Full Judgment Text
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PETITIONER:
TANAUWWAR NABI KHAN
Vs.
RESPONDENT:
RASHIK AHMAD & ORS.
DATE OF JUDGMENT: 08/05/1998
BENCH:
S.C. AGRAWAL, S. SAGHIR AHMAD, A.P. MISRA
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Misra. J,
Leave granted.
The appellant-tenant is aggrieved by the order passed
by the High Court in writ jurisdiction, setting aside the
order dated December 5, 1996 passed by the Additional
District Judge and upholding the order of the Rent Control
and Eviction Officer (hereinafter referred to as ’R.C.O.’)
in a proceeding under U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (hereinafter after
referred to as ’the Act’). Consequently the order made in
his favour was set aside, directing the R.C.O. to dispose of
landlord’s application under Section 18(3) of the Act to put
the parties back in the position which they occupied before
the allotment order.
The disputed premises belongs to one Rashiq Ahmed, a
resident in England, who executed Power of Attorney on his
behalf to Atique Ahmad sometime in the year 1992 who in due
course of management let out the house in dispute to one
Mr. Ansar Hussain on a monthly rent of Rs.700/-. On 1st
August, 1995, he intimated through notice to the R.C.O that
since his business of brass utensils was not doing well he
has decided to vacate the premises by the end of the month.
The appellant’s case is that Antique Ahmad was duly
informed accordingly. On coming to know this the appellant
made an application for allotment of the said premises to
the RCO. On the 4th August, 1995 the said officer declared
through notification that the said house in dispute was
about to fall vacant, hence 16th August, 1995 is fixed for
deciding the question of allotment/release. A copy of this
order was directed to be put up on the Notice Board of his
office and also to be served on the landlord through his
mukhtiar-e-am Antique Ahmad. In the margin of this order
Antique Ahmad signed in token of his presence and service of
the order. It is the case of the appellant that on 14th
August, 1995 he approached the said Antique Ahmad and also
the outgoing tenant, namely, Anzar Hussain. The later sold
his entire machinery installed in the house in dispute to
the appellant for Rs.55,000/- which was duly paid to him on
the same date. This written transaction was with the consent
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of said Antique Ahmad, representative of the landlord. At
the same time an agreement was also executed between the
said Antique Ahmad and the appellant. By that the rent of
the premises in question is increased from Rs.700/- to
Rs.800/- with an advance of Rs.30,000/- to be adjusted in
rent in future. This agreement was filed before the RCO. On
the 16th August, 1995, the RCO allotted the said premises in
favour of appellant by recording that no objection is filed
against the declaration of vacancy. The order recorded only
one application of the appellant has been received with the
consent and agreement of the owner of the premises in his
favour. Further case of the appellant is later, on account
of dishonesty, the said Antique Ahmad in conivance with his
brother Mohd. Athar, on 21st August, 1995, acting on behalf
of the landlord (Rashik Ahmed) made an application under
Section 16(5) of the Rent Control Act for review of the
allotment order. The case set up was that Power of Attorney
in favour of Atique Ahmad was cancelled by Dr. Rashik Ahmed
on 17th November, 1994 and fresh Power of Attorney was
executed in favour of Mohd. Athar on 31st January, 1995. It
is not in dispute that both Atique Ahmad and Mohd. Athar are
brothers.
The case set on behalf of the landlord is that no
notice of the declaration of vacancy or allotment proceeding
was ever given to the landlord before allotting the same. It
is also alleged that the signatures of Atique Ahmad on the
declaration vacancy dated 4th August, 1995 as well as on the
Agreement dated 16th August, 1995 were forged since he has
not signed these documents. But the appellant denied all
this.
In order to prove the signatures of Mr. Atique Ahmad, the
appellant produced one Shri Mahesh Sareena a hand writing
expert. According to his report, the disputed signatures
were in fact those of Atique Ahmad. Mahesh Sareena-the
expert was not called for cross-examination. To rebut the
cancellation of Power of Attorney the contention is that, in
spite of the alleged cancellation of Power of Attorney in
his favour Atique Ahmed continued to receive the rent from
the then tenant Anzar Hussain. On or about 20th October,
1995 an application was filed on behalf of the landlord
under Section 22(f) of the Act for permission to take
photograph of the alleged forged signatures of Atique Ahmad
for examination by the expert. But soon thereafter on 21st
December, 1995 Mohd. Athar, Advocate who was one of the
applicants in the said application made an endorsement that
this application was not pressed. Thereafter, on 19th
January, 1996 RCO reviewed his earlier allotment order by
cancelling the earlier allotment order.
He concluded:-
".....Tanvar Naiv Khan and Anjar
Hussain has jointly taken the
possession whereas after vacating
the said premises, power of
attorney holder (Mukhtaream) should
have been informed, so that he
could give application for release
or could give his consent in regard
to allotment in favour of any side
but nothing of that kind happened
as it is clear from the application
dated 15.8.95 of allottee. After
seeing the said conditions and
after perusing the document, it is
clear that the allotment of
premises in question has not been
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done in accordance with law....."
According to the said order the allotment order was
cancelled on two grounds:
(1) that Mukhtair-e-am should have been informed to so that
he could, if desired, have moved an application for release
or given consent for the allotment,
(2) that allotment order is also bad as appellant has
obtained possession of the premises in dispute prior to
the allotment order.
Aggrieved by the said order, appellant filed revision
before Additional District Judge on 5th December, 1996. The
Appellate Court recorded the following findings:
"So far as the first ground is
concerned it appears from the
impugned order dated 19.1.1996 that
the learned R.C. and E.O. has not
discussed nor came to conclusion
that the finding of the previous
R.C. and E.O. Pannalal, who passed
the allotment order dated 16.8.1995
to the effect that Shri Atiq Ahmad
was the Mukhtar Aam of Dr. Rashiq
Ahmad who had executed rent deed in
favour of Sri T.N. Khan,
revisionist was not based on
material on record and it was
obtained by the allottee by
practising fraud or
misrepresentation upon the R.C. and
E.O.. Therefore, this opinion of
the Ld. R.C and E.O. that Mukhtar
Aam should have been in favour has
no legs to stand. I do not
understand as to how the finding
was recorded that Mukhtar Aam
should have been informed when
there was description in the order
dated 16.8.1995 itself that Sri
Atiq Ahmed was Mukhtar Aam of Dr.
RAshiq Ahmad who and the
revisionist had entered into an
agreement of tenancy. Therefore, in
my opinion, there was no
justifiable reason with the Ld.
R.C. and E.O. to say in the
impugned order dated 19.1.1996 that
Mukhtar Aam was not informed and he
should have been informed...."
So far the question of release in favour of the
landlord which in effect might prejudice him for want of
notice, it is recorded that throughout in the proceedings,
even before the RCO, the landlord has not shown or expressed
any desire to have the release of the premises in his
favour. So far as the second ground is concerned, it was
rejected with the following findings:
"In this respect the allotment
order dated 16.8.95 shows that the
possession of revisionist was with
the consent of Mukhtar-e-Am of
Rashiq Ahmed and this finding is
till intact. Therefore in view of
the finding dated 16.8.95 there
could not have been any occasion
for the R.C. and E.O. to say that
the allotment order dated 16.8.95
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was liable to be set aside as the
revisionist had obtained possession
prior to the allotment order."
Respondent landlord thereafter filed a writ petition in
the High Court challenging this revisional order which was
allowed as aforesaid. Aggrieved by this order the present
appeal is filed by the appellant-tenant. The High Court
mainly relying on the proviso to Section 16(1) of the
aforesaid Act held that it is incumbent on the tenant to
intimate the landlord in terms of the proviso and the
Director Magistrate should have given an opportunity to the
landlord before making allotment order under Section
16(1)(a). It was held that as proviso to Rule 9(3) which
requires that on receipt of the intimation of vacancy the
same must be notified for information of the general public
by pasting a copy of the list of vacant building on the
Notice Board specifying the date on which the question of
allotment is to be considered is mandatory and the District
Magistrate is obliged to issue notice to the landlord. This
is to give an opportunity to the landlord, if he so needs
and desires. The appellant contends the High Court erred in
holding; "In the present case undisputed no notice under
Rule 9(3) was issued nor the procedure laid down in Rule
8(2) was followed." Consequently further finding that the
landlord was not awarded with any opportunity is also not
sustainable. The bone of contention for the appellant is all
the procedure as contemplated under the Act and Rules were
followed. The vacancy was declared after following all what
was required under the law, which is also evident from the
said notification dated 4th August, 1995 revealing that
intimation was sent to the landlord Dr. Rashiq Ahmed through
his power of attorney holder Shri Atique Ahmad and the same
was also pasted on the Notice Board. This apart, the consent
is also on record given by the said Atique Ahmed. He, in
fact, participated initially in the proceedings before the
Rent Control and Eviction Officer even prior to the review
application. This is revealed by his signatures which he put
on the Courts record. Further if power of attorney was given
in place of Atique Ahmed to Mohd, Athar in January 1995, the
respondent would have shown by any document or evidence, any
demand of rent by the said Mohd. Athar from the erstwhile
tenant of the appellant after January 1995. On the contrary,
Atique Ahmad continued to collect the rent and conducted
himself on behalf of landlord as late as 16th August, 1995
which is on the record of this case. Further even if that be
so, some intimation should have been given to either
erstwhile tenant or the present appellant-tenant or the RCO
regarding this change of authorisation. Hence the High Court
was not right to upheld the order in review passed by the
RCO.
After giving our consideration to the various
submission made by the parties we find, the RCO while
deciding the first point in review did not deal with any
fact or evidence in order to dislodge the findings recorded
by the RCO in its original order dated 16th August, 1995
that Shri Atique Ahmad was Mukhtar-e-am of Dr. Rashiq Ahmed
and who had executed Rend Deed in favour of the appellant.
There is no finding that the earlier order was based on no
material or was obtained by the appellant by practising
fraud or misrepresentation. The High Court decided mainly on
the ground of violation of proviso to Section 16(1) read
with Rule 9(3) and Rule 8(2) as landlord was not afforded
any opportunity, which is mandatory, hence depriving him the
opportunity under Section 16(10) (a) to apply for release,
if he so needs.
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We find in order to settle the matter in issue the
most essential finding which is missing both by the Rent
Control and Eviction Officer and also by the High Court is
on the question: who was the authorised person on behalf of
landlord at the relevant time and whether any intimation was
ever communicated by the landlord either to the erstwhile
tenant Anzar Hussain or to the RCO about the change of
authorisation for them to comply with the requirement of
law? It is not in dispute that Atique Ahmed was the
Mukhtaream authorised to act on behalf of landlord and he
continued to do so for a long period including admitting the
erstwhile tenant - Ansar Hussain to the tenancy. It is the
case for landlord there was a change in the authorisation.
If there is any such change, how is any one to know? Who is
to inform whom? What facts are on record? Before drawing any
inference of violation of the aforesaid provision, it is
necessary to record a clear finding on facts. Intimation of
vacancy is sent to the landlord by the RCO either to his
known given address or to his authorised person as
intimated. Till before the said change of authorisation, it
is Atique Ahmed who is known to be dealing with the property
on behalf of the landlord. Therefore the question of
intimation of this change of authorisation gains importance.
Who has to intimate which authority for complying with the
procedure of Rule 8(2), and Rule 9(3) in terms of proviso to
Section 16(1). In other words, before holding no opportunity
to landlord or violation of the aforesaid provisions a
finding has to be recorded as aforesaid whether any such
notice was sent or not to the landlord, in case it was sent
was it to the proper person? In the present case, admittedly
the landlord is living outside India and he gave power of
attorney to Atique Ahmad which is in the knowledge of both
the RCO and the erstwhile tenant. So if, subsequently there
is any change as alleged of the authorisation, the finding
has to be recorded with regard to the person to whom the
notice should have been sent by the RCO and whether on the
facts of this case notice sent to Atique Ahmed was proper or
bad in law. This has to be recorded before applying the law
of violation of any mandatory provision. In the present
case, the notification notifying the vacancy is not under
challenge but the challenge is whether before passing the
allotment order an intimation to the landlord in terms of
proviso to Section 16(1)(a) which is mandatory was given or
not.
For all the aforesaid reasons we quash the impugned
order dated 30th July, 1997 passed by the High Court and the
order dated 19.1.96 passed in Review by the RCO and remand
the case back to the Rent Control and Eviction Officer to
decide afresh after giving opportunity to the parties, the
question of the validity of the allotment order in the light
of the observation made above after the stage of notifying
the vacancy, notwithstanding and without prejudice of the
observations made by this Court or High Court or the
Revisional Court as aforesaid. Till the matter is decided
the status quo between the parties shall continue and shall
be subject to the order to be passed by the Rent Control and
Eviction Officer. Costs on the parties.
IN THE MATTER OF :