1. Heard Sri Rahul Sahai, learned counsel for the petitioner and Sri S.C.Pandy and Sri Lal Ji Tripathi, Advocates for respondent No.2.
2. The writ petition is directed against the order dated 21th July, 1998 passed by Rent Control and Eviction Officer/City Magistrate, Mathura (hereinafter referred to as "RCEO") rejecting petitioner's application dated 10th September, 1995 and holding that there is no vacancy in the premises in dispute.
3. The dispute relates to House No.333 Dampier Nagar, Mathura (hereinafter referred to as "disputed accommodation). It is admittedly a residential building. It was under the tenancy of Mrs. Elsie Verma and Dr. Shyamvir Singh Verma. Earlier it was owned by Dr. Sundar Swaroop Bhatnagar and Mahendra Swaroop Bhatnagar. The property was succeeded by legal heirs of aforesaid erstwhile two owners and therefrom it was purchased by Rajeev Varshney (petitioner) along with his brother S.K.Varshney vide sale deed dated 29th May, 1986.
4. Alleging that tenants Mrs. Elsie Verma and her husband Dr. Shyamvir Singh Verma have shifted to Germany long back and the premises is unauthorizedly occupied by one Ramesh Babu Singh and therefore, there has caused a vacancy in the disputed accommodation, an application was filed by petitioner on 11th September, 1995 to declare the disputed accommodation "deemed vacant" under Section 12 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972"). The petitioner also filed an affidavit in support of his claim.
5. The RCEO directed for inspection of the premises. The accommodation was inspected by Rent Control Inspector (hereinafter referred to as "RCI") and he submitted report on 10.10.1995 with the finding that Dr. Shyamvir Singh Verma and Mrs. Elsie Verma had gone to Germany in 1962 and Sri Ram Babu Singh claiming himself to be a care taker is residing in disputed accommodation. Further outside the gate of disputed accommodation, there was a tin shed room which was occupied by one Chhiddi Ram, a washer man, who claimed to have occupied the premises for the last twenty years.
6. The RCEO issued notices to respondents No.2 and 3 who filed objections dated 11th January, 1996 and 14th March, 1996 (Annexure 5 and 6 to the writ petition). Respondent No.2 Ramesh Babu Singh stated that household and other goods of Dr. Shyamvir Singh Verma and Smt. Elsie Singh Verma are still lying in disputed accommodation and he (respondent no.2) is only a care taker or attorney, looking or maintaining the premises in absence of the aforesaid tenants. He denied any connection with Chhiddi Ram (respondent no.3) alleging that he was occupying premises independently and is not a sub tenant of Mrs. Elsie Singh Verma and Dr. Shyamvir Singh Verma.
7. The respondent No.3 in his objection (Annexure 6 to the writ petition) claimed that he is occupying commercial premises i.e. a shop like room for the last 20-22 years with the consent of erstwhile landlord, late Sri Sunder Swaroop Bhatnagar, on payment of monthly rent of Rs.10/-.
8. The case of respondents no.2 and 3 was disputed by petitioner. He further said that before September, 1995 the respondent no.3 never occupied any part of the premises, inasmuch as, aforesaid construction of tin shed was made in September, 1995 and thereafter was occupied by respondent No.3. His (respondent No.3) contention that he is occupying it for the last 20-22 years was seriously disputed.
9. The petitioner's application, however, was rejected by RCEO vide order dated 21st July, 1998. So far as disputed accommodation and possession of respondent No.2 is concerned, RCEO has said that earlier an application was filed by petitioner along with his brother Sanjeev Kumar Varshney for release of disputed accommodation under Section 16(1)(b) of Act, 1972 which was allowed by order dated 21st August, 1986 whereagainst revision was filed, which was allowed on 3.9.1987 and RCEO's order dated 21.8.1986 was set aside. The matter was remanded whereafter RCEO passed a fresh order dated 11th May, 1989 rejecting petitioner's application for release of disputed accommodation on the ground that no material was placed to show that tenants Smt. Elsie Singh Verma and Dr. Shyamvir Singh Verma have permanently settled in West Germany and removed their entire goods from disputed accommodation, hence it cannot be said that there is vacancy in the premises in question. He said that situation, as was earlier, is still continuing and therefore, the accommodation in question cannot be deemed vacant.
10. The respondents No.4 and 5 have not chosen to file any counter affidavit but respondent no.2 himself has filed counter affidavit. In para 4 thereof he has made an interesting but contradictory statement while denying contents of para 2 of the writ petition, which reads as under:
"But however, it is submitted that Mrs. Elsie Verma and Dr. Shyamvir Singh Verma have no concern with the premises in question actually both are tenants and their house hold and other goods are in existence in the premises and the deponent is simple and care taker or attorney holder who is looking or maintaining the premises in absence of tenant."
(emphasis added)
11. The petitioner in his rejoinder affidavit has placed an order of retirement dated 12th August, 2010 showing that on attaining the age of 54 years, he is liable to retire on 31st August, 2011 from the post of Group Captain, Indian Air Force. Meaning thereby, presently petitioner has already retired from service. In para 11 he has further said that he has vacated Government accommodation and presently is forced to stay in a rented house.
12. There is a supplementary affidavit also sworn by Bhupendera Singh aged about 48 years, son of Ramesh Babu Singh (respondent no.2), who has given his residential address that of the disputed accommodation. This supplementary affidavit has been filed on behalf of respondents no.2, 4 and 5. He has also filed a photocopy of passport of respondents No.4 and 5. It appears therefrom that date of birth of Dr. Shyamvir Singh Verma being 1st September, 1939, he is presently more than 70 years of age. He has visited India four time in 2003, three times in 2004, a single visit in 2005, two visits in 2006-07, two visits in 2008, one visit in 2009, no visit in 2010 and single visit in 2011 and 2012. He is a Research Scientist in the field of Biochemical and Micro Biology and staying in Germany under long term visa which is presently renewed upto January, 2013. His son is staying in Germany.
13. It is interesting to note that in the entire supplementary affidavit it has not been said while respondent no.4 allegedly visited India, he stayed in the disputed accommodation at any point of time.
14. The report of RCI as mentioned in the impugned order of RCEO, shows that respondents No.4 and 5 are in Germany since 1962 i.e. presently for about 50 years and more. Nowhere he has stated as to what kind of household goods, belong to respondents No.4 and 5, are/is still lying in disputed accommodation. So far as the so called care taker, respondent no.2 is concerned, he admits that he and his entire family is residing in disputed accommodation for all purposes. The residential address has been given by respondent no.2 and his son that of disputed accommodation. They are not residing elsewhere except the disputed accommodation. There is nothing on record to show that as care taker, whether respondent no.2 is employee of respondents no.4 and 5 or else in what capacity and in what manner he is there, particularly when it is not his case that he is a relative or family member of respondents no.4 and 5.
15. In my view, RCEO has miserably failed to consider the matter from correct perspective. Once it is shown that tenant has gone out of country for a long time and residing abroad, onus lie upon tenant to show that he/she is still occupying rented accommodation independently and has not removed all their goods therefrom. Except of bare assertion, no material has been placed on record particularly when tenants were out of country for the several decades. In 1995 also, respondents no.4 and 5 were out of country for the last 33 years. It is thus difficult to believe that any household goods of theirs would still be available in the tenanted accommodation.
16. Moreover, claim of respondent no.2 that his is occupying disputed accommodation as a care taker was not fortified or supported by placing anything on record to show in what capacity or manner he was residing in disputed accommodation. The initial burden, in my view, was discharged by petitioner-landlord but respondents tenants have failed to discharge onus shifted upon them to show tenanted accommodation is not "deemed vacant" under Section 12(1)(a) of Act, 1972.
17. It is a very unfortunate case where petitioner-landlord, who was working in defence force and as said has purchased the house in question so as to settle thereat after retirement, is still wandering having no residential accommodation with him and is forced to stay in a rented house after retirement. The conduct of respondents no.2, 4 and 5 is highly deplorable. Unfortunately the RCEO has also miserably failed to discharge his duties in a valid and legal manner.
18. The writ petition is, therefore, allowed. The impugned order dated 21.7.1998 (Annexure 1 to the writ petition) passed by RCEO is hereby set aside and the matter is remanded to RCEO to pass a fresh order in the light of observations made above, and in accordance with law after hearing all the concerned parties.
19. The petitioner shall be entitled to cost. Considering the entire facts and circumstances and long drawn litigation, harassment of the petitioner, I quantify the cost to Rs.50,000/- against respondents no.2, 4 and 5 in equal proportion.
Order Date :- 9.8.2012 KA