O.P.S.Malik,Naresh Chandra Kapoor vs Rent Control & Eviction Officer,Allahabad & Ors.,District Magistrate/Collector,Allahabad & Ors.

S.U. Khan, J.

House in dispute was allotted by R.C. & E.O. Allahabad to Shri O.P.S. Malik petitioner in first, third and fourth writ petitions on 1731993 in proceedings under Sections 12 & 16 of U.P. Act No. 13 of 1972 which had been registered as case No. 100 of 1992. On the same date R.C. & E.O. rejected the release application of the landlord who is petitioner in the second writ petition and contesting respondent in the other three writ petitions. In the last two writ petitions two more alleged colandlords have also been made parties. Possession was also taken by Shri O.P.S. Malik on the same date i.e. 1731993 from the alleged outgoing tenant Smt. Sayeda Farooqui. Number of the house in dispute is 12/24 Nayay Marg, Allahabad. The case had been filed by one Sanjay Bhatnagar before R.C. & E.O. in which Naresh Chandra Kapoor landlord was made opposite party. Vacancy was declared on 2021993 by R.C. & E.O./A.D.M. (Civil Supply), Allahabad. At that time Shri Malik was D.I.G. (C.R.P.F.), Allahabad. Naresh Chandra Kapoor landlord filed two revisions under Section 18 of U.P. Act No. 13 of 1972. Revision No. 105 of 1993 was directed against allotment order and revision No. 106 of 1993 was filed against rejection of release application. Additional District Judge, Court No. 1, Allahabad allowed both the revisions through separate judgments dated 1092001 and remanded the matter to R.C. & E.O. in both the cases. Third writ petition relates to release matter and fourth writ petition relates to allotment matter.

Earlier landlord N.C. Kapoor had filed a writ petition being writ petition No. 8531 of 1993 in which stay order was passed on 1631993. According to landlord R.C. & E.O. rejected the release application and allotted the building in dispute to the petitioner on 1731993 even though certified copy of stay order dated 1631993 had already been filed before R.C. & E.O. According to allottee O.P.S. Malik orders were passed by R.C. & E.O. on 1731993 in ignorance of stay order dated 1631993, as certified copy of the same was filed after the passing of the orders. The said writ petition of 1993 was disposed of finally on 451993. The High Court after observing that revisions had been filed directed the revisional Court also to decide whether vacancy was lawfully declared or not. Complete copy of order dated 1731993 rejecting release application is Annexure C.A. 10A to the counter affidavit filed in writ petition No. 362226 of 2001. In the first sentence of the said order accommodation in dispute is described as house No. 12/24 situate at Nayay Marg, Allahabad consisting of a huge (vishal kayey) lawn, portico, verandas on three sides, one hall, four bed rooms, latrine, both room, two garages, kitchen of two rooms and at the back side six out houses/servant quarters. In the said order it is mentioned that on 1131993 landlord filed an application for recalling of the order dated 2021993 declaring vacancy on which 1231993 was fixed and on 1231993 no one appeared for the landlord. In the said order it is mentioned that no hearing took place on the release application however, R.C. & E.O. himself perused the release application and found that there was no force in the release application. By another order of the same date i.e. 1731993 building was allotted to the petitioner who was D.I.G. (CRPF), Allahabad at that time for the residential purposes at the rate of Rs. 500 per month. (The manner and tenor of the description of the grandeur of the house in the order of R.C. & E.O. clearly suggests that he was of the opinion that such a grand building could not be released in favour of landlord and it deserved to be allotted to the illustrious prospective allottee). It is not clear that from where this figure of Rs. 500 was taken by R.C. & E.O. In the said order it was also mentioned that the occupant Smt. Sayeeda Farooqui was in the process of vacating the house. Revisional Court in its judgment has held that perusal of the original order sheet of the R.C. & E.O. revealed that R.C. & E.O. himself had made manipulations therein. On 1821993 R.C. & E.O. had fixed 331993 as the next date in the said case however, vacancy was declared on 2021993 and 2721993 was fixed as the next date. There does not appear to be any reason as to why the dates were preponed. The revisional Court has mentioned that there is no evidence that parties were informed about the change of date as on the side of the order sheet where order dated 2721993 was written none of the parties made their signatures. On the said date, i.e. 2721993 R.C. & E.O. recorded in the order sheet that no objections filed and fixed 431993 for argument on release/allotment. On 431993 Advocates were on strike hence for arguments on release/allotment 1131993 was fixed. In the order sheet of 1131993 also manipulation was made. In the order sheet of 1131993 on the left side landlord endorsed that ''noted for 1831993'' however the case was shown to have been taken up on 1231993 and thereafter on 1731993. The tearing haste shown by R.C. & E.O. in making allotment to the petitioner and the manipulations in the order sheet supplement and complement each other. The conclusion is irresistible that in view of the stay order passed by this Court on 1631993 in the writ petition of 1993 proceedings had to be concluded latest by 1731993. The Additional District Judge after perusal of original order sheet of R.C. & E.O. rightly held that orders of several dates on the order sheet were transcribed on the same date. Photostat copy of the order sheet filed alongwith counter affidavit fully justifies the said conclusion. The revisional Court has mentioned that certified copy of High Court''s stay order dated 1631993 was received by the reader of R.C. & E.O. on 1731993 at 1.15 p.m. The revisional Court has also held that initially 1831993 was the date fixed for passing final order on allotment application. This sequence of facts clearly proves that allotment order was passed and possession was taken by the allottee after filing of certified copy of High Court''s stay order on 1731993.

Even if for the sake of argument allotment order is held to be legal, the action of petitioner of taking possession on the same date directly by the tenant without issuance of any Form B,C or D was utterly illegal as held by me in C.K. Nagarkar v. ADJ, 2004 (2) A.R.C. 349 and Ram Sumer v. 1st ADJ, Kanpur and others, 2003 (2) ARC 570. Under Rule 14 of the Rules framed under U.P. Act No. 13 of 1972, hereafter quoted, it is essential that when building is allotted in anticipation of vacancy, allottee shall be put in possession only after the building has actually fallen vacant or is held by R.C. & E.O. through an enquiry that the building has fallen vacant. No such exercise was undertaken by the R.C. & E.O. No notice to the landlord was issued for the purposes of any such enquiry:

�Rule 14. Enforcement of order of allotment or release [Section 16(4).] Where any building about to fall vacant is allotted or released under Section 16 91, proceedings 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 authorized 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 shall in no case be less than a week from the date of service of the order upon him, and his failure to comply with the order within the time allowed the District Magistrate shall issue an order to the officerincharge of the Police Station in Form D directing him to get the building vacated and to put the allotte or the landlord in possession of the building.�

Writ Petition No. 33657 of 2001 has been filed by the landlord for a writ of mandamus directing District Magistrate/Collector, Allahabad to put the petitioner in possession. In the said writ petition it has been stated that after decision of revisional Court dated 1092001, landlord filed an application before R.C. & E.O. on 1492001 under Section 18(3) of the Act for delivery of possession. It has also been stated that R.C. & E.O. on or about 1892001 dispatched the file to District Magistrate for issuing order of eviction in prescribed form 14D of the Act. It has been held by the Supreme Court in 1989 (2) A.R.C. 1 S.C., G.S. Barrow v. District Magistrate, Lucknow and others, that after reversal of order of allotment or release allottee or landlord shall be put back in possession by R.C. & E.O. under Section 18(3) of the Act:

Section 18(3): �Where an order under Section 16 or Section 19 is rescinded, the District Magistrate shall, on an application being made to him on that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose use or cause to be used such force as may be necessary.�

Writ Petition No. 21874 of 2001 arises out of fresh proceedings for allotment/release initiated in the year 2001 by one Ram Lakhan Tripathi. Shri Tripathi filed a case before R.C. & E.O. numbered as case No. 1 of 2001, Ram Lakhan Tripathi v. N.C. Kapoor. In the said case R.C. & E.O. on 2552001 while declaring vacancy held that another house situate on the same road i.e. house No. 19 Nayay Marg, Allahabad had already been allotted on 2511990 for office and residence of DIG, Allahabad. Through writ petition No. 21874 of 2001 the said order declaring vacancy has been challenged. In this writ petition stay order was passed on 862001 staying operation of impugned order dated 2552001 declaring vacancy. However one day before i.e. on 762001 the house had been released in favour of the landlord N.C. Kapoor. Copy of the release order is Annexure C.A. 23. In the said release order detailed reasons have been given for finding the need of the landlord to be bona fide. In the said order it has also been mentioned that landlord spent about Rs. 18 lacs for getting converted the lease hold land of the building in dispute into free hold.

It is settled that release under Section 16 of the Act is a matter in between landlord and R.C. & E.O. and unauthorized occupant or prospective allotted cannot question or challenge the same (vide AIR 2002 SC 2204, R.N. Sharma v. S.C. Gaur).

In view of the above it is clear that allotment in favour of petitioner dated 1731993 was illegal, without jurisdiction and amounted to abuse of process of Court. Release order has been passed by R.C. & E.O. in favour of landlord on 762001 hence there is no need to direct R.C. & E.O. to decide release application once again. Writ Petition No. 21874 of 2001 need not be decided as in view of the above findings it becomes infructuous.

It is not at all clear as to what basis was adopted by R.C. & E.O. for determining the rent at the rate of Rs. 500 per month. Looking to the extent of the accommodation mentioned in the order dated 1731993, rejecting the release application of landlord, the locality where building in dispute is situate and the fact that the landlord has paid about Rs. 18 lacs for getting his rights in the land of the building in dispute converted from lease hold to free hold the appropriate amount of rent/damages for use and occupation which allottee/petitioner shall be liable to pay cannot be in any case less than Rs. 5,000/per month. He is accordingly directed to pay the said rent/damages for use and occupation from 1731993 till the date of vacation.

The petitioner O.P.S. Malik is liable to vacate the premises forthwith. However, he is granted two months time to vacate. If the petitioner vacates the premises of his own within the aforesaid period of two months then he would be liable to pay damages only at the rate of Rs. 3,500 per month, otherwise at the rate of Rs. 5,000 per month. In view of the important post, which the petitioner is holding, it is expected that he would vacate the premises of his own. However, if he fails to vacate the premises within two months then D.M./Collector, Allahabad must ensure that within a month after expiry of period of two months from today possession is delivered to the landlord and compliance report is sent to this Court. The rent/damages for use and occupation at the above rate shall be paid within six months from today failing which landlord will be at liberty to initiate suitable proceedings for the recovery of the same including contempt proceedings.

All the writ petitions accordingly disposed of.