1. Heard Sri K.K. Arora, learned counsel for the petitioner and Sri P.K. Singhal, learned counsel for the respondent.
2. This writ petition is directed against the orders dated 30.05.1998 (Annexure 10 to the writ petition) passed by Prescribed Authority, Bilaspur, Rampur in Case No. 7 of 1995-96 and dated 05.08.2002 (Annexure 11 to the writ petition) passed by Additional District Judge, Court no. 2, Rampur in Rent Revision No. 58 of 1998.
3. The Prescribed Authority/Rent Control and Eviction Officer, Bilaspur vide order dated 30.08.1998 has declined to review his order dated 12.03.1997 in Case No. 7/1995-96 declaring vacancy in the accommodation in question and directing to proceed further for allotment of the said accommodation and the revisional court has dismissed the revision confirming the order dated 12.03.1997 passed by the Prescribed Authority/Rent Control and Eviction Officer, Bilaspur vide order dated 05.08.2002.
4. The dispute relates to residential building situate in Mohalla Shiri Mian, Cinema Road, Kasba and Tehsil, Bilashpur, District-Rampur owned by Sri Raghubir Saran son of Sri Mangat Ram, (respondent no. 1 in this writ petition). One Chandra Pal Singh was occupying the aforesaid premises. Respondent no. 2, Ravindra Chaudhary made an application for allotment of the said premises alleging vacancy therein. The premises was inspected by Rent Control Inspector, Bilashpur. He submitted report dated 05.06.1996. Thereafter, notices were issued to landlord, the occupant Chandra Pal Singh and the applicant Ravindra Chaudhary. The Rent Control and Eviction Officer, Bilashpur (hereinafter referred as to "the R.C.E.O.") by order dated 12th March, 1997 held occupation of the premises by Sri Chandra Pal Singh, (respondent no. 3) unauthorised and illegal since he did not possess any order of allotment to occupy the premises in question which was governed by Section 16 (5) of U.P. Urban Buildings (Regulation, Letting and Eviction), Act 1972 (hereinafter referred as to "Act No. 13 of 1972") and consequently declared vacancy in the aforesaid premises. He also directed to proceed for allotment thereof.
5. The petitioner filed an application dated 02.04.1997 under Section 16 (5) of Act 1972 for review of the order dated 12.03.1997 on the ground that she was not given any opportunity before passing the said order. Though she is occupying the premises in question and residing therein with her family. She also claimed that there was an agreement to sell executed on 15.10.1976 between landlord and the petitioner for sale of the said accommodation pursuant whereto an advance of Rs. 1,000/- was given to the landlord but he did not execute the sale deed though partial consideration was paid by petitioner and she was also given possession of the property in dispute. She had also stated that opposite party no.3 (impleaded in the said review application i.e. Sri Chandra Pal Singh) is her husband but for last three years their relations are strained. He was transferred to Moradabad and not interested to purchase the house/the building in dispute, with which the petitioner was not agreeable. The petitioner's husband Sri Chandra Pal Singh was very annoyed for this reason and used to visit the aforesaid residence on a very few occasions. The order dated 12th March, 1997 has been passed to evict petitioner's husband Chandra Pal Singh in collusion with landlord Sri Raghuvir Saran. She also admitted that after declaration of vacancy vide order dated 12th March 1997, the petitioner's son has also filed an application for allotment of the said premises. She further claimed that the building in dispute is a new construction made in 1975-76. Water tax assessment was made for the first time by Nagar Palika Palishad, Bilaspur on 1st April, 1979, therefore, under Section 2 (1) of the Act 1972 the building would be deemed to be constructed on 1st April, 1979 and for next 10 years, Act 1972 would be inapplicable. In these circumstances, there was no question of any letter of allotment in 1983 when possession was given to petitioner. Consequently, applying Section 12 of Act 1972, vacancy in the premises cannot be declared on the ground that the aforesaid occupation in 1983 without any letter of allotment was unauthorised and illegal. A copy of the alleged agreement to sell dated 15.10.1976 is annexure 3 to this writ petition and it is admitted that it is not a registered document.
6. The petitioner's aforesaid application for review, filed under Section 16 (5) was contested by Raghubir Saran (respondent no. 1) vide objection dated 15.04.1997 wherein he disputed execution of any agreement to sell on 15.10.1976 as well as payment and claimed it forged and fictitious. He said that the building in question was let out to petitioner's husband Sri Chandra Pal Singh on a monthly rent of Rs. 950/- and Sri Chandra Pal Singh alongwith his family started residing therein. The facts otherwise stated in review application were said to be false. It is also said that in 1989 petitioner's husband was transferred to Moradabad. Thereafter, they came to stay in the building in question on a very few occasions but since last one year petitioner's husband is under suspension and therefore, he alongwith his family, including the petitioner, is continuously residing in the disputed building. It has also been pointed out that at the time of inspection made by Rent Control Inspector, petitioner's husband was residing in the said building and all the proceedings were well in the knowledge of the petitioner. Her husband Sri Chandra Pal Singh also contested report of Inspector and after opportunity to him, the order dated 12th March, 1997 was passed. The application for review appears to have been filed to delay landlord's application of release. Regarding construction of the building, the respondent no. 1 landlord said that it was not a new construction made in 1975-1976 as alleged by the petitioner, but the house in question was constructed in 1963 and house tax and water tax was being regularly paid since then. Electric connection was also installed in the building in 1963 bearing connection no. 0102950 book no. 5422. The building is governed by Act No. 1972 having completed 10 years of construction in 1973. The contrary averments made by Sri Munni Devi wife of Sri Chandra Pal Singh, respondent no. 3 were challenged as false and incorrect.
7. The petitioner filed affidavit dated November, 1997 (annexure 5 to the writ petition). Affidavits of Sri Bijendra Singh son of Sri Chandra Pal Singh, and the petitioner are also filed (Annexure 6 to the writ petition). Some other affidavits (copy whereof has been filed as annexures 7 to 9), were also filed which I shall refer, if necessary, at a later stage,-
8. The R.C.E.O. by order dated 30th May, 1998 has rejected the aforesaid review application. The petitioner's revision against the aforesaid order has been rejected as not maintainable.
9. Sri Arora, learned counsel for the petitioner submitted that a jurisdictional issue was raised by petitioner on the ground that construction being a new one, made in 1975-76, U.P. Act No. 13 of 1972 was not applicable to the house in question in 1983 and, therefore, occupation of the building by petitioner or her husband in 1983 could not have been held illegal for want of letter of allotment. He further contended that petitioner held possession, more in the capacity of owner, than that of the tenant, and therefore, letter of allotment was not at all required. He contended that the R.C.E.O. should not have considered and decided the dispute relating to title of the property since it could have been settled only in a regular suit. Hence, the impugned orders are wholly illegal and liable to be set aside. The petitioner cannot be dispossessed by holding unauthorised occupant though she is occupying the premises in question in her capacity as landlady and not the tenant.
10. I have gone through the entire record and have also given my anxious consideration to the lengthy submission advanced by Sri K. K. Arora. I find that here is a case where petitioner is ex-facie guilty of gross abuse of process of law. She has taken mutually discredited and inconsistent pleadings. Having lost the matter through her husband, she has come up alleging her own independent right without placing anything on record to substantiate such claim. The entire proceedings are nothing but an attempt on the part of the petitioner to prolong possession of herself and family, in the premises in dispute which they are holding unauthorisedly and the attempt is to prevent a valid prospective allottee to obtain a lawful order.
11. Firstly I come to the basic plea of petitioner's alleged capacity to occupy the building in dispute as landlord/owner and not as a tenant. This is admitted that there is no execution of sale deed in respect of the property in dispute in favour of petitioner or any other member of her family. It is also not disputed that the alleged agreement for sale is an unregistered document. Transfer of immoveable property without any registered document is impermissible by statute.
12. Transfer of ownership in exchange for a price paid for promised or part-paid and part-promised in respect of tangible immovable property of the value of Rs. 100 and upwards is permissible by registered instrument and not otherwise, vide Section 54 of the Transfer of Property Act. Consequently, in absence of any registered document, it cannot be said that the ownership stood transferred to petitioner at any point of time. Hence, the petitioner did not acquire the capacity of ownership to occupy the premises in dispute. The claim set up on the basis of alleged unregistered agreement to sell has no legal consequence at all and deserves to be rejected outright.
13. Moreover, in her review application, the petitioner has taken mutually destructive and inconsistent pleas. On the one hand, she claims to have occupied the premises in September, 1983 pursuant to alleged agreement to sell dated 15.10.1976 after advancing partial consideration to landlord, (respondent no. 1) so as to reside in the building in dispute in her own rights as is evident from para 2 of the review application, but simultaneously, in para 9 thereof she said that it was a new building constructed in 1975-1976, water tax assessment was made for the first time with effect 01.04.1979 and then she has said that the building in question was let out to her in 1983 for the first time on rent. The capacity of petitioner, therefore, to occupy the premises was admitted by herself in para 9 of her review application being that of a "tenant".
14. It is also admitted to her that she is residing in the building in question alongwith her family, husband Sri Chandra Pal Singh and children. No document showing that rent was paid by the petitioner as tenant of the building and not by Sri Chandra Pal Singh, has been placed on record either before the courts below or before this Court. No material has been placed to show that the building was constructed in 1975-1976 and not earlier thereto as claimed by the landlord himself.
15. It has also been admitted that alleged agreement for sale was not owned by the landlord/owner. No efforts were made by her to compel the owner/landlord for execution of sale deed and no proceedings for specific performance of contract were initiated by her.
16. The petitioner's husband while contesting proceedings for declaration of vacancy admitted that he is tenant in the premises in dispute for the last 12 years but did not make any reference to alleged agreement for sale. The petitioner also did not place anything to support that her husband is/was not residing with her. On the contrary, she admitted that he used to visit house and reside there from time to time after his transfer to Moradabad. She has also failed to place anything on record to show that she was occupying the premises in dispute in her own right either as tenant or otherwise and it was not Sri Chandra Pal Singh who was let out the house in question by respondent no. 1.
17. The R.C.E.O. in the above facts and circumstances has found that the application filed by the petitioner under Section 16 (5) of the Act 1972 was to obstruct ejectment of herself and her family i.e. respondent no. 3 husband, and son etc. It was nothing but an attempt to obstruct the allotment proceedings. When the petitioner's husband had already lost the matter having been declared unauthorised occupant in the premises in question, in order to substantiate her possession, she took the plea that she was occupying the premises in her capacity as owner or landlord, though there is no legal or valid evidence, admissible in law, to show that the property in dispute was ever transferred to her alongwith ownership. The pleadings in their entirety on the contrary, shows that premises in question was occupied by petitioner and her family in the capacity of tenant and rent was also paid to respondent no. 1. The kind of payment referred to in para 6 of the affidavit of the petitioner to suggest that it was made towards partial payment of consideration pursuant to alleged agreement to sell, ex-facie, fails to satisfy this Court so as to constitute the same, i.e. payment of partial consideration to landlord, respondent no.1.
18. Further the alleged agreement to sell is said to have been executed in 1976, the partial payment thereof is said to have commenced after more than 11 years thereto. Rs. 1,000/- was paid in November 1987; Rs. 3,000/- after 11 months thereto i.e. in October 1988; Rs. 1,500/- in December 1988; Rs. 2,000/- in March, 1989 and so on. It is not conceivable that a transaction, if agreed, for a consideration of Rs. 2,00,000/- in 1976, any person would be accepting a few thousands of rupees after more than a decade and so on. On the contrary, respondent no. 1 had said that the monthly rent of disputed building was Rs. 950/-. That being so, the alleged payment, if made, may have been towards the rent. Besides the above, no document has been placed on record to show that the petitioner made otherwise, payment of rent in any manner. The alleged agreement has not been admitted by respondent no. 1 and he has challenged the same as forged and fictitious. No proceedings have been initiated by the petitioner to attach validity to the said agreement and this also justifies this Court to draw an inference that the entire story set up by petitioner in this regard is nothing but an imaginary one having no substance or foundation. As such, in the facts and circumstances, and considering the entire order of R.C.E.O., rejecting petitioner's review application dated 30.05.1998, observing that the entire litigation on the part of the petitioner is nothing but gross abuse of the process of law, this Court is satisfied that she also has not come to this court with clean hands.
19. In view of the above, I do not find any reason to interfere. The writ petition is, therefore, dismissed with costs. I quantify the costs at Rs. 25,000/-(Rupees twenty five thousand only).
20. Interim order, if any, shall stand vacated.
Order Date:- 8.8.2012 Anand