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Bhagwat Saran Gupta, Advocate vs Rent Control And Eviction ...

High Court Of Judicature at Allahabad|30 January, 2002


1. Heard Sri Rajesh Tandon, learned senior advocate appearing on behalf of Bhagwat Saran Gupta. petitioner and Sri Shesh Kumar, learned counsel appearing on behalf of contesting respondent.
2. Learned counsel for the parties submit that they desire to argue the case as per original pleadings. Supplementary counter-affidavit and supplementary rejoinder-affidavit may be ignored and they shall not be treated as part of record.
3. Accordingly, the case is being decided on the basis of petition as the counter and rejoinder-affidavits filed therein.
4. Bhagwat Saran Gupta, petitioner is tenant of certain accommodation having his tenancy in the certain premises mentioned in the release application under Section 21(1)(9) of the Act being P.A. Case No. 39 of 1999. Sri Narendra Kumar Sharma, respondent No. 2 has filed an application for allotment of the said accommodation, which was in the tenancy of the petitioner, on the ground that the petitioner has constructed his own house, a copy of which is Annexure-2 to the petition. Respondent Nos. 3, 4 and 5 (Smt. Meena Goyal, Smt. Manju Goyal and Smt. Mecra Singhal) are the land-ladles. Respondent Nos. 6 and 7 (Virendra Kumar and Smt. Krishan Rastogi) are previous landlords. Sri Narendra Kumar Sharma (respondent No. 2) has made the application for allotment of the said accommodation being prospective allottee. Sri Narendra Kumar Sharma has not put in appearance inspite of notice. Similarly, respondent Nos. 6 and 7, previous landlords have also not put in appearance inspite of notice. Thus, this petition is being contested by respondent Nos. 3, 4 and 5 by filing their counter-affidavit. Application for allotment having been filed before the concerned authority, the concerned Rent Control and Eviction Officer directed Rent Control Inspector to submit his Inspection report, as required under Rule 8 of the Rules framed under the Act. The Rent Control Inspector submitted his report dated 17.11.1999, a copy of which is Annexure-3 to the petition. It has come on record that no notice was given by Rent Control Inspector to the occupant, namely, Bhagwat Saran Gupta, petitioner who happened to be a tenant in the said accommodation. After receiving report from the inspector, the Delegated Authority appears to have given notice to the concerns including petitioner being occupant. In pursuant to the said notice, petitioner filed his objection supported by his own affidavit dated 8.2.2000 (Annexure-4 to the petition). In the said objection, tenant occupant confined himself by raising objection to the effect that no notice was given to him, before the Inspector went for spot inspection and that the inspection was done by the Rent Control Inspector in collusion with the prospective allottee, who happened to be a puppet of the landlord. It is not the case of the petitioner that he had filed any other objection. The said application and the affidavit have no averment whatsoever, a copy of which is Annexure-4 to the petition. In the said objection, it is not contended that the tenant was not in possession of the Rent Control Inspector's report and, therefore, he was handicapped in filing objection or that he had no knowledge of the contents of the said report, which was submitted by the Rent Control Inspector behind his back without giving notice to him. The Rent Control and Eviction Officer/respondent No. 1 vide his judgment and order dated 15.2.2000 (Annexure-5 to the petition), rejected the application of the petitioner dated, 8.2.2000, Annexure-4 to the petition, and on the other hand he simultaneously declared vacancy with respect to the accommodation in question relying upon the fact mentioned in the Inspector's report made on the basis of information received from two persons in the locality namely, Sarvesh Chandra and Sri Ram Nath, who had informed the Inspector that the tenant-occupant had constructed his own house No. 27A, Lajpatnagar, Moradabad, wherein he was living for last six years.
5. Learned counsel for the petitioner submitted that mandatory provisions of Rule 8 (2) of the Rules require mandatorily notice to be given to the occupant not being satisfied in the instant case, entire proceedings stand vitiated.
6. Learned counsel for the contesting respondent, however, argued that it is not enough to show that the requirement of notice required mandatorily under the statutory and relevant rules, namely. Rule 8 (2) of the Rules not enough and the petitioner has to further demonstrate the prejudice caused to him. In order to ascertain force in the respective submissions, it will be noted that the Rent Control and Eviction Officer has referred to the aforesaid application and affidavit dated 8.2.2000 (Annexure-4 to the petition). The said order nowhere mentions that the said Rent Control and Eviction Officer had required the tenant occupant to file objection against vacancy so as to make aware and conscious the said occupant-tenant to lead evidence and file his objection on merit against the report of the Rent Control Inspector. Further the impugned order declaring vacancy, shows that the said authority has referred to the copy of house tax assessment of the said house at Lajpat Nagar, Moradabad allegedly belonging to the petitioner tenant. Again the said order does not show that when this evidence was filed on behalf of the landlord and whether the tenant occupant was given due opportunity to rebut the same, approximately being the difference of six days between the date of the said objection dated 8.2.2000 and the impugned order dated 15.2,2000, declaring vacancy. None of the counsels are in a position to give relevant details and information to throw light on these various relevant aspects.
7. The mere fact that petitioner had filed an application and affidavit dated 8.2.2000, complaining of Rent Control Inspector regarding the violation of Rule 8 (2) of the Rules and procurement of report collusively through Rent Control Inspector behind his back, cannot be said to be adequate and sufficient. Notice to the occupant to file objection before declaration of vacancy is contemplated under Rule 8 (2) of the Rules.
8. This Court shall, however, bring on record the fact that the landlord had attempted to bring on record certain new facts as an afterthought by making certain assertions for the first time in the writ petition, namely, he has three sons, one of his sons is engaged in plastic business carrying on his business from the accommodation in dispute and the other son has also got his office being the office of Finger Prints and Handwriting Expert of the Police Department. Learned counsel for the petitioner, however, failed to file any document whatsoever in support of the above statement. It has also not been pleaded that the said facts were stated by the occupant in his review petition, which was subsequently not withdrawn and was dismissed during the pendency of the petition, nor any such fact was mentioned in his application and affidavit dated 8.2.2000, The averments of this fact are clearly an after thought. In order to wriggle out the admitted position, that house was used for residential purposes. At this juncture, it may be noted that tenant petitioner had filed original suit also after passing of the impugned order declaring vacancy and he claimed himself to be a trespasser and went to the extent of the title by adverse possession. On the other hand tenant petitioner also filed a review petition against the impugned order, a copy of which is Annexure-5 to the petition. A copy of the plaint has been filed as Annexure-C.A. 3 to the said counter-affidavit. The averments contained in para 5 of the counter-affidavit have not been denied. In para 5 of the rejoinder-affidavit, it is stated that the plaintiff of the suit has filed an application for withdrawal of the suit. It is also stated in the rejoinder-affidavit that review petition filed by the petitioner-tenant against the order of declaring vacancy (subject-matter of challenge in the present petition) has also been withdrawn and was not dismissed by filing an application. The above facts are borne out from the order dated 19.5.2000, whereby the Rent Control and Eviction Officer has allowed the release application in favour of the landlord, a copy of the said order has been filed as Annexure-R.A. 2 to the rejoinder-affidavit. It is certainly a matter of record but the aforesaid relevant facts were not disclosed in the writ petition. A lapse on this score becomes more grave. Normally, this Court would have dismissed the petition on the ground of not approaching the Court with clean hands. However, in the interest of justice and the petitioner tenant may not be prejudiced, this Court is of the opinion that the Rent Control and Eviction Officer be directed to determine the vacancy afresh after obtaining the report of Rent Control Inspector, in accordance with law complying with the provisions of Rule 8(2) of the Rules. No fresh notice will be required to be given to either of the parties. Since the parties are agreeable that prospective allottee has already left Moradabad and is no more interested and the only concerned interested parties as on date are the petitioner and the respondent Nos. 3. 4 and 5 who are represented through their counsel, the Rent Control and Eviction Officer shall direct Rent Control Inspector to inspect the premises in question, or he himself may inspect the premises, if deemed appropriate on 8.2.2002 and the aforementioned concerned parties shall obtain requisite information from the office of Rent Control and Eviction Officer in this respect to ascertain time of inspection. The required inspection report may be brought on record and thereafter the Rent Control and Eviction Officer shall proceed in the matter in accordance with Rule 8(2) of the Rules and decide the matter. In case the Delegated Authority again comes to the conclusion that the vacancy exists, he shall decide the question of declaring vacancy in accordance with Rule 8 (2) within four weeks from the date of the receipt of the report and in case it is again found that the accommodation in question is vacant, the order of release passed on 19.5.2000 shall remain intact and will be given effect to forthwith. If it is found that there is no vacancy, the order of release shall be deemed inoperative.
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Bhagwat Saran Gupta, Advocate vs Rent Control And Eviction ...


High Court Of Judicature at Allahabad

30 January, 2002
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