Heard Sri Arvind Razdan, learned counsel for the petitioner and Sri Kabir Ahmad Khan, assisted by Sri Anurag Srivastava, learned counsel for opposite party no. 3.
Opposite party no. 4 is the landlord who has neither disputed the petitioner's tenancy nor participated in the proceedings from the very inception and for this reason, notice to opposite party no. 4 was dispensed with.
The petitioner claims to be a tenant of the disputed residential accommodation situated on the second floor of the building known as house no. 332/127, Chowk Road, Opp. Hina Market, Lucknow which comprises of three rooms, kitchen, latrine and bathroom and one mumty elevation on the terrace inclusively.
The record reveals that an application in the prescribed form-A was filed by opposite party no. 3 before the Prescribed Authority i.e. Rent Control & Eviction Officer (hereinafter referred to as R.C. & E.O.) on 25.5.2015 under Section 16(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred as the U.P.R.C. Act). The opposite party no. 3 in the release application so filed indicated the accommodation in question to be a deemed vacancy and without disclosure of any standard/market rent as required in the prescribed format under item-15, the prayer for allotment of the same at a monthly rent of Rs. 1500/- was made before the R.C. & E.O. The proceedings on the said application appear to have commenced on 26.5.2015 when the Tehsildar (Judicial) was directed to inspect the premises, who after due notice to the petitioner (tenant) submitted a report on 30.7.2015. The inspection report clearly mentioned the building in question to be occupied by the petitioner and it further mentioned that the petitioner had initially entered into possession of the disputed accommodation as tenant on payment of a monthly rent of Rs. 2000/- in the year 2002, but at the time of inspection, the same was let out to him on a monthly rent of Rs. 5000/- for which there existed a lease deed executed on 23.2.2012.
The petitioner on attaining the knowledge of release proceeding filed his preliminary objections before the R.C. & E.O. on 28.10.2015 wherein he took a stand that the building in question was outside the purview of U.P.R.C. Act for the reason that the rate of monthly rent was Rs. 5000/-, therefore, by virute of Section 2 (g) of the Act, the accommodation was exempted.
It appears that R.C. & E.O. proceeded on the basis of release application filed by opposite party no. 3 (prospective allottee) and having regard to the documentary evidence of house tax assessment of the year 1976 submitted by him, an order was passed on 6.1.2016 whereby the residential accommodation was treated to be a deemed vacancy under Section 12(1)(b) of U.P.R.C. Act. It is to be noted that the R.C. & E.O. did not make any determination of monthly rent in the order so passed.
Since the accommodation was proposed to be allotted in favour of opposite party no. 3 irrespective of any preference envisaged under Rule 11, as such, the petitioner filed detailed objections before the R.C. & E.O. on 1.2.2016 wherein the stand put forth by the petitioner is two-fold. Firstly, that the rent paid to the landlord as on the date of submitting the release application was Rs. 5000/- per month; secondly the accommodation which was a subject matter of allotment was constructed after the year 1985. It is on these two grounds that the petitioner objected that the disputed accommodation was exempted from the purview of the Act.
Both the parties, namely, petitioner and the opposite party no. 3, appear to have participated in the proceedings under Section 16(1)(a) in the backdrop of the facts mentioned above. The case of opposite party no. 3 put forth before the R.C. & E.O. was to the effect that since the disputed premises by virtue of its house tax assessment in the year 1976 by the Municipal Board was covered within the scope of U.P.R.C. Act, therefore, in absence of a valid allotment order under Section 11 of the Act passed in favour of the petitioner, it was liable to be treated as a deemed vacancy, hence the prayer for allotment.
The petitioner in reply thereto contested on the basis of pleas as aforesaid and plea of rent was sought to be established on the basis of rent receipts and the lease deed which were filed alongwith the objections. The landlord who was not called upon by any notice remained dormant.
The R.C. & E.O. having regard to the rival claims set up by the parties, initially notified the vacancy on 6.1.2016 and thereafter proceeded to allot the accommodation in favour of opposite party no. 3 by passing a detailed order on 14.3.2016. The orders passed by the R.C. & E.O. were assailed by the petitioner under Section 18 of U.P.R.C. Act by filing Revision No. 6/2016. The Revision filed by the petitioner was duly contested by opposite party no. 3 before the Additional District Judge, Court No. 1, Lucknow.
The revision filed by the petitioner after hearing the parties was finally rejected by means of the impugned judgement rendered on 11.7.2018.
The present petition filed under Article 227 of the Constitution of India has arisen out of the revisional court judgement rendered on 11.7.2018, as contained in Annexure-1 to this petition.
The opposite party no. 3 had filed a caveat, as such, notices of the petition were served upon him. The opposite party no. 1 and 2 are represented by the State. Parties were heard at length.
Sri Arvind Razdan, learned counsel for the petitioner has argued that the two pleas advanced by the petitioner before the R.C. & E.O. i.e. on the aspect of rent being Rs. 5000/- per month and building having been constructed after the year 1985 both have completely escaped the attention of the R.C. & E.O. and remained unconsidered by the courts below. According to the learned counsel, both the courts below fell in error by not considering the two-fold objections raised by the petitioner and thus, the orders impugned suffer from a manifest error of law.
Argument put forth by learned counsel for the petitioner is that it is mandatory on the part of the R.C. & E.O. to determine the rate of monthly rent of a building at the time of notifying a vacancy or at least before making allotment of an accommodation in favour of any prospective allottee without which ousting a lawful occupant shall stand in gross violation of law. It is also argued that the plea of life of the disputed additional construction has also remained unconsidered by both the courts below and thus, the error which the impugned orders suffer from is apparent on the face of record.
Sri Kabir Ahmad Khan, learned counsel for opposite party no. 3 refuting the arguments advanced by learned counsel for the petitioner, has argued that R.C. & E.O. on the basis of house tax assessment has clearly found house no. 332/127 in existence ever since the year 1976 of which the accommodation in question is a minor part. Once the existence of the building constructed in the year 1976 was proved beyond doubt, the exemption of the building by virtue of Section 2(g) of U.P.R.C. Act would have no bearing on the release application particularly when there was no valid allotment under Section 11 of the Act in favour of the petitioner. According to him only a valid allotment by the competent authority would save the disputed accommodation from being declared as deemed vacancy. Moreover, the accommodation in question being a minor part of the existing structure was short of an independent identity for the purposes of ascertaining the life of disputed accommodation, therefore, once the main building came within the purview of the Act after ten years from the date of its first assessment in 1976, the plea of additional structure was inconsequential.
The argument in nutshell is to the effect that the amendment of the Act made w.e.f. 26.9.94 inserting Section 2(g) is operative prospectively meaning thereby that any building which fell within the regulation of the Act would always be governed under the Act so long as the release order or a valid waiver of protected tenancy under the Act does not take it away from the purview of the Act. To support his arguments learned counsel for the opposite party no. 3 cited the following decisions but none of them deal with the real controversy involved in the present petition.
Sl.
Particulars Citation
1. Geep Industrial Syndicate Ltd. Allahabad v. The Rent Control and Eviction Officer Allahabad and others 1982(1) ARC 585
2. Jaswant Singh v. Additional District Judge, Dehradun and others 1993 (2) ARC 91
3. Jagdish v. District Judge, Kanpur Nagar and others 2002(1) ARC 327
4. Jagannath Sahay Verma and another v. R.C. & E.O. (II) Allahabad and others 2001(2) ARC 149
5. Harish Tandon v. Additional District Magistrate, Allahabad, U.P. and others 1995(1) ARC 220
6. Siddhartha Vyas and another v. Ravi Nath Misra and others 2015 (2) SCC 701 The two dimensional question that crops up for consideration firstly is whether the tenancy of residential accommodation as claimed by the petitioner in absence of an allotment order under Section 11 of the Act was valid and secondly whether the waiver of the secured tenancy regulated under the Act prior to 23.2.2012, if any, is against the purpose of law affecting public policy.
This Court has no doubt that right to enter into a contract freely is fundamental in a civilised society and it is this right which is the foundation of public policy in a free liberal economy driven on the wheels of democracy. The inequality of individuals and the lack of conditions of equal bargain is the premise which constantly threatens this right, resultantly, the courts assume the jurisdiction of interpretation not only of law but the public policy underlying therein.
This Court would note that the legislative competence of the State to regulate buildings in urban areas flows from list II entry 18 of the Seventh Schedule appended to the Constitution of India partly to serve the object of Article 21 of the Constitution of India which guarantees right to dignified life, apart from the object of social justice. Indian democracy even after nearly seventy years of independence is struggling for fulfillment of human rights like Roti, Kapda aur Makaan. It is in the pursuit of this object that tenancy laws have been promulgated to regulate buildings in urban areas. The two relevant considerations which bring a building within the fold of the Act are (a) life of the building from the date of its construction; and (b) the rate of monthly rent. Both the conditions are regulated and well defined.
For regulation of a building in terms of its life reference may be made to Section 2(2) of the Act which clearly postulates some conditions and one of the conditions in the second proviso appended to Section 2(2) is completion of construction on or after 26.4.1985 and such a building would only come under the purview of the Act after 40 years from the date its construction was completed. It is in view of this provision that the plea of the petitioner as regards additional construction having been made after the year 1985 became significant. The other condition which is more vital is the rate of monthly rent not exceeding Rs. 2000/- by virtue of Section 2 (g) which for ready reference is quoted below:
"2. Exemptions from operation of Act.--(1) Nothing in this Act shall apply to the following, namely:--
(a) ..........;
(b) ...........
(bb) .........
(bbb) .......
(c) ...........
(d) ..........
(e) ..........
(f) ............
(g) any building, whose monthly rent exceeds two thousand rupees"
The Court would note that the orders passed by the Prescribed Authority as affirmed by the revisional court on the aspect of life of construction have relied upon the house tax assessment of the existing structure in the year 1976. A building constructed after the enforcement of the Act and prior to 26.4.1985 would fall within the purview of the Act soon after the lapse of 10 years from the date of completion of its construction. Thus, according to the Prescribed Authority, the house tax assessment was sufficiently indicative and conclusive proof of the building being in existence in the year 1976, thus the same fell within the purview of the Act ever since the year 1986. The additional construction which is the subject matter of dispute not being a major part would not affect the identity of the building, hence the plea on the aspect of life of disputed accommodation which according to the petitioner was constructed after the year 1985, was completely ignored. The assumption within the scope of the regulatory provisions contained in Section 2 (2) of the Act having regard to the size of additional construction, may be valid but the objection raised by the petitioner was not considered. The ground urged nevertheless may not tilt the fate of the case in favour of the petitioner for lack of leading convincing evidence, therefore, non consideration of the plea, definitely may reflect upon the application of mind by the Prescribed Authority yet the objection raised for want of evidence is bereft of any merit and of no legal consequence. Sri Kabir Ahmad Khan, learned counsel for the opposite party, drawing attention of the Court to the explanations appended to Section 2 (2) of the Act, has made a successful attempt to defend the impugned orders on the above aspect due to lack of evidence filed by the petitioner but the submissions put forth to justify the impugned orders qualify the validity only in part.
Even if it is assumed that the residential accommodation in question was covered under the regulation of the U.P.R.C. Act, yet the two-fold question framed above assumes significance and calls for an answer by this Court.
This Court may not overlook the fact that the present controversy has arisen between the existing tenant who claims his rights on the basis of lease deed dated 23.2.2012 and the prospective tenant who had made the application for notification of deemed vacancy under the Act and allotment simultaneously on 25.5.2015. It may not be wrong to say that the proceedings of notification of deemed vacancy were set in motion on the application of opposite party no. 3 in form-A. The statute confers powers upon the Prescribed Authority to register a deemed vacancy within the scope of Section 12 which reads as under:
12. Deemed vacancy of building in Certain cases. - (1) A, landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof if-
(a) he has substantially removed his effects therefrom, or
(b) he has allowed it to be occupied by any person who is not a member of his family, or
(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
(2) In the case of a non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
(3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy :
Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.
(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2) , or sub-section (3), shall, for the purposes of this Chapter, be deemed to be vacant.
In order to facilitate ascertainment of a deemed vacancy, the procedure is prescribed under Rule-8 of the Rules framed under the U.P.R.C. Act, which is extracted below:
"8. 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 like to fall vacant, get the same inspected by a Gazetted Officer.
(2) The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from the 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 meantime 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 may adduce."
In the present case, the deemed vacancy when looked at from the contents of report submitted by the Tehsildar (J) would make two things very implicit. Firstly, the petitioner was found in occupation of the accommodation as a tenant on a monthly rent of Rs. 5000/- and secondly, the petitioner had waived her protected tenancy by entering into a lease for payment of monthly rent at the rate of Rs. 5000/- in the year 2012. It is for this reason that the court has understood the controversy to be of a description culled out hereinabove while setting out the two dimensional question.
Insofar as the legitimacy of petitioner's tenancy is concerned, essentially it is a contract of which every individual or juristic person has a right to enter but a contract of lease in relation to an accommodation governed under the Rent Control Act stands on a different footing. There are safeguards firstly on the aspect of monthly rent which is not to exceed Rs. 2000/- and secondly, a tenant having the regulatory protection under the Act cannot bind and preclude the Prescribed Authority under a sham agreement to step into the determination of monthly standard/market rent of a premises for restoring the same to be within the purview of the Act. This authority vested in the Prescribed Authority is aimed to subserve the cause of shelter for homeless/needy registered under the Act. Since the whole object of the Act is to balance the interest of homeless and needy vis-a-vis the landlord, therefore, legitimacy of petitioner's tenancy, the question is taken up first.
This Court has no doubt about the freedom of an individual to opt for rental accommodations on a monthly rent ranging from Re. 1/- to any amount but a contract of lease in respect of buildings regulated under the Rent Control Act is always subject to scrutiny by the Prescribed Authority. Whenever the protected right of tenancy is waived by an existing tenant, the rights of homeless/needy who are registered for allotment under Rule 10 & 11 of the Rules framed under the Act come into play and bona fides of such waiver touching upon the purpose of law becomes relevant. This waiver once found mala fide or unlawful on the aspect of monthly rent in respect of an accommodation falling within the purview of the Act, would terminate the creation of lease hold rights for the reason that a sham agreement between the landlord and tenant shall not be binding upon the Prescribed Authority. The law would permit him to declare the vacancy notwithstanding any agreement entered into by the landlord and tenant inflating the real monthly rent contrary to law. The rights of prospective applicants shall have to be judged as per the priorities fixed under Rule 11, subject to the preferential right of the landlord for release under Section 16(1)(b). Thus, any person occupying a building on rent regulated under the Act, is a valid tenant irrespective of an allotment order under Section 11 but waiver of protected tenancy would oust a person from his lease hold rights once the lease agreement is established mala fide or unlawful on the aspect of quantum of monthly rent. The real test of this principle is decisively provided in the mechanics of Section 8 of the Act which reads as under:
8. Disputes regarding amount of standard rent, etc. - (1) Where a dispute arises with regard to the amount of the standard rent or to the amount of enhancement in rent permissible under section 5 or section 6 or to the date with effect from which such enhancement shall take effect, or to the amount of taxes payable by the tenant under section 7, or to the amount of proportionate rent payable by the tenant after a part of the building or any land appurtenant thereto is released under section 16 or section 21, or to the amount at rent payable by the original tenant for the new building allotted to him under sub-section (2) of section 24, the District Magistrate shall, on an application being made in that behalf, by order determine such amount.
(2) Where the assessment of a building occupied by a tenant is lower than the agreed rent payable therefor, the District Magistrate, on an application of the tenant or of his own motion, may, after giving to the landlord an opportunity of being heard, direct the local authority concerned to enhance the assessment in accordance with the agreed rent with effect from the date from which the agreed rent has been payable or the date of commencement of this Act, whichever is later, anti thereupon, notwithstanding anything contained in the law relating to that local authority, the assessment shall be corrected accordingly.
(3) Every order under sub-section (1) or sub-section (2) shall, subject to the result of any appeal preferred under section 10, be final."
The regulation of buildings under the Act has a dimension of payment of house tax. The authority to determine monthly standard/market rent in the eventuality of waiver of protected tenancy has clear objects. The object is to allow the capitalistic freedom of the landlord remain in force within the scope of competitive advancement. This freedom in its normal course, enhances the house tax income of the State which is responsible for maintaining the basic amenities of water, sewer, electricity, roads, cleanliness and good environment. On this analogy the waiver of the protected tenancy must visit the landlord with enhanced liability of house tax but the authority exercisable by the Prescribed Authority to probe into the bona fides of such agreement in the pursuit of the object to provide shelter to the homeless/needy does not stand ousted. Such an understanding of law would alone fulfill the promise which the sovereign State holds to the homeless/needy citizens for securing the right to shelter and dignified life in reality.
"Swachh Bharat" is a dream of every citizen and it must trammel into law and public policy both. The promise calls for a clear vision defined in the context of Constitution of India and the laws. The policy of the State "Swachh Bharat" is a farce until the regulation of buildings in urban/rural areas within the State meets three basic essentials equitably viz. a) the capitalistic freedom of landlord; b) the object of shelter to homeless/needy and; c) the revenue for maintenance of basic amenities under a self sustained economic system. The State of U.P. even after a lapse of nearly 46 years since the enforcement of the Act No. 13 of 1972 has made no accountable contribution on any of the above objects of the law which has miserably shattered the policy of "Swachh Bharat". The State must avoid taking of debt from financial institutions and evolve the mechanism of self sustained economy in order to be accountable. Every government is duty bound to publish/circulate a blueprint of the measures that it intends to undertake at the interval of every five years towards planned development otherwise, the object of the list of homeless/needy citizens drawn in terms of Rule 10 and 11 would never be reality within the purpose and objects of law. Time is not far when the issue of shelter would impede every other activity like social orders, education, health and public services for the lack of administrative vision and viability to manage congestive traffic with the growth in population. The resultant issues for Roti and Kapda are already prominent.
Now coming to the case at hand, this Court has already held that the lease agreement entered into by the petitioner is valid so long as the same is not held invalid on the parameters discussed above. On such an aspect, this Court is fortified by a judgement rendered by the apex court reported in (1974) 2 SCC 477 of which para 17 reads as under:
"17. Now, the landlord and the tenant cannot, by their agreement bind the District Magistrate. In spite of the lease, the District Magistrate may treat the accommodation as vacant and evict therefrom the tenant who is in occupation of the accommodation without an allotment order. This is his statutory obligation But the appellants would be estopped from denying that the respondent is a tenant. The Act makes a distinction between a tenant by virtue of an allotment order and a tenant otherwise than by virtue of an allotment order. In most of the sections of the Act the word 'tenant' alone is used. If the word 'tenant' in s 3 is construed as "tenant under an allotment order", then the tenants who have been occupying an accommodation without an allotment order will be deprived of several material privileges conferred upon them by the Act Having regard to the definition clause and the scheme of the Act, we are of opinion that the respondent is a tenant under Section 3 even though he is occupying the accommodation without an allotment order It follows that the respondent would get the protection under Section 3 and that the appellants' suit was, therefore, liable to be dismissed as it was found that it was instituted without the permission of the District Magistrate."
The impugned orders lack application of mind on the vital aspects of the rights of existing tenant viz-a-viz the landlord. The standard monthly rent unless determined by the Prescribed Authority to be not exceeding Rs. 2000/- would thus not bring the building/accommodation within the fold of the Act, therefore, in absence of the mandatory exercise of determination of monthly rent, the vacancy was neither open to be notified nor liable to be allotted during the currency of existing tenancy.
There is yet another judgement rendered by this Court reported in 2001 (2) ARC 488 (Milap Chandra Jain and others v. State of U.P. and others) which none of the parties has cited but has come to the notice of this Court. It is evident from the judgement (supra) that Section 3 (k), 4 (2), 5, 6, 8 and 9 were declared ultra vires by this Court. The said judgement was held per incurium and not a good law in a Division Bench judgement reported in 2014 SCC Online Allahabad 4997 (Neena Jain & others v. State of U.P. & another) [equivalent citation 2014 (10) ADJ 413]. The conclusion of the present petition even taking into consideration the correct view by Division Bench remains unaffected, rather the freedom of waiving the protected/secured tenancy rights would stand recognised as an exception and the purpose and object of the regulatory laws would thus not suffer a set back. For this reason, independent reasoning has been recorded hereinabove so as to interpret the relevant provisions harmoniously in order to serve the object of legislation.
Before parting, this Court would expect the Chief Secretary, Government of U.P., to direct all the district authorities for drawing up the districtwise lists of buildings as well as categorywise lists of persons as per the provisions of the Act and Rules framed thereunder. The name of opposite party no. 3 herein may also be included in the appropriate list drawn in terms of Rule-11 by the prescribed authority. The lists so drawn may be uploaded on the official website for wide publicity so that the basic rights of the homeless/needy citizens for shelter are not curtailed due to launch of incumbersome clean India projects sacrificing the right to dignified life guaranteed under Article 21 of the Constitution of India. The Court has, however, no hesitation to put on record that the social consciousness of building the nation i.e. "Swachh Bharat" is commendable. Therefore, every lease agreement entered into between the landlord and tenant in respect of all the accommodations must be registered with the municipal corporation or defined local bodies for assessment of taxes against the landlord. The buildings used for commercial purpose deserve to be made accountable likewise.
This direction is necessary for the reason that in our country 'Bharat' the income of an individual up to Rs. 2.5 lakhs is exempt from income tax. The registration of tax payer on this scale is a meager population in the country, meaning thereby that Bharat has a population largely comprising of citizens living below poverty line. It is better to wake up on the yardstick of our annual income and liability so as to streamline the laws. The tax payer cannot be charged for unplanned development and unrealised overgrowing population for the reason that such a feature would defeat the establishment of self-sustained institutions and would orient the system towards debt oriented economy. Resultantly, the country would march towards economic slavery contrary to the rule of law. This Court would hope that legislative organ of the State makes an earnest effort to address the real issues. Publicity through print, electronic and digital media needs to be instead attracted for awareness on higher ideals rather than reckless criticism invading upon the security to live a dignified life as guaranteed under Article 21 of the Constitution of India.
For the reasons stated above, the writ petition is allowed and the impugned orders dated 6.1.2016, 14.3.2016 as well as 11.7.2018 and the consequential action, if any, are accordingly set aside.
No order as to cost.
Let a copy of this judgement be forwarded to the Chief Secretary, Government of U.P. for necessary consideration as well as to the Secretary, Ministry of Urban/Rural Development, Government of India.
Order Date :- August 29, 2018 Fahim/-