Heard learned counsel for the parties and perused on record.
This writ petition has been filed for a writ of certiorari for quashing the order dated 16.08.1999 passed by the revisional court, appended as Annexure no. 7 to the writ petition.
The back ground of the case giving rise to the impugned order is that the disputed accommodation is a part of House No. 91, Church Street, Meerut. It was previously owned by one Sri D. K. Sharma, who had let it out to Sri K. C. Agrawal who vacated the same in December 1978 upon the request made by the then landlord/owner. The Rent Control Inspector conducted a spot enquiry on 05.03.1979 and submitted his report to the effect that the disputed premises was vacant. Accordingly, it was declared vacant by the competent authority vide order dated 06.03.1979.
The petitioner appears to have moved an application dated 06.03.1979, i.e., on the same day on which an order was passed by the Delegated Authority declaring vacancy, for allotment of the disputed premises in his favour. The vacancy was subsequently notified through publication by the then District Supply Officer/ Delegated Authority on 22.03.1979 under information to the then landlord Sri D. K. Sharma also. The order of the notification of vacancy was not challenged by any person and had became final.
After declaration of vacancy, the landlord/owner Sri D. K. Sharma also informed that the District Supply Officer/Delegated Officer, Meerut that Sri K. C. Agrawal, the then tenant, handed over the vacant portion to him on 28.03.1979. The landlord also moved the Delegated Authority requesting for release of the accommodation in his favour account of "personal need". The application for release was rejected by the Delegated Authority vide his order dated 17.12.1979. Thereafter, upon consideration of the applications for allotment moved by the petitioner and other prospective allottees, the Delegated Authority/A.D.M. (E) vide his order dated 17.12.1979 allotted the premises in dispute in favour of one Sri Amar Nath Verma. The application of the petitioner wherein he had stated that he was a resident of village Bhattipura situated near Meerut, was rejected on the grounds that his need was neither genuine nor bonafide. Subsequent thereto order of allotment in Form-B was issued in favour of Amar Nath Verma treating the accommodation in dispute to be vacant but it was not occupied by the said allottee.
From a perusal of the records it appears that the petitioner without any allotment order entered the accommodation in dispute, illegally and unauthorizedly and filed Revision No. 588 of 1979 challenging the order of allotment dated 17/18.12.1979 in favour of Amar Nath Verma.
It appears that the then landlord/owner Sri D. K. Sharma in compelling circumstances execute a registered sale deed dated 29.01.1992 in favour of Smt. Santosh Rani Sachdeva who has been arrayed as respondent no. 2 in the present writ petition.
The revisional court before whom only validity and correctness of the allotment order was challenged, allowed the revision by setting aside the order of allotment dated 17.12.1979 remanding the matter back to the Delegated Authority for reconsideration of the question of allotment a fresh.
The present landlady Smt. Santosh Rani Sachdeva, respondent no. 2 then moved an application in April 1994 before the Delegated Authority under Section 16 (1) (b) of the U.P. Act no. 13 of 1972 for release of the accommodation in dispute on the ground that it was legally vacant and that it was only the order of allotment dated 17.12.1979 which was set aside in revision No. 588 of 1979 filed by the petitioner and 'Not' the order declaring and notifying the vacancy which was left intact and undisturbed.
On the application for release of the present land lady, a report was called for from the Rent Control Inspector who after complying with the provisions Rule 8 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972, submitted his report on 14.06.1994 (appended as annexure no. C.A.-8 to the counter affidavit) to the effect that petitioner was an unauthorised occupation in the accommodation in dispute since 1979. He also reported therein that the petitioner had failed to furnish any receipt from the landlord, as evidence or proof or any other document to establish that he was in legal occupation of the accommodation in disputed. After exchange of affidavits and hearing the parties, the District Supply Officer/ Delegated Authority, Meerut rejected the application of the present landlady, respondent no. 2 vide order dated 02.05.1996 holding that the disputed premises was not vacant as the petitioner was in occupation of the same since before 5th of July 1976.
Aggrieved by the aforesaid order dated 02.05.1996, Revision no. 142 of 1996 was preferred by the landlady respondent no. 2, under Section 18 of the U.P. Act No. 13 of 1972, Smt. Santosh Rani Sachdeva Vs. Narendra Singh. The revision was allowed vide order dated 16.08.1999 setting aside the order dated 02.05.1996 passed by the Delegated Authority, Meerut.
Learned counsel for the petitioner has submitted that the petitioner is an not unauthorised occupant as he had tendered rent of Rs. 250/- per month to the previous land lord Sri. D. K. Sharma which was accepted by him as such his tenancy is deemed to be regularized under Section 14 of the Act. He further argued that since his tenancy had been regularized by the erstwhile landlord, there is no vacancy in the accommodation in dispute and as such findings recorded by the revisional court are illegal, arbitrary and against the material on record.
The last argument advanced by learned counsel for the petitioner is that the revision itself was not maintainable against the order declaring no vacancy and as such the impugned order passed by the revisional court is liable to be set aside.
Per contra, learned counsel for the respondent has submitted that apart from the facts which have been narrated above, a mention may be made on the fact that the petitioner also filed a Civil Suit No. 389 of 1995, Narendra Singh Vs. Santosh Rani Sachdeva for injunction against the respondent, praying that she may be restrained from being dispossession by force from the accommodation in question. The trial Court while deciding the application for ad-interim injunction thereunder held in its order dated 10.11.1995 that the land lady had proved that the plaintiff/petitioner had not been occupying the premises in dispute on 05.02.1976 and that the exact date about the occupancy of the accommodation in question is not on record but it has been proved from documentary evidence that the plaintiff/petitioner was in its possession since 1979. He submits that the Revisional Court has rightly come to the conclusion holding that the District Supply Officer /Delegated Authority had no jurisdiction to re-open the question of vacancy which had become final as far back as 1979 itself on allotment of the accommodation in dispute to Sri Amar Nath Verma and that the petitioner had failed to adduce any evidence to substantiate his claim that he legally came in possession of disputed accommodation since prior to 5th of July 1976. It was further held by the revisional Court that the petitioner had neither produced any order regularizing his tenancy under Section 14 of the Act nor had produced any order of allotment of the accommodation in question in his favour after the year 1979 and as such his status was determined to be that of an unauthorised occupant. It is the aforesaid order dated 16.08.1999 passed by the Revisional Authority, which is impugned in the present writ petition.
After hearing counsel for the parties and on perusal of the record, the following facts appears to be admitted facts on record:
The petitioner had moved an application for allotment of the accommodation in dispute stating that he was a resident of village Bhattipura situated near Meerut as such he could not have been r esiding in the premises in dispute prior to 03.03.1979. The release application of the then landlord was rejected by the authority concerned and the accommodation in dispute having been declared vacant, was allowed to Sri Amar Nath Verma vide order dated 17.12.1979. Therefore, the petitioner also cannot be said to be in occupation up to that date. The order dated 22.03.1979 declaring vacancy of the house in question was published by the D.S.O. /Delegated authority under notice to the then landlord Sri D. K. Sharma. This order was not challenged by the petitioner or by any other person/prospective allottees and had attended to finality. Information about the vacancy was to be notified by the then landlord Sri D. K. Sharma to the prescribed authority on 28.03.1979 and his application for release was also rejected vide order dated 17.12.1979. Since the allotment order in favour of Sri Amar Nath Verma was issued on 17.12.1979, the petitioner could not have claimed to have been residing in that accommodation in question till then as allotment was made after declaration of vacancy of disputed accommodation. The petitioner also has not anywhere challenged the allotment order that he had been occupying the accommodation in dispute and there is no vacancy.
From the aforesaid admitted facts, it is apparent that petitioner had entered the accommodation in dispute after allotment of the accommodation in dispute to Sri A. N. Verma and thereafter had filed a Revision No. 588 of 1979, Narendra Singh Vs. Amar Nath Verma (Supra) wherein he only challenged the order of allotment to Sri A. N. Verma and not the order declaring vacancy in the accommodation in dispute which sufficiently proves that he was an unauthorized occupant in the accommodation in dispute.
The fact that there was a vacancy which is apparent from the record that allotment order of Sri A. N. Verma as well as from the report of the Rent Control Inspector which had been submitted after applying Rule 8 Sub-clause 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. Thus the aforesaid admitted facts appears to have been conveniently overlooked by the District Supply Officer/ Delegated Officer who rejected the application of landlady respondent no. 2 by holding that the disputed premises was not vacant as the petitioner was in its occupation since 5th July, 1976 is perverse and against the material on record.
Admittedly, according to his own admission, the petitioner had not filed any evidence with regard to his possession of the accommodation in dispute prior to 1979 hence the Delegated Authority committed an error in law as well as apparent on face of record in holding that there was sufficient evidence by the petitioner to prove his possession since 5th July, 1976. Even if, it was found by the Delegated Authority that petitioner was in possession of the part of the premises of the landlord it could not have been by any stretch of imagination, said not to be an illegal and unauthorized occupation by the petitioner/tenant.
In the admitted facts and circumstances of the case the Act no. 13 of 1972 had already been enforced and its provision were applicable as well as the fact that proceeding for allotment had taken place under the said Act could not been disputed by any of the parties. In these circumstances a tenant can only occupy the building by allotment or by regularization of tenancy under Section 14 of Act. For ready reference, Section 14 of Act NO. 13 of 1972 is quoted below:
" Where any building about to fall vacant is allotted or released under Section 16 (1), proceedings for putting the allottee or the landlord, as the case may be, in possession shall be taken by the District Magistrate only after the building has actually fallen vacant or is held by him through an inquiry conducted in that behalf to have fallen vacant and an order in Form C shall be served upon the person or persons found in unauthorised occupation of the building directing him or them to vacate the same and deliver vacant possession thereof to the person named in the order within such period as may be specified in the order, which s hall in no case be less than a week from the date of service of the order upon him, and on his failure to comply with the order within the time allowed, the District Magistrate shall issue an order to the officer-in charge of the Police Station in Form D directing him to get the building vacated and to put the allotted or the landlord in possession of the building."
A perusal of the aforesaid provision shows that for regularization of a tenancy, the tenancy should be in accommodation with the consent of the landlord immediately before the commencement of the Act. In the instant case neither the petitioner was a tenant from the date prior to the commencement of the Act nor was a legal tenant within the meaning of Section 2-A of the Act. His tenancy cannot be deemed to be regularized merely because after allotment of the accommodation to Sri Amar Nath Verms, who did not occupy the same, petitioner took illegal possesson of it and claimed to have paid rent to the erstwhile landlord Sri D. K. Sharma @ 250/- per month for about 4 years till purchase of the house by the present landlady.
The fact that petitioner came into occupation after allotment order in favour Sri A. N. Verma in 1979 who did not occupy the portion alloted to him, there was ample evidence for the Revisional Court to hold that the accommodation in dispute was vacant up to 1979. Particularly when the petitioner could not prove his legal occupation/tenancy of the accommodation in dispute.
It may be noticed that the petitioner in his allotment application had stated that he was resident of village Bhattipur a town situated at near Meerut, which undisputedly proves that petitioner was an unauthorized occupant from 1979 and was never residing in it prior to the date from 5th July, 1976 or prior to that date he has been residing in the said accommodation for more than 32 years now, without any actual payment the landlady/tenant claims to have deposited much less than amount as rent @ Rs. 250 per month for the accommodation in his possession consisting of two rooms since the purchase of the building by the present landlord who does not recognize him as her tenant.
In so far as the question of maintainability of revision no. 142 of 1996 is concerned suffice it to say that the Delegated authority by its order dated 02.05.1996 had rejected the release application of the petitioner under Section 16 (1) (b) of the U.P. Act no. 13 of 1972 and as such the revision was maintainable.
In view of the checkered history of litigation enumerated above to treat an unauthorized person as tenant and confer upon him such status, whose tenancy cannot be regularized even under Section 14 of the Act, would be against all norms and sense of justice. If such unauthorized persons are allowed to have their way the very purpose and object of this beneficial piece of legislation would be frustrated.
The petitioner who has since died has been substituted by legal heirs and representatives. They also have no right, much less any legal right, to remain in the accommodation in dispute because no legal right vested in the petitioner as tenant whom now they have substituted. The petitioner shall therefore pay the arrears of rent with interest calculated thus :
In the circumstances, while dismissing the petitioner, this court therefore deems it fit an proper to impose exceptional cost upon such a person who has been residing in the accommodation as unaughorized occupant by a trespasser into it since 1979 as per record. However, as the petitioner has come into possession pursuant to the sale deed dated 29.01.1992, it would be proper to direct the petitioner to pay panel and deterrent damages from first of February 1972 for use and unauthorized occupation of the building. In this regard, considering the guideline given by the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India reported in A.I.R. 2005 SC 3353, It has held thus:
"So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Court or to raise frivolous and unnecessary issues. Costs should invariably on one issue of point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
The amount due @ Rs. 250/- per month w.e.f. 01.02.1992 up to 1st February, 2011 comes to about Rs. 57,000/- Rental value, inflation and the factors enumerated in the judgment of Salem Bar Association (Supra) are to be taken into account for imposition of cost. In the facts and circumstances of the case the rate of rent compensation which would be appropriate cost upon the petitioner to meet the ends of justice is ascertained at 3 times of the arrears of rent payable aforesaid, i.e. Rs. 57,000 X 3 = Rs. 1,71,000/-.
It is further provided that if the petitioner fails to pay all the amounts with interest including arrears of rent and cost etc. as provided him in the judgment within three months from today, the same shall be recovered as arrears of land revenue from him and paid to the landlord within four months thereafter but rate of interest in that event shall be changed @ 9% compound interest with quarterly rent.
This petition is accordingly dismissed with direction to pay arrears of rent with interest and costs as aforesaid. However, if the amount which he may have deposited in court towards rent may be adjusted by him from total rent & cost, i.e., Rs. 57,000/- + Rs. 1,71,000/-, with interest payable by the tenant to the landlord under this judgment.
Order Date :- 11.2.2011 YK