1. Since both the writ petitions are arising out of common proceedings, they have been heard together and are being decided by this judgment.
2. Heard Sri Vivek Kumar Singh, learned counsel for the petitioner. None has appeared on behalf of the respondent though the name of Sri Rajeev Gupta, as counsel for respondent has been shown in the cause list.
3. Writ petition no. 10171 of 1990 (hereinafter referred to 1st petition) is directed against the orders dated 28.01.1985 and 22.01.1990 (Annexure 1 and 8 to the writ petition) passed by respondent no. 2, Rent Control and Eviction Officer, Ghaziabad and respondent no. 1, VIII Additional District Judge, Ghaziabad respectively.
4. Writ petition no. 10170 of 1990 (hereinafter referred to 2nd petition) is directed against the orders dated 28.06.1985 and 22.01.1990 (Annexure 7 and 9 to the writ petition) passed by respondent no. 2, Rent Control and Eviction Officer, Ghaziabad and respondent no. 1, VIII Additional District Judge, Ghaziabad respectively.
5. In the 1st petition the order of allotment dated 28.01.1985 has been passed by Rent Control and Eviction Officer, Ghaziabad (hereinafter referred to as "R.C.E.O."), in Case No. 53 of 1984, under Section 16 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act 1972 (hereinafter referred as "Act No. 13 of 1972"), allotting shop no. 4 Jagniganj, opposite Clock Tower G.T. Road, Ghaziabad to Sri Manoj Kumar Jain, respondent no. 3. The order dated 28.06.1985 was passed by RCEO while rejecting landlady's application for review of order dated 28.01.1985. Both these orders were assailed in revision which has been rejected on 22.11.1990. The only ground of challenge assailing the aforesaid order dated 28.01.1985 is that mandatory provision of Rule 8 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred as to the "Rules 1972") was not complied with and no information/notice was given to petitioner before making the aforesaid allotment. The revisional court, however, in the impugned revisional order has held that notice was attempted to be served upon petitioner through court's peon on 5th January, 1985. On 28th January,1985 when the impugned order of allotment was passed, petitioner's husband, who had been doing pairvi on her behalf in court in other cases, was present before R.C.E.O. Hence, the contention that allotment was made in violation of Rule 8 of Rules 1972 is false and incorrect.
6. Learned counsel for the petitioner reiterated the same ground before this Court also, contending that the impugned order of allotment was passed without giving any notice to the petitioner and in utter violation of procedure prescribed in Rule 8 of Rules, 1972 and the courts below have erred in law in taking an otherwise view.
7. It is evident from record that the petitioner initially filed an application dated 7th February, 1985 purported to be under Order IX Rule 13 C.P.C. read with Rule 22 of Rules 1972 requesting R.C.E.O. to set aside the alleged ex-parte order dated 28th January, 1985. It is stated therein that petitioner's husband went to the shop in question on 4th February, 1985 at about 11:00 AM to collect rent for the month of November, 1984 and found previous tenant absent and in his place Manoj Kumar Jain, respondent no. 3 was occupying the said shop. When questioned, he referred to the order of allotment passed by R.C.E.O. whereafter petitioner's husband contacted his counsel, got the record inspected on 6th February, 1985 and came to know that Rent Control Inspector had submitted a report on 31st December, 1984 after inspection of the premises in question and reported vacancy though, as a matter of fact, no notice in this regard was ever served upon petitioner/landlady and entire proceedings were ex-parte.
8. The application was opposed by respondent no. 3, stating that on 5th January, 1985 the Court peon went to petitioner's residence at 15, Ramte Ram Road, (Main Road) Ghaziabad. In presence of two witnesses, Yogender Kumar and Suresh Chandra, the petitioner received the notice and went inside her house but after sometime came back and declined to give any acknowledgement about service of notice whereafter the court peon affixed the said notice at petitioner's residence in presence of the said two witnesses. He further said that petitioner's husband was present in the court of R.C.E.O. on 28th January, 1985 when the order of allotment was passed. The contention that the allotment has been made without any notice etc., is false.
9. In the replication filed by petitioner, in para 3 thereof, though she denied to have received any notice on 5th January, 1985 as also the pasting of notice, but, she has not stated at all that on the said day, no court peon had come to her residence along with notice and she did not meet such process server at all. Similarly, in para 4 thereof she has denied about pronouncement of order of allotment in presence of her husband but has not said that her husband was not present in the court of R.C.E.O. on 28th January, 1985 at all. The R.C.E.O. rejected petitioner's application/objection by order dated 28th June, 1985 and has recorded a finding that petitioner had full knowledge of allotment proceedings. Having not denied the visit of process server to her residence on 5th January, 1985 and also the fact that the notice was taken by her and after sometime she declined to acknowledge the same, the aforesaid finding of fact has been confirmed by revisional court also.
10. Before this court also, the petitioner has reiterated her stand that the entire proceedings were in contravention of procedure prescribed under Rule 8 of Rules 1972. Though it is true that the petitioner has not specifically stated anywhere that on 28th January, 1985 her husband was not present in the court of R.C.E.O. but that itself would not indicate that he attended the court of R.C.E.O. in respect of the present proceedings itself and not with respect to any other matter, particularly when it is admitted that petitioner owns several rented buildings and therefore, for various reasons her husband used to attend the court of R.C.E.O. and other authorities from time to time.
11. Similarly, it is true that petitioner's application/objection filed before the R.C.E.O. has not specifically said that the court process server did not visit her residence on 5thJanuary, 1985 but it is also true that this fact was not admitted by her. Throughout, the petitioner has denied service of any notice upon her on 5th January,1985. The aforesaid denial covers every aspect. In my view, mere fact that each and every assertion made by respondent no. 3 in his reply to the petitioner's application has not been specifically and separately denied would not mean that the petitioner's clear denial of service of any notice upon her cannot be read in respect of entire allegations unless each and every aspect is separately denied. The approach of respondent authorities i.e. R.C.E.O. and the revisional court, in my view, is clearly erroneous and illegal. Both the authorities, this court is constrained to observe, have proceeded in a wholly erroneous manner without caring to investigate whether the procedure prescribed in rule 8 was complied or not.
12. Moreover, from record, it does not appear when respondent no. 3 made application, intimating vacancy likely to occur in the shop in question, seeking allotment thereof. It is also not on record that the outgoing tenant ever informed R.C.E.O. about factum of his vacating the shop in question. It is also clear that possession of shop in question was not handed over by the outgoing tenant to petitioner/landlady. On the contrary, it is evident from record, and, is also admission of respondent no. 3 in his own reply that the shop in question came in his possession on 31st January, 1985 but in what manner, he has kept silence. All these facts indicate some collusion between respondent no. 3 and the outgoing tenant, inasmuch as the procedure required to be observed in such matters, prescribed in the statute has clearly been breached with impunity. Section 15 (2) of Act 1972 makes it obligatory upon a tenant, who is likely to vacate a premises, to inform District Magistrate, in writing, about such vacating of building under his tenancy and also to the landlord/landlady, at least 15 days before the vacancy.
13. Both the courts below have completely ignored this fact and have not considered at all whether such notice was ever given by outgoing tenant to District Magistrate and the landlady or not. Though a counter affidavit has been filed on behalf of respondent no. 3 but nothing has been said about this fact. It has, however, admitted that actual physical possession of disputed shop is with respondent no. 3. He has not stated anywhere, in what manner, possession of shop was delivered to him and who did it.
14. The Rent Control Inspector submitted his report on 31st December, 1984. The vacancy likely to occur has been mentioned therein by referring to statement of outgoing tenant Ujagar Singh but when vacancy would occur and when he (outgoing tenant) would be actually vacating the shop is not mentioned. It is for this reason that in the allotment order R.C.E.O. has said that delivery of possession shall be made by petitioner landlady to allottee by 10th February, 1984 or within 10 days of its being vacated by Sri Ujagar Singh and Sri Jaswant Singh.
15. The procedure for making inspection and ascertainment of vacancy prescribed in Rule 8 is as under :
Ascertainment of vacancy [Sections 12, 16 and 34 (8).-[(1) The District Magistrate, shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected [by a Gazetted Officer].
(2) The inspection of the building, so far possible, shall be made in presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the mean time any objection is received, not before the disposal of such objection.
(3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned any adduce.]
16. It thus provides that as far as possible, inspection of building shall be made in presence of landlord and tenant or any other occupant, meaning thereby, before making inspection, the landlord will be apprised of such inspection, obviously by giving a notice, otherwise, the question of his presence would not arise and cannot be ascertained. It is true that rule 8 talks of "so far as possible". If no information is given, then it is for the inspecting authority to tell as to why information to landlord asking him to remain present at the time of inspection was not possible to be given. However, once such an information is given and the landlord if not present, would be failing on his/her part and no fault shall be attributable to the inspecting authority provided such information has actually been given. There is nothing on record to show that any such information was ever given by Rent Control Inspector at any point of time to the landlady. There was no attempt on the part of Inspector to require the landlady to remain present at the time of inspection. Both the courts below have completely ignored to consider this aspect of the matter.
17. In the order dated 22.01.1990 passed by revisional court, the date of application of respondent no. 3 for allotment has been given as 20th December, 1984. It appears that his date of inspection is apparently a typing mistake, since both the parties agreed that correct date of inspection was 31st December, 1984 which fact was admitted by the counsel for the petitioner himself as also it finds mention in the ground of revision no. 120 of 1985 filed by petitioner. Therefore, from the date of application and date of inspection there is a gap of just ten days. It was incumbent upon R.C.E.O. to find out whether before making inspection any information whatsoever was given to landlady or not. In absence of anything on the part of inspecting authority to ensure presence of the landlady at the time of inspection would mean that there was no compliance at all of rule 8 (2) which makes the entire proceedings illegal.
18. This Court in Kailash Chand and another Vs. Kailash Narain, 1982 ARC 285 considering rule 8 (2), said that it is incumbent upon the Inspector to make efforts to contact landlord at the time of his inspection and in absence of any material to indicate that it was not possible for him to do so, his report given on the basis of such report, inspection i.e. in the absence of landlord, would be in the teeth of rule 8 of Rules, 1972. This Court followed its earlier decision in Mohd. Naseem Vs. A.R.O./R.C. & E.O. 1980 AWC 186.
19. In the present case, neither it has been ensured that inspection was made after giving an opportunity to the landlady to remain present at the time of inspection nor respondents no. 1 and 2 have cared to ensure that any notice under Rule 8/9 of Rules 1972 was actually served upon the petitioner at any point of time. Both the authorities have proceeded by misreading petitioner's averments contained in her objections and replications and have erroneously held that she has not specifically denied about visit of process server to her residence on 5th January, 1985. They have completely ignored the fact that when there is complete denial of service of notice, it was incumbent upon them to inquire into every aspect of the matter unless proved otherwise. Though under rule 28 of Rules 1972, procedure for service of notice includes service through process server but in absence of any acknowledgement by the addressee and on the contrary, a clear denial, this fact has to be proved by positive evidence.
20. In the present case, no attempt was made by R.C.E.O. to find out, whether the petitioner was actually served with the notice as alleged by respondent no. 3 instead of simply misreading between the lines of her pleadings. Hurry on the part of R.C.E.O. also creates serious doubts about objectivity and impartiality on his part in the present matter.
21. A retrospect of the chain of events show the date of application by respondent no. 3 as 20th December, 1984, submission of inspection report by Rent Control Inspector on 31st December, 1985 and alleged service of notice upon the petitioner on 5th January, 1985. No date was given when conclusion of inspection report was pasted on the notice board for information of general public; and no date is mentioned when vacancy was entered in the register maintained in the office of R.C.E.O. as contemplated under Rule 9(3).
22. It appears that there has been an attempt to complete only record instead of substantial and objective spirited compliance of the procedure prescribed under the Rules.
23. Be that as it may, the fact remains that there has been no compliance whatsoever of Rule 8(2), inasmuch as, no notice or information in any manner was ever given to the petitioner landlord before making inspection and submitting report. Hence, Rule 8 (2) has been breached in its entirety. Following the decisions of this Court that before inspection of premises, notice/information to landlord is mandatory, i.e. Uma Shankar Vs. XIIth Additional District Judge, Kanpur, 2003 (2) ARC 228 2003 (4) AWC 2895, Navin Chandra Agarwal Vs. Ist Additional District Judge, Nainital 2000(2)ARC 644, Asha Raina (Km.) Vs. Rent Control and Eviction Officer, Dehradun, 2000(1) ARC 156, Ram Ahuja Vs. Ist A.D.J., Saharanpur, 2005(3)ARC 350; R.L. Poddar Vs. A.D.J., 2003(2) ARC 629 (SC) and C.K. Nagarkar Vs. A.D.J., 2004 (2) ARC 340 (SC), I have no hesitation in holding that the allotment order, impugned in this writ petition and the revisional order are wholly illegal and cannot sustain.
24. Further the facts discussed above clearly show a collusion between the outgoing tenant, respondent no. 3 as also respondent no. 2, i.e. R.C.E.O. and other officials. The petitioner/landlady has been made to suffer on account of apparently illegal and coercive proceedings. The authorities have turned a blind eye in the present case, to the facts that in utter violation of statutory provisions, possession of the shop in question has been obtained by respondent no. 3, not from landlord or through R.C.E.O., but directly from outgoing tenant, and that too without any intimation given by outgoing tenant, either to District Magistrate or the petitioner landlady. All these facts also show that petitioner has been dragged in this litigation on account of wholly illegal proceedings due to the above collusion. Therefore, the petitioner is entitled to an exemplary costs.
25. Both the writ petitions are allowed. Impugned orders are hereby set aside. Possession of the property in question retained by respondent no. 3 is declared illegal. He is directed to vacate the premises forthwith. The petitioner shall also be entitled to cost which is quantified to Rs. 50,000/- to be shared equally by respondents no. 2 and 3.
26. However, it is made clear that R.C.E.O. shall be at liberty to proceed in respect of accommodation in question, for its allotment etc., in accordance with law, afresh.
Order Date:- 9.8.2012 Anand