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2003 DIGILAW 2306 (ALL)

Ram Sumer v. Ist A. D. J.

2003-09-26

S.U.KHAN

body2003
JUDGMENT : S.U. Khan, J. This writ petition arises out of release/allotment proceedings u/s 16 of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act). The Rent Control and Eviction Officer (for short R.C. and E.O.) allotted the house in dispute to the Petitioner on 16.5.1983 and released the same after three days i.e., on 19.5.1983 to landlord-Respondent No. 2 (since deceased and survived by L.Rs. ). Thereafter both the parties filed review applications u/s 16(5) of the Act. Petitioner-allotee sought cancellation of release order while landlord-Respondent No. 2 sought cancellation of allotment order in favour of Petitioner. R.C. and E.O./A.C.M. II, Kanpur by order dated 27.10.1984 passed in Rent Case No. 1076 of 1980 and 58 of 1983 regarding premises No. 51/56A old, New 51/99-103 decided the matter in favour of allotee-Petitioner and held that the landlord was not entitled to release after passing of the allotment order. However, a minor relief was granted to the landlord by releasing a small portion. Landlord filed two revisions against the said order of R.C. and E.O. dated 27.10.1984, i.e., Rent Revision No. 296 of 1984 and Rent Revision No. 297 of 1984 respectively. Ist Additional District Judge, Kanpur, allowed both the revisions by his judgment dated order dated 8.3.1991 and cancelled the allotment order in favour of the Petitioner as well as that part of the order dated 27.10.1984 through which earlier release order passed in favour of landlord had been modified. From the perusal of Annexure-2, which is, the order of R.C. and E.O. dated 27.10.1984, passed on review application of both the parties, it is clear that the allotment application was made on the ground that accommodation was likely to fall vacant. The order dated 27.10.1984, passed by S. S. Sengar, A.C.M. II/R.C. and E.O., Kanpur, is nothing but a mockery of law. In the said order, it is stated that landlord concealed the fact that his release application was pending when allotment order was passed as in case he had intimated the R.C. and E.O. about the pendency of release application, then the Petitioner-applicant would have contested the release application. An applicant for allotment has got absolutely no right to contest the release application. In any case, release application must have been in the same file in which allotment application was placed, hence there was absolutely no question of concealment of the said fact. An applicant for allotment has got absolutely no right to contest the release application. In any case, release application must have been in the same file in which allotment application was placed, hence there was absolutely no question of concealment of the said fact. It is clearly a case of collusion between R.C. and E.O. and the allotee. R.C. and E.O. deliberately did not refer to the pending release application in the allotment order as otherwise the allotment order on the face of it would have appeared to be without jurisdiction and result of collusion. While considering allotment application, the first thing which is to be seen by R.C. and E.O. is as to whether there is any release application available in the file or not. R.C. and E.O. in his order held that the allotee was in possession, hence landlord must be held to be aware that the building had been allotted to the Petitioner (since deceased and survived by L.Rs.). The relevant portion of the order by R.C. and E.O. Sri S. S. Sengal A.C.M. II dated 27.10.1984 is quoted below: “In all fairness, he was expected to contest the allotment proceedings saying that the release application is pending, but no objection has been filed, though he has knowledge of occupation of Ram Sumer, as will be evident from the application of landlord u/s 16(5) filed on 25.5.1983 only after six days of the release order dated 19.5.1983 in which he specifically desired possession to be delivered to him from Ram Sumer and stating that the tenant passed illegal possession to Ram Sumer. This shows that during the pendency of the release petition, he had knowledge of occupation of Ram Sumer, but he deliberately has not impleaded him to avoid contest.” 2. The R.C. and E.O. was aware that Ram Sumer was in illegal occupation, still the house was allotted to him. In any case, by virtue of Rule 14, if the building is allotted in anticipation of vacancy, possession cannot be delivered without holding an enquiry that it had fallen vacant. In this regard, reference may be made to a recent authority of Uttaranchal High Court interpreting the said Rule in 2003 (2) ARC 272. 3. Copy of inspection report by Rent Control Inspector dated 11.4.1983 is annexed as Annexure-C.A. 1. In this regard, reference may be made to a recent authority of Uttaranchal High Court interpreting the said Rule in 2003 (2) ARC 272. 3. Copy of inspection report by Rent Control Inspector dated 11.4.1983 is annexed as Annexure-C.A. 1. In para 3 thereof, it is mentioned that tenant expressed the intention of vacating the premises in near future. In para 1 of the report, it is mentioned that he was told that Ram Prasad and others were landlord who could not be contacted at the time of inspection. It may be mentioned that at the relevant time, it was not Ram Prasad but his father Dhani Ram who was the landlord. In any case, from the report, it is clear that no advance notice before inspection was given. This fact itself vitiated the entire proceedings. In the order passed by R.C. and E.O., it was mentioned that the vacancy was notified on 11.4.1984. From the record, it is quite clear that no notice was issued before notifying the vacancy and that there is no order declaring the vacancy. From the said order, it appears that after notifying the vacancy on 11.4.1984, notice was issued to Ram Prasad which is alleged to have been served upon him. In my opinion, the entire proceeding of allotment was vitiated on the following grounds: (a) No notice before inspection was issued to the landlord. (b) No order declaring vacancy was passed. (c) No notice was issued to the landlord before notifying the vacancy. (d) After notifying the vacancy notice was issued to the son of the landlord treating him to be the landlord and not to the landlord. (e) No notice was issued to the out-going tenant. (f) No order was passed indicating the satisfaction of R.C. and E.O. that the building was likely to fall vacant. (g) Building was allotted to Ram Sumer who was rank trespasser. (h) Allotment order was passed without disposing of the release application in violation of Rule 13 (4). (i) No enquiry whether building had actually fallen vacant or not after passing the allotment order was held by R.C. and E.O. as required by Rule 14. (j) While deciding question of release through order dated 27.10.1984 passed on review applications of both the parties Petitioner-applicant (allotee) was permitted to contest and his need was taken into consideration. (i) No enquiry whether building had actually fallen vacant or not after passing the allotment order was held by R.C. and E.O. as required by Rule 14. (j) While deciding question of release through order dated 27.10.1984 passed on review applications of both the parties Petitioner-applicant (allotee) was permitted to contest and his need was taken into consideration. (k) In the order dated 27.10.1984 one small room was released to landlord and the bigger room was not released and was permitted to be retained by Petitioner applicant for allotment on the ground that there was likelihood of misuse of the same by the landlord. (It is not understandable as to how a landlord may misuse his own accommodation and the tenant may only use the accommodation allotted to him). 4. Accordingly, it is held that the allotment order dated 16.5.1983 in favour of the Petitioner was wholly void ab initio. The order passed by R.C. and E.O. dated 27.10.1984 to the extent it was in favour of allotee and against the landlord was also illegal and was rightly set aside by the revisional court. 5. The writ petition is dismissed. R.C. and E.O. is directed to put the Respondents in possession within one month from the date of production of a certified copy of this order before him failing which strictures may be passed against him also like his predecessor Shri S. S. Sengar. 6. The possession of the Petitioner has been held to be absolutely illegal, hence exemplary costs in the nature of damages are imposed upon the Petitioner at the rate of Rs. 500 per month since the date of allotment in his favour, i.e., 16.5.1983 till the date on which possession is delivered to the landlord. However, in case Petitioner willingly hands over possession of the property in dispute to the Respondents within a month from today, then he would be liable to pay only half of the cost as aforesaid. 7. Before parting with the case, it is essential to take notice of utter misuse of the provisions of Section 16 particularly in big cities with Kanpur topping the list. The Court in order to put a check on the said misuse in Jagdish v. District Judge, Kanpur Nagar and Ors. 7. Before parting with the case, it is essential to take notice of utter misuse of the provisions of Section 16 particularly in big cities with Kanpur topping the list. The Court in order to put a check on the said misuse in Jagdish v. District Judge, Kanpur Nagar and Ors. (decided by Hon'ble A. K. Yog, J.) 2002 (1) ARC 1927, directed that in every case vacancy must always be published in two newspapers of repute having wide circulation in the concerned city/district before proceeding with allotment/release proceedings u/s 16 of the Act in future (para 20). The reason for giving this general direction was mentioned in para 17 of the said authority which is quoted below: “At this juncture Court takes note of the fact that the existing provisions of the Act declaring vacancy have failed to achieve the desired object and publication on notice board of the office Rent Control and Eviction Officer is an eye wash entering in itself pitfalls to be exploited to ensure that concerned have no notice of the vacancy.” 8. A similar direction is called for in the cases of “likely vacancy or actual vacancy”. There is a provision u/s 16 that before declaring a deemed vacancy, notice must be issued to the landlord and the occupant. However, in case of actual vacancy or likely vacancy, no notices are issued and the vacancy is only notified. This provision is being readily misused for passing possession by the tenant to another person after taking pagri. Some times, this provision is misused to defeat the decree of eviction passed against tenant. Tenant against whom decree for eviction has been passed delivers possession to any of his near persons and intimates the R.C. and E.O. that he is likely to vacate and R.C. and E.O. without issuing notice to the landlord and without passing any order declaring vacancy, just notifies the vacancy and allots the same to the person who has illegally been inducted by tenant just after three days of notifying vacancy as normally he is the only applicant. By virtue of Rule 14, possession cannot be delivered to allotee in case of likely vacancy without holding an enquiry regarding actual vacancy. By virtue of Rule 14, possession cannot be delivered to allotee in case of likely vacancy without holding an enquiry regarding actual vacancy. If the allotee has illegally been inducted by the tenant as aforesaid and the building is allotted on the ground of likely vacancy, stage for holding enquiry to determine actual vacancy under Rule 14 never comes. The allotee already being in possession does not apply for delivery of possession, he simply intimates the R.C. and E.O. that he has obtained possession. It has been held in 1983 (2) ARC 9, that mere passing of ejectment decree does not render the building about to fall vacant. So long as the executing Court has not issued a warrant for delivery of possession, it could not be said that the accommodation was about to fall vacant and till then, the District Magistrate did not have jurisdiction to pass an order of allotment.” Unless notice is issued to the landlord, the R.C. and E.O. cannot hold whether decree for ejectment of the tenant has been passed or not and even if passed, whether warrant for delivery of possession has been issued in execution. 9. There is no reason as to why the said enquiry cannot be made before treating/declaring the building to be likely to fall vacant. It is needless to add that at the stage of the enquiry, it is most essential to hear the landlord. It is, therefore, directed that whenever an application is filed for allotment/release on the ground of building being actually vacant or likely to fall vacant vacancy must not be declared/notified without holding an enquiry and passing reasoned order after hearing the landlord and the occupant.