period that he does not want to let out the building, it shall not be allotted; (b) if he intimates the District Magistrate within the said period his consent to letting and nominates - person in that behalf, the allotment shall be made in favour of that nominee; (c) If the landlord fails to send any such intimation within the said time, it shall be open to the District Magistrate to allot the building to any person. (10) If the building referred to in sub-rule (9) falls vacant at any time subsequently as a result of the tenant vacating it, the District Magistrate shall, if requested by the landlord, allow him to occupy the same himself. (11) Order of Priorities in allotment of residential buildings (Sections 16 and 34 (8)) - (1) In making allotment of a residential building, the following order of priorities shall be observed: Firstly, for public purposes; Secondly, for accommodating a person against whom an order has been passed for eviction under Section 21, not being a tenant referred to in Explanation (1) to Section 21 (1), or a decree has been passed in a suit filed with the permission of the District Magistrate under Section 3 of the old Act (or such suit or application is pending) and who or members of whose family do not own or hold as tenants any other residential building in the same city municipality, town area or notified area; Thirdly, for accommodating others; and in each of the above categories subject to the provisions of sub-rule (2), the principle "first come, first served" shall be followed. (2) Amongst the priority categories mentioned above, the following principles shall ordinarily be followed, subject to the provisions of sub-rule (3): (a) A building vacated by a Government servant shall, as far as possible, be given to his successor-in- office, if any, or to any other Government servant belonging to the same department; (b) Subject to clause (a) and sub-rule (3), among Government servants, the relative length of stay in station, without suitable accommodation, shall be taken into consideration. (3) In the case of requirement of accommodation for State Government officers belonging to the same department, the priority shall be determined by the head of that department or the principal head of that office, as the case may be. (4) Notwithstanding anything in sub-rules (1), (2) and (3) the District Magistrate may, for adequate and exceptional reasons to be recorded in writing, depart from principle "first come, first served", and make allotment of any building out of turn to any person. (5) Subject to the foregoing sub-rule, it should be ensured that no person shall be allotted a building which carries so little rent that he is able to get a residence on payment of rent which is less than 10 per cent of his salary or other income, after taking into consideration, the house rent allowance allowed by his employer. At the same time where more than one building is available for allotment among two persons belonging to the same priority category the building carrying higher rent should be allotted to the person getting higher salary or other income and the building carrying less rent should be allotted to the person getting less salary or other income. " 6. ABARE look of the above provisions would show that priorities enumerated in Rule 11 are to be applied to only when the question of allotment of a residential building is to be considered and no priority is laid down for the purposes of making order of allotment for non-residential buildings. The revisional Court thus committed a manifest error of law in upholding the order of allotment by applying Rule 11 of the Act. The next question which falls for determination is whether the applications of the petitioners for allotment could be excluded from consideration merely on the ground that the petitioner Dinesh Kumar was found to be an unauthorised occupant in the absence of an allotment order in his favour? The next question which falls for determination is whether the applications of the petitioners for allotment could be excluded from consideration merely on the ground that the petitioner Dinesh Kumar was found to be an unauthorised occupant in the absence of an allotment order in his favour? The Rent Control and Eviction Officer has made a reference to Rule 10 (5) which provides that no building shall ordinarily be allotted to the person or for the purposes specified in clauses (a), (b) and (c) of the sub- rules. Whether by using the word "ordinarily" in the said provision, the Legislature intended to exclude from consideration the application for allotment of an unauthorised occupant? This question thus requires a serious consideration in the present case. It has been held in the case of R. C. Mishra v. Shri Mahendra Thpathi and others, AIR 1977 SC 445 , that no provision is found in the Act or Rules, which disentitles an un authorised occupant to ask for an allotment. 7. THE question what meaning should be given to the word "ordinarily" come up for consideration in the cases of B. C. Dwivedi v. Additional District Judge, 1978 ALR 875 and EC. Jain v. District Judge and others, 1979 (UP) RCC 187. A learned Single Judge of this Court held in those cases that the word "ordinarily" means habitually and not casually. It can not obviously mean "always". In the case of PC. Jain (supra) the shop was allotted in favour of C. P. Sethi, who was in un authorised occupation. Against that order, the out-going tenant as well as another applicant for allotment filed revisions. THE order of allotment was set aside and the case was remanded for fresh consideration. THE writ petition filed by the out-going tenant challenging the order declaring vacancy was dismissed. What is the scope of Rule 10 (5) has been discussed while disposing of the writ petition filed by C. P. Sethi. THE said discussion is to be found from paragraph 13 onwards and it was held that use of the word "ordinarily" indicates that the rule laid down therein is capable of being deviated or departed in a fit case. THE said discussion is to be found from paragraph 13 onwards and it was held that use of the word "ordinarily" indicates that the rule laid down therein is capable of being deviated or departed in a fit case. It was further observed in para graph 14 of the report that each case will have to be considered on merits for holding whether an allotment order should be passed in favour of a person, who has taken unauthorised occupation of a building. No interference was, however, made in the order of remand passed by the District Judge, as in the opinion of the learned Single Judge of this Court, the Rent Control and Eviction Officer while making an order of allotment had not considered the circumstances, which could justify the passing of the allotment order in favour of the unauthorised occupant, C. P. Sethi. 8. IN another decision in the case of Raj Kumar v. 1st Additional District Judge, Allahabad and others, (1988) 2 ARC 35, it was held that clause (d) of Rule 10 (5) of the Rules specifically states that an un authorised occupant, who is in possession of the property with the consent of the landlord, is not covered by this clause and therefore, he will not be debarred from getting his application considered on merits in accordance with law. IN that case it was found as a fact that occupation of the unauthorised occupant was with the con sent of the landlord. A similar view was expressed in the case of Smt. Narendm Kaur v. XHth Additional District Judge, Kanpur Nagar and others, (1992) 1 ARC 243. IN this case it was further held that the object of Rule 10 (5) (d) is to protect the interest of the landlord, otherwise due to pendency of the proceedings for allotment for considerably long time, the premises has to remain vacant causing financial loss to the landlord. There is yet another decision supporting the same view, which was rendered in the case of Ram Autar v. IXth Additional District Judge, Bulandshahr and others, 1992 (2) ARC 567. It was held therein that the word "ordinarily" can have different shades of meaning. . . . . . . . . . . . . . . . It should not be taken to mean "invariably" or "always". It was held therein that the word "ordinarily" can have different shades of meaning. . . . . . . . . . . . . . . . It should not be taken to mean "invariably" or "always". It leaves sufficient margin of discretion with the Appropriate Authority and gives certain amount of elasticity to the rule. I find no good reason to take a view different from the one expressed in the aforesaid decisions. It admits of no doubt that Rule 10 (5) (d) does not apply to a case of an occupant, who is in occupation with the consent of the landlord though for the purposes of Section 12 or Section 31 he may be an unauthorised occupant in the absence of allotment order. Even to a case of an unauthorised occupant, who is in occupation without the consent of the landlord, there is no absolute legal bar which may disentitle him to ask for allotment order in his favour. It is true that if such a person applies for order of allotment, the premises may not ordinarily be allotted in his favour, but that does not mean that his application is not liable to be taken into consideration as not maintainable and in a fit case there could be a deviation or departure from the normal rules and if the facts and circumstances justify, the premises may be allotted even in favour of an unauthorised occupant. 9. IN the present case, though the status of petitioner Dinesh Kumar was that of an unauthorised occupant as no order of allotment had been made in his favour before he came into occupation, but he was certainly entitled to get his application for allotment considered on merits and his claim could not have been rejected by applying mechanically Rule (5) (d) of the Rules merely on the ground that he was an unauthorised occupant be cause the landlord had himself waived his right by accepting him as a tenant in the premises in question. It is implicit in clause (d) of Rule 10 (5) that where the occupation is with the consent of the landlord, this rule will not apply. The expression "without the written consent of the landlord" used in this clause is not insignificant and cannot be ignored as superfluous. It is implicit in clause (d) of Rule 10 (5) that where the occupation is with the consent of the landlord, this rule will not apply. The expression "without the written consent of the landlord" used in this clause is not insignificant and cannot be ignored as superfluous. The Rent Control and Eviction Officer thus committed a manifest error of law in not deciding the application of the petitioner on merits. 10. IT is also note-worthy that so far as petitioner Chandra Pal Varshney is concerned, neither he was an unauthorised occupant nor a person belonging to a class whose claim for allotment was not liable to be considered under the provisions of the Act or Rules. No provision is contained either in the Act or Rules that application for allotment moved by a relation of an unauthorised occupant is not liable to be considered. The Rent Control and Eviction Officer in the present case has thus committed a gross error of law in rejecting the application of Chandra Pal Varshney for allotment merely on the ground that he happened to be the father of Dinesh Kumar, who entered into the shop in question without an order of allotment. This could hardly be a ground in law for rejection of his application. Being unable to put any other interpretation to the provisions of Rule 10 (5) (d), learned Counsel for the respondents argued that in view of the Full Bench decision in Nootan Kumar's case (supra), the status of petitioner Dinesh Kumar is that of an unauthorised occupant and since issue of writ under Article 226 of the Constitution is discretionary and based on equitable considerations, this Court should not interfere as a matter of course to give relief to a person whose hands were soiled with an illegal transaction made with deliberate object of defeating the provisions of law. In Nootan Kumar's case the Full Bench in the ultimate concluded that the tenancy in contravention of Section 13, apart from being punishable under Section 31 of the Act, tentamounts to a mechanism or device meant and evolved by the parties to the agreement to defeat and circumvent the provisions of the Act, hence void. However, in the said decision no question arose for considering the scope of Rule 10 (5) (d) of the Rules. However, in the said decision no question arose for considering the scope of Rule 10 (5) (d) of the Rules. The occupation of a person after 15-7-76 in a premises without an order of allotments undoubtedly unauthorised and the premises becomes vacant and open for allotment or release as the case may be, but no such inference can be drawn from the said decision that the unauthorised occupant has no right to make an application for allotment as there is no absolute bar either in the Act or the Rules disentitling an unauthorised occupant to ask an order of allotment in his favour. Rule 10 (5) (d) of the Rules simply lays down that ordinarily such a person shall not be allotted the disputed accommodation, but then before the rule could be applied to, it must also be shown that the occupation of the un authorised occupant was without the writ ten consent of the landlord. There appears to be no legal bar for the Rent Control and Eviction Officer from taking into consideration the application of allotment moved by a person, whose occupation in law is unauthorised on account of absence of allotment order and where his occupation is with the consent of the landlord, the Rent Control Authority is bound to consider such an application on merits. In the absence of any legal bar either express or implied and in view of the fact that Rule 10 (5) (d) of the Rules could not be attracted to the facts of the present case, a right vested in the petitioner for a consideration of his application for allotment and when such a right has been infringed, the petitioner could certainly approach this Court under Article 226 of the Constitution. 11. IN the petition, the impugned order has also been challenged on the ground that the need of respondent No. 3 for additional accommodation to enlarge his business, is not bonafide and could not be treated to be a public purpose. It would not be appropriate for this Court to make any comments upon this question as the impugned order is liable to be set aside only on the ground that the Rent Control and Eviction Officer declined to take into consideration the claim of the petitioners for allotment of the shop in question by wrongly applying Rule 10 (5) (d) of the Rules. 12. 12. FOR the reasons stated above, both the writ petitions are partly allowed. The order of Rent Control and Eviction Officer dated 14-9-78 declaring vacancy is upheld. However, the order of Rent Control and Eviction Officer dated 19-11-81 making allotment order in favour of respondent No. 3 and the order of revisional Court dated 1-4-82 affirming the said order are quashed. The Rent Control and Eviction Officer is directed to decide the matter of allotment afresh after taking into consideration the applications of the petitioners for allotment, in accordance with law and in the light of the observations made above. He is further directed to decide the said matter within a period of six weeks from the date a certified copy of this order is produced before him. In the circumstances no order as to costs is made. Petitions partly allowed.