Reserved on :- 01.09.2021 Delivered on :- 27.09.2021 Case :- MATTERS UNDER ARTICLE 227 No. - 3043 of 2021 Petitioner :- Anil Kumar Agrawal Respondent :- Saurabh Jain And Another Counsel for Petitioner :- Manish Tandon Counsel for Respondent :- Manas Bhargava
Hon'ble Siddharth,J.
1. Heard Sri Manish Tandon, learned counsel for the petitioner and Sri Manas Bhargava, learned counsel for the respondent no. 1.
2. This petition has been filed under Article 227 of the Constitution of India praying for setting aside the judgement and order dated 08.04.2021 passed by Additional District Judge, Court No. 19, Kanpur Nagar, in Rent Revision No. 40/2015 (Anil Kumar Agrawal Vs. Saurabh Jain and another) and also the orders dated 29.12.2014 and 16.09.2015 passed by Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar in Case No. 16 of 2012 (Guru Prasad Tiwari Vs. Arun Kumar Agrawal).
3. The facts of the case are that respondent no. 1, Saurabh Jain, filed a release application against one Arun Kumar Agrawal, stating that he is the owner of the Shop No. 26/34, Birhana Road, Kanpur Nagar and Arun Kumar Agrawal is the tenant of the shop on the rent of Rs. 726/- per month and carrying out the business of homeopathic medical store and P.C.O. The aforesaid house is about 60 years old and the provisions of The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘U.P. Act No. 13 of 1972’) apply thereto. The respondent no. 1 is doing private job and earning Rs. 4,000/- per month and has family liability of looking after his father, mother, wife and his minor son. He wants to do business in the shop in dispute and has pressing need of the same. He will open shop of toys of children and gift item since he is having degree of B.COM and has worked as salesman of toys of children for four years. The opposite party, Arun Kumar Agrawal, has no need of the same and has occupied the same only for extracting money from him. He can get another shop on rent easily and prayed that the shop in dispute may be released in his favour. The aforesaid application was registered on 06.12.2008 as Rent Case No. 13 of 2008 by the Prescribed Authority/IIIrd Additional Civil Judge (Senior Division), Kanpur Nagar.
4. The aforesaid Rent Case No. 13 of 2008 was dismissed for want of prosecution on 31.10.2009. It was subsequently restored but again dismissed for want of prosecution on 28.01.2014. In the meantime, respondent no. 2, Guru Prasad Tiwari filed an allotment application dated 16.08.2011 praying that the shop in dispute may be allotted in his favour before the Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar. The Rent Control Inspector inspected the shop and found the applicant in the shop. The applicant informed the Rent Control Inspector that earlier his father was owner of the Shop No. 26/34 B-1, Birhana Road, Kanpur Nagar, and because of family problems, he sold the part of House No. 26/34 B-1, Birhana Road, Kanpur to Saurabh Jain, respondent no. 1 in the year 1993-
94. In the aforesaid house below the stores on the ground floor, his cousin, Vinod Kumar Agrawal, used to run a P.C.O., in his partnership. In the firm, Arun Homeo Agency, Arun Kumar Agrawal and Anil Kumar Agrawal, sons of late Murari Lal Gupta, are partners. Vinod Kumar Agrawal had nothing to do with their firm. He was paying rent of Rs. 600/- per month to the respondent no. 1 which is now being paid @ Rs. 1000/- per month. The respondent no. 1 had filed a Rent Control Case No. 13 of 2008 which has been decided on 31.10.2009 in his favour and it has been reopened and is pending only to harass him. Its proceedings have been initiated. His license of running the Arun Homeo Agency has been renewed from 18.12.2008 to 31.12.2013. The petitioner filed his written objection to the report on 30.09.2011 and respondent no. 1 also filed his objection on 19.09.2011. The allotment application was registered as Case No. 16 of 2012 and vide ex-parte order dated 29.12.2014, the Rent Control and Eviction Officer declared the shop in dispute as vacant. The petitioner filed a recall application before the Rent Control and Eviction Officer for recalling the ex-parte order dated 29.12.2014 which was rejected by the order dated 16.09.2015 and simultaneously rejected the recall application of the petitioner too. Against the declaration of vacancy and release order dated 16.09.2015, the petitioner filed Rent Revision No. 40/2015 which was dismissed by the judgement and order dated 08.04.2021 and hence, this writ petition.
5. Counter affidavit has been filed on behalf of the respondent no. 1 wherein it has been stated that after the purchase of part of House No. 26/34-B, Birhana Road, Kanpur Nagar by the respondent no. 1, new number has been allotted by the Nagar Nigam, i.e., 26/34 B-1, Birhana Road, Kanpur Nagar. The boundaries of the properties purchased by the respondent no. 1 have been mentioned in the sale deed. In the license for running the homeopathic medical shop, Arun Kumar Gupta has been shown as active partner and he has also been shown as incharge of the shop. He has submitted that there is no bar under U.P. Act No. 13 of 1972 regarding filing of allotment application during the pendency of release application. During the inspection of shop in dispute by the Rent Control Inspector, the petitioner was found in the shop, who is an unauthorized occupant. After considering the objections of the petitioner, vacancy was declared by a detailed order dated 29.12.2014 passed by Rent Control and Eviction Officer. The petitioner was never tenant of the shop in dispute at any point of time as is clear from the written statement filed by brother of the petitioner and he is occupying the same without any allotment order in violation of Sections 11, 13 and 16 of U.P. Act No. 13 of 1972. Earlier tenant of the shop was Vinod Kumar Agrawal, who used to pay rent to the respondent no. 1 and he has handed over the possession of the shop to brother of the petitioner, namely, Arun Kumar Agrawal. The revisional court has considered all the grounds raised by the petitioner and thereafter, rejected the revision. The petitioner was occupying the shop without any allotment order and was unauthorized occupant of the same. The order of vacancy would not be vitiated only on account of non-service of notice under Rule 8 (2) of the Rules framed under U.P. Act No. 13 of 1972 (hereinafter referred to as the “Rules”).
6. Learned counsel for the petitioner has submitted that :-
(a) Both the courts below completely failed to consider that the shop in dispute was run, prior to the execution of sale deed executed by father of the petitioner in favour of respondent no. 1 on 08.07.1994. Therefore, there was no need of allotment order to be passed in favour of petitioner, being son of the owner of the property.
(b) The drug licensing authority issued drug license in the name of petitioner and his brother, Arun Kumar Gupta, for running shop in the name of “M/s Arun Homeo Agency”, on 05.02.1992, prior to the execution of sale deed and the license was renewed from time to time and remained in force and the business in the name of M/s Arun Homeo Agency was run by the partners Arun Kumar Gupta and petitioner and in any case, if the rent receipts have been issued in the name of Arun Kumar Gupta, it will not change the status of the petitioner.
(c) In the release application u/s 21 (1) (a) of U.P. Act No. 13 of 1972, the landlord/respondent no. 1 categorically pleaded in para-2 that Arun Kumar Agrawal/Gupta is running Homeopathic Medical Store in the shop in dispute, but at later stage, he changed the stance as per allotment application made by the respondent no. 2, stating therein that one Vinod Kumar Agrawal (cousin of petitioner) was tenant and he handed over possession to Arun Kumar Gupta/Agrawal and he transferred possession to the petitioner without there being any lawful allotment in favour of petitioner, which is not permissible in the eyes of law.
(d) Ex-parte proceedings was initiated against the petitioner as no notice under Rule 8 (2) of the Rules was given to the petitioner and inspection was made and the Rent Control Inspector proposed the alleged vacancy to the Rent Control and Eviction Officer with specific words that notices may be issued to the respective parties and the evidence may be called from them.
(e) No notice or summon had ever been issued to the petitioner as required under proviso to Section 16 of U.P. Act No. 13 of 1972 which is quoted hereinbelow :-
16. Allotment and release of vacant building-
(1) Subject to the provisions of this Act, the District Magistrate may and by order-
(a) require the landlord to let any building which is or has, fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order) ; or
(b) release the whole or any part of such building, or any land appurtenant therein, in favour of the landlord (to be called a release order).
[Provided that in the case of a vacancy referred to in sub-section (4) of Section 12, The District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a).] It is necessary to point out that the petitioner had filed supplementary affidavit on 05.08.2021 before the Hon’ble Court wherein he has annexed the summons issued u/s 16 (1), in favour of Arun Kumar Gupta and the publication was also made to this effect and no notice was ever given to the petitioner nor he was made party to the lis before the Rent Control and Eviction Officer and thus, there was clear violation of principles of natural justice and also violation of mandatory requirements mentioned hereinabove.
(f) The factum of not giving notice was also admitted in the release order dated 16.09.2015 as the landlord himself has admitted that notice is required to be given to the petitioner.
(g) Vinod Kumar Agrawal is the cousin of petitioner and his father was his real uncle and was also having share in house in dispute i.e., 26/34-B Birhana Road, as co-sharer with the petitioner and his brother of the propety prior to the sale of house in dispute to the respondent no. 1. Rent receipt filed by the respondent no. 1 in the name of Vinod Kumar Agrawal is procured document just to frame concocted story and it was never proved through said Vinod Kumar Agrawal or by any other evidence.
(h) The provision of Section 3 (g) (Family) of U.P. Act No. 13 of 1972 does not comes into play in the instant case as the father of the petitioner was the owner of the house in dispute and the petitioner along with his brother was continuing in its possession since before the sale of the property (in 1994) and the license in the name of Arun Homeo Agency was issued in the joint name of Anil Kumar Gupta (Agrawal)/petitioner and also in the name of his brother, Arun Kumar Gupta (Agrawal), in the year 1992 and both were running the business from the shop in dispute and the license is still continuing and being renewed from time to time.
(i) Mere issuance of rent receipt in the name of Arun Kumar Gupta does not defeats the claim of petitioner who is also a partner to the business being run by his brother in the name of Arun Homeo Agency on the basis of licence issued by the Drug Licensing Authority.
7. Learned counsel for the respondent no. 1 has submitted that :-
(a) Rent Control Inspector inspected the shop in dispute and submitted his report on 12.10.2011 and the petitioner who is an unauthorized occupant has filed his written objection before the Rent Control Inspector on 30.09.2011 and in his report, all the facts have been mentioned/considered and therefore, it cannot be said that the Rent Control and Eviction Officer has passed an ex-parte order and declared the vacancy vide order dated 29.12.2014. It is further stated that a detailed order has been passed by the Rent Control and Eviction Officer in which everything has been considered which clearly proves that the petitioner is an unauthorized occupant as he was occupying the shop without any order of allotment.
(b) Brother of petitioner has filed his written statement in the Rent Case No. 13 of 2008. Petitioner was not the tenant at any point of time which is very much clear from the written statement filed by the brother of petitioner and the petitioner is occupying the same without any allotment order in his favour which is totally against Sections 11, 13 and 16 of U.P. Act No. 13 of 1972. As per Sections 11, 13 and 16 – Petitioner is unauthorized occupant since he is neither a licensee nor a tenant. Petitioner is occupying the said shop in dispute without paying a single penny to the respondent no. 1 at any point of time after getting the shop in question from his brother i.e., Arun Kumar Agrawal which is very much clear from Annexure No. 11 filed to the petition.
(c) In the order dated 16.09.2015, a specific finding has been recorded by the Rent Control and Eviction Officer. Therefore, the plea which has been taken by the petitioner in the petition is baseless.
(d) The real object of Rule 8 of Rules is to ensure that the proceedings are not taken behind the back of either the landlord or the tenant or other occupants and its underlying object is that proper opportunity of being heard should be given to these persons so that an adverse order is not passed behind their back. This object can be achieved not only by proper intimation to them of the initiation of proceeding with regard to the property in question but also by allowing them to join the issue at a later stage but before any final order is passed. Even if the procedure as laid down is not strictly followed and there is no consequent injury or prejudice caused to the affected party, then a mere irregularity in following the procedure laid down will not vitiate the order. Respondent no. 1 is the landlord of the shop in question and earlier tenant was Vinod Kumar Agrawal who paid the rent to the respondent no. 1 through cheque and the earlier tenant, Vinod Kumar Agrawal, has handed over the possession of the shop to the brother of the petitioner i.e., Arun Kumar Agrawal and the brother of the petitioner started paying the rent to the respondent no. 1 through cheque. It is further submitted that the brother of the petitioner, Arun Kumar Agrawal, has given the possession of the said shop in question to the petitioner without taking consent from the respondent no. 1 and now Arun Kumar Agrawal is residing in Delhi with his family.
(e) The mentioning of provision of Section 3 (g) (family) of U.P. Act No. 13 of 1972 is also an important factor in the present case. Brother is not member of “family” in terms of Section 3 (g) of U.P. Act No. 13 of 1972.
8. After hearing the rival contentions, this Court finds that the submission of the learned counsel for the petitioner that no notice of summon was ever been issued to the petitioner as required under proviso to Section 16 (1) of U.P. Act No. 13 of 1972, deserves consideration. He has submitted that notices were only issued to Arun Kumar Agrawal as per Section 16 (1) of U.P. Act No. 13 of 1972 and publication was also made to this effect in his name. No notice was ever given to the petitioner by Rent Control and Eviction Officer which was in violation of Rule 8 (2) of Rules. Learned counsel for the respondent no. 1 has submitted that notice was given to the petitioner as per Rule 8 and even if there was some irregularity in the same, the petitioner could have joined the proceedings since he was aware with the proceedings which were pending for the allotment and release of the shop in dispute. Learned counsel for the petitioner has himself admitted that notice was issued to his brother, Arun Kumar Agrawal, who handed over the possession of the shop to the petitioner and thereafter, went to reside at Delhi with his family.
9. This Court further finds from the order of Rent Control and Eviction Officer dated 29.12.2014 passed u/s 16 (1) (a) of U.P. Act No. 13 of 1972 that before passing the order of vacancy, notices were not sent to the parties. Thereafter, notices were sent by registered post on 05.08.2014 and finally, after publication of notice in the newspaper, the ex-parte proceedings were initiated by the order dated 12.12.2014 against the parties. Thereafter the order of vacancy dated 29.12.2014 was passed. In the recall application, the petitioner stated that he never received any notice from the Rent Control and Eviction Officer providing him opportunity of hearing before passing the order dated 29.12.2014 when he is admittedly in possession of shop in dispute. However, the order dated 16.09.2015 passed by the Rent Control and Eviction Officer shows that the petitioner after filing the recall application never appeared to press the same. He neither filed any written statement nor appeared for oral arguments. Therefore, the Rent Control and Eviction Officer rejected his recall application accepting the contentions of the respondent no. 1 and simultaneously passed the order of release dated 16.09.2015. Before the revisional court, again the same plea of non-service of notice and denial of opportunity of hearing was taken as ground by the petitioner. A perusal of the grounds of revision shows that the findings recorded by the Rent Control and Eviction Officer regarding service of notice on the petitioner prior to declaration of vacancy and then before the passing of release order, was not specifically challenged. The revisional court however has recorded the finding that notices were issued to respondent no. 1 and brother of the petitioner, namely, Arun Kumar Agrawal. In the report of process server dated 17.11.2011, it was mentioned that the notice sent to Arun Kumar Agrawal was served on his younger brother, Anil Kumar Agrawal, the petitioner. Thereafter, the notice was sent by registered post and then after publication, the proceedings for declaration of vacancy was proceeded further. It is therefore, clear that the petitioner was aware of the proceedings before the Rent Control and Eviction Officer. From the findings of the revisional court, it appears that notices were not directly issued to him but to his brother treating him as a tenant when it was mentioned by the Rent Control Inspector in his report that the petitioner was found in the shop in dispute.
10. Therefore, from the findings of the revisional court, it is clear that the notice under Rule 8 (2) of the Rules were not issued to the petitioner but to his brother, Arun Kumar Agrawal, but he was fully aware of the proceedings u/s 16 (1) (G) of U.P. Act No. 13 of 1972 but deliberately did not participated therein.
11. This Court in the case of Kripa Shankar Gupta Vs. Adarsh Kumar Agrawal and another, passed in WRIT – A No. 35861 of 2016, relied upon by the learned counsel for the respondent has held that order of vacancy would not be vitiated on account of non-service of notice under Rule 8 (2) of the Rules once it is found that the occupant had participated in the vacancy proceedings. Similar is the ratio of the judgement of this Court in the case of Rajendra Singh and others Vs. District Judge, Kanpur and others, ARC 1986 (1) 116; Lachhman Prasad Richariya Vs. 4th Additional District Judge, Hamirpur and others, ARC 1990 (1) 497. The Division Bench judgement in the case of Jeep Industrial Syndicate, Allahabad Vs. Rent Control and Eviction Officer, Allahabad and others, 1982 ARC 585 has also been relied upon wherein this Court held that the rules of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirments and imposing undue burdens.
12. Even if it is accepted that the petitioner and his brother, Arun Kumar Agrawal, were doing business in partnership, then as per Section 24 of the Indian Partnership Act, 1932, notice to a partner, who habitually acts in the business of the firm of any matter relating to the affairs of the firm, operates as notices to the firm, except in the case of a fraud on the firm committed by or with the consent of that partner. In the present case, it is clear that the notice was served on the active partner of the firm, namely, Arun Kumar Agrawal and notice was accepted by the petitioner on behalf of his brother, Arun Kumar Agrawal, which was sent by the Rent Control and Eviction Officer. Therefore, as per Section 24 of the Indian Partnership Act, 1932, the notice was deemed to have been served on the firm and if the petitioner claims himself to be partner of the firm, notice was duly served on him. Therefore the contention of the learned counsel for the petitioner that the notice was not served on the petitioner as per Rule 8 (2) of the Rules is not in accordance with law.
13. The other arguments of the learned counsel for the petitioner regarding his status of co-tenant in shop in dispute, the findings of the courts below regarding transfer of tenancy by Vinod Kumar Agrawal cannot be considered at this stage when he did not adduced evidence in this regard before the courts below to establish factual foundation to sustain his arguments before this Court.
14. In view of the above legal position, the submission of the learned counsel for the petitioner that notice was never served on the petitioner regarding the proceedings in dispute is not in accordance with factual position on record and also the legal position in view of the Section 24 of the Indian Partnership Act, 1932.
15. The judgement and order impugned in this petition are hereby confirmed.
16. The petition fails and is accordingly dismissed.
17. However considering the fact that tenant-petitioner is old and is a tenant since before 1972, he is granted one year's time to vacate the premises, subject to giving undertaking before the Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar within two weeks that he will deliver the peaceful and vacant possession of the shop in dispute on or before 26.09.2022. He shall also pay the rent which he is paying now during the aforesaid period of one year by 7th day of every month.
18. In case of default in compliance of any of the above conditions, the direction of one year of occupation of disputed shop in favour of the tenant-petitioner shall stand vacated and the landlord-respondent no. 1 would be free to execute the order passed by the Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar in accordance with law.
Order Date :- 27.09.2021 KS