RAMDHANI Vs. DISTRICT JUDGE FATEHPUR

JUDGEMENT

(1.) Heard learned Counsel for the parties. 2. This is landlords' writ petition. Property in dispute is a shop in tenancy occupation of respondent No. 3 Rafeeq. Petitioners filed an application under sections 12/16 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 before R. C. and E. O. /deputy District Magistrate, Fatehpur in the form of case No. 18 of 1996 stating therein that tenant respondent had sub let the shop of Fahim Tailor. R. C. and E. O. through order dated 19. 6. 1996 de clared vacancy of the shop in dispute. In the order, it was mentioned that sum mons sent from the office of R. C. and E. O. returned the service but no objection was filed. Thereafter, by order dated 16. 3. 1997, shop was released in favour of the landlords. Thereafter, respondent No. 3 filed review/recall application under section 16 (5) of the Act before R. C. and E. O. stating therein that he had no knowledge of the proceedings, no notice was served upon him and shop was not sub-let/vacant. It was prayed through the said application filed on 21. 10. 1997 that vacancy declaration order and release order might be set aside being ex parte and matter should be decided after hearing both the parties. The said application was allowed by R. C. and E. G. on 21. 12. 1998. R. C. and E. G. held that the earlier order declaring vacancy and order of allotment being ex parte de served to be set aside. R. C. and E. O. also observed that respondent No. 3 has al ready filed the suit and in the suit an injunction had been granted restraining the landlords from evicting him except in accordance with law. 3. It is stated that landlords petitioners had also taken possession after release order dated 15. 10. 1997. Against order dated 21. 12. 1998, revision was filed by the petitioners being Civil Revision No. Nil of 1999. District Magistrate, Fatehpur through order dated 5. 1. 1999 dismissed the revision at the admission stage, hence this writ petition. 4. In the writ petition, it has not been stated that in what manner notice sent by R. C. and E. O. was served upon respondent $o. 3. There is no mention that before inspection, R. C. Inspector issued any notice to respondent No. 3, which was mandatory under Rule 8 (2) of the Rules framed under the Act. 5. In this writ petition, an order was passed on 12. 1. 1999 that in case peti tioners were in possession they should not be evicted till the next date of list ing. According to the learned Counsel for the respondent No. 3, possession was delivered to him on 11. 1. 1999 while according to the learned Counsel for the petitioner, possession was delivered by R. C. and E. O. to respondent No. 3 on 12. 1. 1999. However, learned Counsel for the petitioner clearly stated that no affidavit was filed on 12. 1. 1999 by petitioners before R. C. and E. O. intimating that High Court had stayed the dispossession. Even if it is assumed that dis possession took place on 12. 1. 1999 after passing of the stay order on that very date, still no fault can be found as an un-communicated stay order is not binding by anything done in ignorance of the stay order is not liable to be reversed after knowledge of the stay order. 6. I agree with the learned Counsel for the petitioners that merely be cause there was a temporary injunction order passed by Civil Court restraining the landlords from forcibly evicting the tenant respondent No. 3, it could not operate as bar either against declaration of vacancy or release. However, the fact is that neither before inspection nor before declaring vacancy, notice was served upon respondent No. 3, hence in my opinion, vacancy declaration order and release order were rightly recalled. Whether there is vacancy or not is to be decided after hearing both the parties. 7. Accordingly, writ petition is disposed of with the direction that both the parties shall appear before R. C. and E. G. , Fatehpur on 1. 9. 2008. On the said date, both the parties shall file their documentary evidence. R. C. and E. O. shall decide the question of vacancy very expeditiously. In case vacancy is declared then release application must be considered and while considering release ap plication, respondent No. 3 shall not be permitted to participate in the pro ceedings. However, if R. C. and E. O. finds that there was no subletting hence no vacancy, then proceedings should be dropped. 8. I have held in Khursheeda v. AD. J. 2004 (55) ALR 586. and H. M. Kichlu v. A. D. J. , 2004 (57) ALR 485 that while granting relief against eviction to the tenant in respect of building cov ered by Rent Control Act or while maintaining the said relief already granted by the Courts below, Writ Court is empowered to enhance the rent to a reason able extent. 9. In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M. V. Acharya v. State of Maharashtra, AIR 1998 SC 602=1998 SCFBRC 75 where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts, the Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and Courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Sataywati Shartna (dead) by LRs. v. Union of India and another, (2008) 5 SCC 287=2008 (71) ALR 485 (SC)=2008 (65) AIC 1 (SC) part of Para 29 and Para 34 of which are quoted below : "29. It is trite to say that legislation which may be quite reasonable and rationale at the time of its enhancement may with the lapse of time and/or due to change of Circumstances before arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legis lation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent. 34. In Malpe Vishwanath Acharya and others v. State of Maharashtra and another (supra), the Court found that the criteria for de termination and fixation of rent by freezing or by pegging down of rent as on 1. 9. 1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31. 3. 1998. " 10. Under U. P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [except where landlord is public charitable or public religious institution (section 9-A) or Government is tenant (section 2 (8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the au thority of Supreme Court in Shangrila Food Products Ltd. v. Life Insurance Corporation of India, AIR 1996 SC 2410=1996 SCFBRC 472 Paragraph 11 of which is quoted below : "it is well-settled that the High Court in exercise of its jurisdiction un der Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the par ties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the un fair advantage gained and can require the party to shed the unfair gain be fore granting relief. " Thereafter, in Para 8 of the aforesaid authority of Khursheeda, I held as under: "rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bona fide need of the land lord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage can not be said to be either reasonable or equitable. The Supreme Court in the afore said authority of S. F. P. v. L. I. C, AIR 1996 SC 2410=1996 SCFBRC 472 has laid down that while granting relief to a party the Writ Court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the un-reasoanble arbitrary advantages conferred upon him by the said Rent Control Act. The Writ Court therefore, while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the un-reasoanble benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act. " 11. Thereafter, in H. M. Kitchlu v. A. D. J. , 2004 (57) ALR 485. I have held that the same prin ciples of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so Writ Court approves the protection of Rent Control Act granted to the tenant by the Courts below. 12. Property in dispute is a shop. Existing Rent of Rs. 35/- per month is vir tually as well as actually no rent. Accordingly, irrespective of the result of the proceedings before R. C. and E. O. , w. e. f. August, 2008 onwards tenant respondent shall pay rent of the shop to landlords petitioners @ Rs. 500/- per month. No further amount as water tax etc. , over and above Rs. 500/- per month shall be payable. 13. R. C. and E. O. shall decide the matter very expeditiously. 14. Absolutely, no unnecessary adjournment shall be granted to any of the parties. If Court below is inclined to grant any adjournment on any ground to any of the parties, then it shall be on very heavy cost, which shall not be less than Rs. 250/- per adjournment. 15. Rent at the old rate of Rs. 35/- per month deposited under section 30 of the Act shall be permitted to be withdrawn by landlords petitioners. Writ Petition Allowed. .