Important Point
Where in order to settle the matter in issue, the most essential finding on the question as to 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 or to the Rent Control and Eviction Officer about the alleged change of authorisation for them to comply with the requirement of law, was not recorded either by the RCO and also by the High Court which has necessarily to be recorded before applying the law as laid down in Rules 9(3) and 8(2) r/w Section 16(1)(a) and proviso to Section 16(1) of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, the matter would be remanded back to RCO for deciding afresh the question of validity of allotment order.

Headnote:U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Section 16(1) r/w Rules 9(3) and 8(2)-Allotment order-Validity-Allotment of premises in favour of tenant by RCO with the consent of authorised person of owner - Review application by owner alleging absence of intimation of allotment under Proviso to Section 16(1) and change in authorisation - Consequently, allotment order cancelled by RCO in review-On revision, order of RCO in review set aside by Revisional Court on ground that no finding given by RCO in review, that the finding recorded by previous RCO who passed allotment order was based on no material on record-High Court setting aside order of Revisional Court on ground of absence of intimation to landlord under Proviso to Section 16(1) and failure of Revisional Court to afford an opportunity to landlord under Section 16(1)(a)-Essential finding on question as to who was authorised person on behalf of owner at relevant time and whether any intimation was communicated by landlord either to erstwhile tenant or to RCO about change of authorisation for them to comply with requirement of law-Not given either by RCO in review or by High Court-Order of High Court and that of RCO in review-Liable to be quashed and matter remanded back to RCO for deciding validity of allotment order in light of observations made.
       Held : After giving our consideration to the various submissions 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 Rent 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. (Para 9)
       Further held : 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. (Para 10)
       Consequently held : For all the 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. (Para 11)

Judgment

Misra, J.-Leave granted.

2. 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 ‘RCO’) in a proceeding under the 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 RCO 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.

3. 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 RCO 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 Atique 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 Atique Ahmad. In the margin of this order Atique 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 Atique 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 of said Atique Ahmad, representative of the landlord. At the same time an agreement was also executed between the said Atique 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 Atique Ahmad in connivance 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.

4. The case set up 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

Click Here to Read the rest of this document