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2000 DIGILAW 350 (ALL)

NITIN KUMAR JAIN v. DISTRICT JUDGE, MAINPURI

2000-02-28

SUDHIR NARAIN

body2000
SUDHIR NARAIN, J. ( 1 ) THIS writ petition is directed against the allotment order dated 19. 9. 1998 passed by Rent control and Eviction Officer, Mainpuri, respondent No. 2, and the order for delivery of possession passed in pursuance to the said allotment order. ( 2 ) THE factual matrix of the case is that the shop in question belongs to one Nem Kumar Jain. He died leaving behind him four sons and four daughters. Deependra Kumar Jain is one of his sons and the petitioners are his sons. They alleged that their grandfather, Nem Kumar Jain, had executed a Will in their favour on 17. 10. 1998 and, therefore, they were owners of the shop in question. The petitioners version is that they were carrying on business of soaps, biscuits, etc. under the name and style of M/s. Raja Enterprises since the year, 1989 in the disputed shop. Petitioner No. 2, Vineet Kumar Jain, was carrying on business of manufacturing cooler body under the name and style of M/s. V. K. Industries from the shop in question. It was registered with the Industry Department as small-scale industry w. e. f. 13. 3. 1992. ( 3 ) RESPONDENT No. 3 filed an application for allotment of the disputed shop on 24. 6. 1994 before the Rent Control and Eviction Officer with the allegations that one Anil Kumar was the tenant of the disputed shop and he vacated it. In the application, he had shown the name of Sri Deependra kumar Jain, father of the petitioners, as owner of the property. The Rent Control and Eviction officer directed the Rent Control Inspector to submit a report. The Inspector submitted a report on 3. 7. 1994 stating that he found that the shop was locked. He was informed by two witnesses, namely, Keshav Ji Agrawal and Bishan Lal that one Anil Kumar Jain was the tenant but he was not occupying for the last 6 months and he had left no goods in the shop, and that it was locked by Deependra Kumar Jain, the owner of the property. ( 4 ) DEEPENDRA Kumar Jain died objection on 9. 9. 1994 stating that the disputed accommodation was never under the tenancy of Anil Kumar Jain. The petitioners were the owners of the shop in question and, in fact. they were carrying on business of sate of soaps, detergents, biscuits etc. ( 4 ) DEEPENDRA Kumar Jain died objection on 9. 9. 1994 stating that the disputed accommodation was never under the tenancy of Anil Kumar Jain. The petitioners were the owners of the shop in question and, in fact. they were carrying on business of sate of soaps, detergents, biscuits etc. Their shop was registered under the Shops and Commercial Establishment Act, The business has been registered as Rajendra Enterprises and V. K. Industries. Keshav Agrawal and Bishan Lal have colluded with respondent No. 3 to usurp the shop as they have shops adjoining the disputed shop. The petitioner No. 1 also filed affidavit in support of objection. The petitioners also filed separate objections on 23. 9. 1994. On 14. 7. 1995 they filed three applications before respondent no. 1. The first application was filed for calling a fresh report from the Rent Control Inspector, the second was objection to the report of the Rent Control Inspector dated 2. 7. 1994, and the third was to summon the record of Suit No. 28 of 1990. They also filed documents in support of their objection. ( 5 ) RESPONDENT No. 3 filed an application before respondent No. 2 for deletion of name of deependra Kumar Jain, who was shown earlier by him as the owner and landlord of the property and to implead respondent No. 4, a receiver appointed by the Court in Suit No. 237 of 1990. The rent Control and Eviction Officer deleted the name of Deependra Kumar Jain, respondent No. 5, and impleaded the name of receiver, respondent No. 4 without any notice to respondent No. 5. Respondent No. 4 filed a written statement on 2. 9. 1998 stating that he was appointed as receiver by the civil court and as the disputed accommodation was vacant, it may be allotted to respondent No. 3 or to such other person as respondent No. 2 may consider appropriate for allotment and he has no objection to any allotment. Respondent No. 2 on 19. 9. 1998 passed the following order declaring the vacancy :. . (VERNACULAR MATTER OMMITED ). . ( 6 ) ON 3. 10. 1998 he passed the allotment order in favour of respondent No. 3 and directed to issue form D asking officer-in-charge of police station to obtain possession from the receiver, respondent No. 4 and deliver the same to respondent No. 3. . (VERNACULAR MATTER OMMITED ). . ( 6 ) ON 3. 10. 1998 he passed the allotment order in favour of respondent No. 3 and directed to issue form D asking officer-in-charge of police station to obtain possession from the receiver, respondent No. 4 and deliver the same to respondent No. 3. The petitioners, on coming to know of the allotment order, filed an application before respondent No. 2 to stay proceedings for delivery of possession as the entire proceedings were collusive. Respondent No. 2 is alleged to have passed the order staying further proceedings. Respondent No. 3, however, managed to take possession of the property on 30. 10. 1998. ( 7 ) THE core question is : Whether respondent No. 2 passed valid allotment order and possession of the disputed shop was delivered to him in accordance with law. ( 8 ) THE Rent Control and Eviction Officer gets jurisdiction to pass allotment order under Section 16 (1) (a) of U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act. 1972 (in short, the Act) when the building has fallen vacant or is about to fall vacant. The vacancy may be factual, as provided under Section 15 of the Act, or, deemed vacancy, as contemplated under section 12 of the Act. The District Magistrate/rent Control and Eviction Officer is to determine as to who was occupying the disputed premises and in what manner it has fallen vacant or is likely to fall vacant. ( 9 ) THE version of respondent No. 3 was that one Anil Kumar was occupying the disputed shop as tenant. Respondent No. 2 directed the Rent Control Inspector to make a local inspection and submit report. The Rent Control Inspector is alleged to have made a local inspection of the disputed shop. He was informed by two neighbours, who had adjoining shops, that one Anil kumar was the tenant of the disputed shop but he removed his goods from the shop and it was in the lock and key of Deependra Kumar Jain, father of the petitioners, who was its owner. The rent Control and Eviction Inspector found that the disputed shop was locked. There is nothing to show that the Rent Control Inspector, before making local inspection, had given a notice to deependra Kumar Jain that he would make the local inspection. The rent Control and Eviction Inspector found that the disputed shop was locked. There is nothing to show that the Rent Control Inspector, before making local inspection, had given a notice to deependra Kumar Jain that he would make the local inspection. Sub-rule (2) of Rule 8 of the rules framed under the Act provides that the inspection of a building, so far as possible, shall be made in presence of the landlord and the tenant or any other occupant. Respondent No. 3 in his own application had indicated that Deependra Kumar Jain was the landlord. It was his duty to intimate him in regard to inspection which he was to make on the spot. The shop was found locked. He could never ascertain whether there were any goods in the shop in question or not. The Inspector had submitted report that he was informed that one Anil Kumar was the tenant. There was no material evidence to show that Anil Kumar was ever tenant of the disputed shop deependra Kumar Jain had filed an objection on the 9th September. 1994, stating that Anil kumar was never his tenant. The petitioners also filed a separate objection on 23rd September, 1994, that Anil Kumar was never the tenant of the disputed shop and, in fact, the petitioners were occupying the disputed shop and were carrying on business. They were carrying on industries in the name and style of M/s. Raja Enterprises since the year 1989 and the shop in dispute was also registered under the Shops and Commercial Establishment Act. Petitioner No. 2 was carrying on business in the name and style of M/s. V. K. Industries and it was registered with the Industries department as a small scale industry w. e. f. 13. 3. 1992. The petitioners had also filed three applications, first, for calling a fresh report from the Rent Control Inspector, the second was objection to the report of the Inspector dated 2. 7. 1994, and the third was for summoning the record of case number 28 of 1998. The Rent Control and Eviction Officer, declared the vacancy, without recording any finding as to and whether he had vacated the shop in question. 7. 1994, and the third was for summoning the record of case number 28 of 1998. The Rent Control and Eviction Officer, declared the vacancy, without recording any finding as to and whether he had vacated the shop in question. ( 10 ) LEARNED counsel for the respondent contended that on the date of hearing of the objection on behalf of petitioners, none had appeared and, in absence of any one pressing the objection, the rent Control and Eviction Officer was not required to consider their objections on merits and record a finding. ( 11 ) IT is incumbent upon the Rent Control and Eviction Officer, before declaring vacancy, to enquire as to whether the tenant has vacated the disputed accommodation when the application for its allotment/release is filed. There must be some material evidence to come to the conclusion that here was a tenant and, secondly, that he had vacated it. There was no material evidence before the Rent Control and Eviction Officer that Anil Kumar was the tenant of the disputed shop. Anil Kumar, the alleged tenant, was neither recorded in the Municipal record nor there was any other material to show that he was the tenant. The Rent Control Inspector had obtained statements of the two witnesses, but they had not filed any affidavit before the Rent Control and eviction Officer that Anil Kumar was the tenant Their statements, which were made by them before the Rent Control Inspector, cannot form basis in regard to the determination as to who was the tenant unless those persons who had made statements before the Rent Control Inspector submit material evidence along with an affidavit before the Rent Control and Eviction Officer that the person named by him was the tenant of the disputed shop. ( 12 ) THE Rent Control Inspector had submitted the report without following the procedure prescribed under sub-rule (8) of Rule 2 of the Rules framed under the Act, inasmuch as no notice was given to Deependra Kumar Jain who was described as landlord by respondent No. 3. The rent Control Inspector was also informed by the witnesses that he was the landlord. Moreover, the petitioners as well as Deependra Kumar Jain had filed objections against the report of the inspector. The rent Control Inspector was also informed by the witnesses that he was the landlord. Moreover, the petitioners as well as Deependra Kumar Jain had filed objections against the report of the inspector. It was the duty of the Rent Control and Eviction Officer to have considered the correctness of the report of the Rent Control Inspector keeping in view the provision of sub-rule (2) of the Rules framed under the Act. ( 13 ) THE contention of the learned counsel for the respondent No. 3 is that respondent No. 4 was appointed as a receiver by the Court in respect of the disputed shop, and he had submitted a written statement before the Rent Control and Eviction Officer admitting therein that the disputed shop is vacant and it may be allotted to anyone and as there was no objection by him, it could have been allotted to any one. Respondent No. 3 had filed application for allotment indicating that Deependra Kumar Jain, is the landlord. He subsequently filed an application on 16. 5. 1998 that the name of Deependra Kumar Jain be deleted and in his place respondent No. 4 be substituted as the Court had appointed him receiver in respect of the disputed shop. The petitioners have filed the order passed by the Court appointing him as the receiver. ( 14 ) THE petitioners had filed Suit No. 237 of 1990 in the Court of Civil Judge, Mainpuri, against dr. Ashok Kumar Jain, their uncle and cousins for injunction restraining them from interfering in raising constructions, realising rent from the tenant or evicting them by force in respect of the property mentioned in the Schedule of the plaint. They had given the particulars of the properties, but the disputed shop was not shown as the subject-matter of the suit. The petitioners, during the pendency of the suit, filed as application for appointment of receiver, a copy of which has been annexed as CA 4 to the counter-affidavit. The petitioner prayed that receiver be appointed to manage the property in accordance with the directions of the Court, and, secondly, to realise the rent from the tenants. The details of the property were given in the application. This application did not mention the property in dispute. The petitioner prayed that receiver be appointed to manage the property in accordance with the directions of the Court, and, secondly, to realise the rent from the tenants. The details of the property were given in the application. This application did not mention the property in dispute. The Court passed the following order on the application for appointment of receiver : "counsel for parties agree that the application be allowed and Sri Ram Mohan Johari Advocate be appointed receiver for realising rent from tenants of various shops and houses in suit. He shall deposit rent after collection. He shall open account in the name of receiver and submit yearly account in the Court and can spend any amount after obtaining prior permission of the Court necessary for upkeep and maintenance of shops. He shall get 10% of the collected amount as fee which can be withdrawn from the account so opened with permission of the Court. Sd. Illegible 27. 7. 1994. " ( 15 ) THIS order clearly indicates that respondent No. 4 was appointed only for the purpose of realising rent from the tenants of various shops and houses in the suit and was directed to deposit the rent in account to be opened in the bank after collection. There was no order by the Court to let out or give any permission in respect of letting out any accommodation. Secondly, the disputed shop was not subject- matter of the suit. ( 16 ) RESPONDENT No. 3 had filed an application for deletion of the name of Deependra Kumar Jain before the Rent Control and Eviction Officer who had already filed an objection stating that there was the disputed shop and was not vacant and Anil Kumar Jain was never its tenant. Respondent No. 2 without issuing any notice to him and to the petitioners who had filed objection to the allotment application filed by respondent No. 3 allowed the application for substituting respondent No. 4. Respondent No. 4 also collusively stated that he has been appointed as receiver by the Court and the shop in question was vacant and may be allotted to respondent No. 3, in fact, he was never appointed receiver in respect of the shop in question and, secondly, he was never permitted to manage this property or to contest or compromise any matter in relation to any property. The admission of respondent No. 4 in respect of vacancy was hardly relevant. He had also not referred to any material evidence on the basis of which he admitted that the shop in question was vacated by Anil Kumar as a tenant, in these circumstances, the allotment order passed by respondent No. 2 cannot be legally supported. It is manifestly illegal in contravention of the provisions of the Act and the Rules framed thereunder. ( 17 ) THE second question is in regard to the delivery of possession of the disputed shop to respondent No. 3 after the allotment order was passed in his favour. It was incumbent upon respondent No. 2 to have issued Form C before Form-D was issued, as prescribed under the rules framed. It has been held in cases of Jai Prakash. 1995 (1) ARC 476, Smt. Chetan Anand goel v. Rent Control and Eviction Officer, 1995 (1) ARC 514 and Mohan Lal Mehra u. State of u. P. , 1995 (1) ARC 553, that the allottee can take possession only in accordance with Rule 14, which provides that an order in Form C shall be served upon the person found in the unauthorised occupation of the building directing him to vacate the same. Admittedly, respondent No. 2 did not issue any Form-C. Respondent No. 4 had never taken possession of the shop in question. The Rent Control Inspector had submitted a report dated 3. 7. 1994 indicating that the shop was found locked and its key was with Deependra Kumar Jain, father of the petitioners. The local witnesses had made the statement that Anil Kumar had removed his goods from the disputed shop. The police delivered the possession of the disputed shop to respondent no. 3 and possession of the goods found in the shop and was given in the supurdagi of one keshav Ji Agrawal on 30. 10. 1998 who is alleged to have a shop adjoining to the disputed shop. The report of the police giving details of property has been annexed as Annexure-12 to the writ petition. This clearly shows that-the goods were there in the shop in question. Keshav Ji himself had given statement before the Rent Control Inspector that tenant had removed his goods but it could not be explained as to how the goods were there and who was the owner of the goods. This clearly shows that-the goods were there in the shop in question. Keshav Ji himself had given statement before the Rent Control Inspector that tenant had removed his goods but it could not be explained as to how the goods were there and who was the owner of the goods. The version of the petitioners was that they were carrying on the business of sale of detergent powders, salts, biscuits, enamel paints etc. in the name and style of Raja Enterprises. It was registered under the Shops and Commercial Establishment Act. The petitioner No. 2 was carrying on business of manufacturing cooler body under the name and style of M/s. V. K. Industries and such industry was registered with the Industry department as a small-scale industry w. e. f. 13. 3. 1992. The respondent No. 4 was never appointed as receiver in respect of this shop nor he was put in its possession. The only inference from the evidence is that the petitioners were in possession of the disputed shop and the goods belonged to them. As the petitioners had been dispossessed, they are entitled to get the possession restored to them after the allotment order is set aside. ( 18 ) IN view of the above discussion, the writ petition is allowed with costs. The impugned order declaring vacancy dated 19. 9. 1998, the allotment order dated 3. 10. 1998 and the subsequent proceedings are hereby quashed. Respondent No. 3 is directed to hand over possession of the disputed shop to the petitioners within one week. The Superintendent of Police, Mainpuri, is also directed to see that the petitioners are handed over possession within a week from the date of production of the certified copy of this order before him. It is, however, made clear that if the defendants in Suit No. 237 of 1990 raise an objection in regard to the possession of the disputed shop. It will be open to the Court concerned to pass an appropriate order which may be filed by any of the parties in the suit by the Court. .