1. Heard Sri A.K.Gupta, learned counsel for the petitioner, Sri Nipun Singh, learned counsel appearing for respondent No.3 and learned Standing Counsel.
2. Three orders passed by Rent Control and Eviction Officer, Muzaffarnagar (hereinafter referred to as "RCEO") have generated a cause of action to petitioner, Shadi Ram, Son of Late Lal Chand and M/s Lal Chand Shadi Ram, a partnership firm, to bring this writ petition under Article 226 of Constitution before this Court.
3. The first impugned order is dated 13.5.1992 (Annexure 3 to the writ petition) declaring vacancy in accommodation in question i.e. House No.51-B, Nai Mandi, Muzaffarnagar comprising of two shops. The second order is dated 20.8.1992 (Annexure 5 to the writ petition) whereby accommodation in question has been allotted in favour of Sri Arvind Bhardwaj, respondent no.3, and third order dated 04.02.2000 (Annexure 19 to the writ petition) whereby RCEO has rejected petitioner's application registered as Misc. Case No.1 of 1998 for recall of orders dated 13.5.1992 and 20.8.1992.
4. The basic contention of Sri A.K.Gupta, learned counsel appearing for petitioner is that entire proceedings causing first two impugned orders dated 13.5.1992 and 20.8.1992 are ex parte i.e. without giving any notice or opportunity to the petitioner, hence illegal.
5. The brief facts giving rise to the present dispute, as stated in the writ petition, are as under:
6. The premises no.51-B, Nai Mandi, Muzaffarnagar is a very big building owned by one Surendra Kumar Agarwal, respondent no.2. The disputed building housed several tenants. One room and one Garage was let out to the petitioners by the owner of the building in 1946 and since then petitioners are in possession of aforesaid accommodation. The petitioners are running a business in the name of firm M/s Lal Chand Shadi Ram dealing with Oil Mill and General Mills and also as Commission Agent. The premises is used by the petitioners partly as godown and partly as office. It has never been vacated by the petitioners.
7. The respondent no.3, Sri Arvind Bhardwaj, a local print media correspondent i.e. working in daily newspaper "Amar Ujala" was living in the same building with his father occupying a separate accommodation. Knowing fully well that accommodation in dispute is under tenancy of petitioners and is duly occupied, yet with a mischievous and with mala fide intention, in order to usurp that accommodation, he moved an application dated 1.5.1992 before RCEO seeking allotment of premises in dispute alleging that it has already been vacated by M/s Lal Chand Shadi Ram Firm and also stated in his application that landlord/owner of the building Sri S.K.Agarwal is residing at Muraina (Madhya Pradesh) working as Chief Chemist, Kailras Sugar Mill, Muraina. A copy of this application is Annexure 1 to the writ petition. It contains an endorsement of RCEO dated 1.5.1992 as under:
"RCC/RCI, Pl register and report"
8. The Rent Control Inspector (hereinafter referred to as "RCI") claimed to have visited the premises on 13.5.1992 and submitted report on the same date. He stated therein that at the time of inspection, disputed premises was found locked. The applicant namely Sri Arvind Bhardwaj, respondent no.3, was present and he told that landlord/owner is residing at Muraina and disputed premises has been vacated by M/s Lal Chand Shadi Ram.
9. On the same date i.e. 13.5.1992, not only RCI submitted report but RCEO notified vacancy and fixed 04.6.1992 for considering question of allotment. The order dated 13.5.1992 passed by RCEO is on record as Annexure 3 to the writ petition, which shows that he directed to communicate the said vacancy, notified, to Sri Surendra Kumar Agrawal, Chief Chemist and applicant Sri Arvind Bhardwaj, besides placing notified vacancy on notice board, in the office of RCEO.
10. Thereafter respondent no.3, Sri Arvind Bhardwaj, filed his own affidavit dated 22.6.1992 (Annexure 4 to the writ petition) and in para 5 thereof, he said that M/s Lal Chand Shadi Ram became insolvent in 1971 but still is occupying disputed premises with an intention to extract premium for vacating accommodation in question. He also said that aforesaid Firm has got a Dal Mill constructed at Peeth Bazar, Nai Mandi, Muzaffarnagar and therefore, even otherwise, requirement of M/s Lal Chand Shadi Ram with respect to accommodation in question has ceased.
11. RCEO passed order on 20.8.1992 observing that vacancy notification was communicated to landlord/owner Surendra Kumar Agarwal by registered post but he has taken no interest to participate in the allotment proceedings. Only Arvind Bhardwaj was present who was heard and accordingly he passed order allotting accommodation in question in favour of Sri Arvind Bhardwaj, respondent no.3.
12. Pursuant to allotment order dated 20.8.1992, notification in Form-B was also issued by RCEO in which it has been mentioned that accommodation has been vacated by M/s Lal Chand Shadi Ram and is being allotted to Arvind Bhardwaj. In the said Form-B also, which is Annexure 6 to the writ petition, address of Sri Surendra Kumar Agarwal, owner of the building in dispute, was given that of Kaithal Co-operative Sugar Mill, Kaithal (Hariyana). The order sheet of proceedings before RCEO has also been placed on record as Annexure 7 to the writ petition. It shows that on 13.5.1992, an order was passed for giving information to landlord by registered post after notifying vacancy. On 4.6.1992 it was adjourned due to pre-occupation of Presenting Officer and on 18.6.1992 again an order was passed to inform landlord by registered post. On next three dates the matter was adjourned i.e. 25.6.1992, 2.7.1992 and 9.7.1992, the Presenting Officer being on leave. On 16.7.1992 applicant namely Arvind Bhardwaj was present who was heard and order was reserved fixing 20.8.1992 for delivery thereof.
13. The interesting facts, which are born out from above discussion are as under:
(i) The respondent no.3 moved application on 1.5.1992. On the same day RCEO passed an order directing for its registration and RCI was directed to submit report.
(ii) RCEO visited on 13.5.1992 and on the same day submitted report. He found premises locked. Obviously he had no occasion to get information whether there was somebody residing therein or not and whether premises was vacant or belongings of somebody are kept therein.
14. Admittedly RCI also did not had any occasion to meet landlord/owner on the date of inspection. Whatever information he has received is from interested prospective allottee i.e. respondent no.3. Sri Arvind Bhardwaj informed him that M/s Lal Chand Shadi Ram, who were tenants in accommodation in dispute have vacated it and this is what he claims to have mentioned in report dated 13.5.1992. This report was placed before RCEO on the same date i.e. 13.5.1992 and RCEO was quick enough to declare vacancy. Even RCEO had no occasion before declaring vacancy whether anybody was residing in the premises and what are current state of affairs. Before declaring vacancy he did not issue any notice either to the landlord or anybody else but was fast enough to declare vacancy on the same date when RCI made inspection, submitted report and immediately it came to RCEO inspiring him to act fast and immediately declared vacancy.
15. Rule 8(2) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as "Rules, 1972") provides that as far as possible, inspection shall be made in presence of landlord and tenant or any other occupant. No attempt appears to have been made by RCI or RCEO to convey any information to landlord or to alleged erstwhile tenants to find out current state of affairs or requesting them to present on the date when RCI proposed to make inspection.
16. It is true that Rule 8(2) of Rules, 1972 talks of in terms of "so far possible" but in the present case there does not appear to have been any attempt whatsoever on the part of RCI or RCEO to make it possible at all. A complete blind inspection was made by RCI since premises was locked and yet he did not make any attempt to find out as to who has locked the premises. This fact that premises has been vacated by M/s Lal Chand Shadi Ram told by respondent no.3, as stated in the report, but it does not appear that RCI on his own part made any attempt to verify this information.
17. Now I come further. RCEO after declaring vacancy on 13.5.1992 fixed 4.6.1992 for considering question of allotment with a further direction that information be conveyed to the owner of premises i.e. Sri Surendra Kumar Agarwal. There is nothing on record to show that RCEO verified service of notice upon landlord as per order dated 13.5.1992 when the matter came before him on the next date, inasmuch as, on 4.6.1992 there was no consideration on merits since Presenting Officer was busy elsewhere and the matter was adjourned to 18.6.1992 when again the same thing happened. However, while adjourning the case to 25.6.1992, there is a further order by RCEO to inform other side by registered post.
18. Here this Court understand that word "other side" means owner of the premises since Arvind Bhardwaj, the prospective applicant-allottee was already before him. The next three dates i.e. 25.6.1992, 2.7.1992 and 9.7.1992, the matter was adjourned repeatedly since Presenting Officer i.e. RCEO was on leave. Thereafter it came befor ehim on 16.7.1992. The order does not show that he ensured service of notice upon landlord as already directed him. Sri Arvind Bhardwaj, who has been addressed as plaintiff or applicant was present and matter was again adjourned to 20.8.1992 when impugned order was passed.
19. On one hand there is nothing to show that RCEO ensured service of notice upon landlord at any point of time, on the other hand this fact was already brought to his notice through affidavit filed by respondent no.3 that accommodation in dispute is still under occupation of M/s Lal Chand Shadi Ram yet he did not make any effort thereupon to issue notice to M/s Lal Chand Shadi Ram i.e. petitioner no.2 so as to give opportunity to it and also have correct and full facts before him.
20. The affidavit of respondent no.3 is dated 22.6.1992 and in para 5 thereof, respondent no.3 has categorically stated that with a intention to extract premium in lieu of vacation of premises in dispute, firm M/s Lal Chand Shadi Ram is still illegally continuing to occupy the premises in dispute though it is no longer necessary and required by them. This fact makes it absolutely clear that respondent no.3 was well aware that accommodation in question is in possession and occupation of petitioner no.2 of which petitioner no.1 is a partner and has not vacated the same. This fact also belied his earlier stand that accommodation in question has been vacated by aforesaid firm. It is really surprising and shocking as to what prompted RCEO not to address itself and apply mind on this aspect of the matter and thereby issue notice to the petitioner before passing the impugned order. The Court is also at a loss to understand and appreciate urgency of passing an ex parte order without looking entire record available before respondent no.1 i.e. RCEO. The only thing which appears to be reason behind such kind of proceeding is something other than bona fide and unlawful nexus between respondents No.1 and 3.
21. It is also surprising that while filing recall application, petitioners have placed on record voluminous documents to show that they were in possession of accommodation in question and have never vacated the same. Still RCEO has felt satisfied by observing that firm having been closed in 1980, possession of property in dispute would stand ceased and petitioners cannot be held to be in possession of property in dispute without recording any finding that petitioners have removed all their belongings and goods etc. from premises in question so as to declare property deemed vacant or that petitioners are otherwise disqualified to continue with tenancy rights of the accommodation in question with the consent of landlord even if they are not doing any business whatsoever. RCEO cannot presume vacancy of building unless provisions relating to deemed vacancy are applicable or premises has actually been vacated by tenant or premises has been released in favour of landlord with order of ejectment of concerned tenant. None of these things have been pointed out in impugned orders by RCEO while rejecting petitioner's application for recall of his earlier orders. It appears to have proceeded on a presumption as if somebody, if has closed his business, even though the case is not squarely covered by any provision of Section 12 or 16 of Act, 1972, still he can treat the accommodation vacant, available for allotment for anybody else, though there is no termination of tenancy rights by landlord or by any other competent authority under the provisions of rent statute.
22. The respondents no.1 and 3, in the present case, have clearly acted wholly illegally inasmuch as respondent no.3 has induced the entire proceedings making false allegations that accommodation has been vacated by petitioner no.2 long back though in a subsequent affidavit before RCEO dated 22.6.1992 he himself has stated in para 5 that petitioner no.2 is still continue in possession of accommodation in question and therefore, it is evident that respondent no.3 has got proceedings initiated on totally false statements and misrepresentation. Respondent no.1 is guilty of passing wholly illegal orders, not only by not strictly complying with requirement of statute including procedure prescribed in Rules 8(2) and 9 but also acting wholly illegally by not adhering to procedure of law and ignoring relevant materials placed on record by petitioners. That is how they have dragged petitioner in a wholly unwarranted litigation.
23. The Apex Court in the case of Salem Advocate Bar Association Vs. Union of India, AIR 2005 SC 3353 has observed that while deciding a case, Court may impose cost and when situation so justify, exemplary cost should be imposed so that frivolous litigation should be discouraged. The Court in para 38 said:
"Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation."
24. In view of the facts and circumstances, in my view, this writ petition deserve to be allowed with exemplary cost against respondents no.1 and 3.
25. In the result, the writ petition is allowed. The impugned orders dated 13.5.1992 and 20.8.1992 (Annexure 3 and 5 to the writ petition) are hereby quashed. The petitioner shall be entitled to cost which is quantified to Rupees One Lac against respondents No.1 and 3 which shall be borne by them equally. The State Government, however, is granted liberty to recover amount of cost from individual officer concerned responsible for passing illegal orders, set aside in this writ petition, after making such enquiry as provided in law.
Order Date :- 7.11.2012 KA