1. Heard Sri. Rakesh Kumar Gupta, learned counsel for the petitioner and Sri. A.K Bajpai, learned counsel for the respondent No. 3.
2. This writ petition is directed against order dated 3.6.1993 passed by Rent Control and Eviction Officer, Maharajganj (hereinafter referred to as “RCEO”) declaring vacancy of house in dispute situated at Nautanwa Bazar, Maharajganj, which is admittedly owned by petitioner. The contention is that impugned order has been passed without serving any notice upon landlord-petitioner and therefore, is patently illegal. It is, however, pointed out that RCEO made allotment of accommodation in question in favour of respondent No. 3 vide order dated 23.6.1993 and in these circumstances, petitioner preferred revision challenging order of allotment before District Judge, Maharajganj, which was registered as Civil Revision No. 13 of 1993 and has been allowed vide order dated 10.09.2013 setting aside allotment order dated 23.06.1993 rendering relief No. (b) in this writ petition infructuous. However, so far as order of declaration of vacancy is concerned, the same still continues. The question is, whether the said order has been passed correctly or not.
3. From the record, it appears that an application dated 29.4.1993 was filed by respondent No. 3, Amar Mani Tripathi, seeking allotment of accommodation in question, on which RCEO passed order on 03.5.1993 directing Rent Control Inspector (hereinafter referred to as “RCI”) to make spot inspection and submit report. The report was submitted by RCI on 11.5.1993 whereupon RCEO passed order issuing notice, and fixed 17.5.1993 for objection by the parties. It appears that service of notice was sought to be effected upon owner of premises in question by special messenger, who submitted report on 13.5.1993 that neither Durga Prasad Kamalia was found in Nautanwa Bazar nor any of his representative could be found hence notice could not be served.
4. Thereafter, respondent No. 3 filed an application before RCEO that whereabout of Durga Prasad are not known but one Kanhaiya Prasad is looking after his work and collecting rent. Thereupon RCEO passed order on 17.5.1993 itself issuing notice to respondent No. 3 as also Durga Prasad Kamalia fixing 24.5.1993 A report was submitted by process server on 18.5.1993 that he met Sri. Kanahiya Lal, Chaukidar of Durga Prasad Kamalia, who read the notice and returned, whereafter it was pasted on the door of Sri. Kanhaiya Lal. This report of service was taken as satisfactory service, by RCEO, and he fixed 3.6.1993 for order on vacancy. Ultimately, vide order dated 3.6.1993, RCEO declared vacancy.
5. It is contended that the manner in which RCEO has proceeded in this case and has hurriedly declared vacancy without complying mandatory provisions of law, it is evident that the entire action including impugned order declaring vacancy dated 3.6.1993 is not only illegal but also is vitiated on account of malice in law. It is not a bona fide statutory exercise of power by respondent No. 1 but in collusion and under influence of respondent No. 3. The impugned order has been passed illegally and therefore, is liable to be set aside.
6. Sri. A.K Bajpai, Advocate, appearing for respondent No. 3, on the contrary submitted that the house in question was lying vacant since long and therefore, respondent No. 3 made an application for its allotment. Thereupon respondent No. 1 had proceeded in the matter, strictly in accordance with law, and since notice was served upon the representative of petitioner, it cannot be said that impugned order has been passed illegally or without giving any opportunity to the petitioner.
7. The facts, as are borne out from record, show that house in question is part of a bigger area in which there exists an oil mill namely Sri. Durga Oil Mills. It is owned by Sri. Durga Prasad Kamalia and his sons Om Prakash Kamaliya, Rajendra Prasad Kamaliya and Mahavir Prasad Kamalia. The two sons of Sri. Durga Prasad Kamalia namely Sri. Om Prakash Kamalia and Rajendra Prasad Kamaliya are running their business at Patna. The respondent No. 3 filed an application on 29.4.1993 before District Magistrate, Maharajganj requesting that house in question be allotted for opening a public relation office since respondent No. 3 has no public relation office in his Assembly Constituency and house in question since is vacant, therefore, should be allotted for opening office by respondent No. 3. The District Magistrate, immediately, acted upon the said application and passed order on 3.5.1993 calling for the report from RCI. The said report was submitted by Senior Inspector Rent Control, which is undated but was brought before RCEO on 11.5.1993 In this report, which is Annexure 2 to the writ petition, it is evident that Inspector had no occasion to enter house in question. He found entry door locked. He, however, claimed to have made an inquiry from two local persons namely Rajendra Mani Tripathi son of Sri. Trayambak Mani Tripathi, resident of Nautanwa Bazar, who said that in the house there are two big rooms, one varandah, bathroom, kitchen and toilet. Another statement he recorded was of Baiju Verma, son of Natey, resident, of Nautanwa Bazar, whose statement is similar to that of Rajendra Mani Tripathi. Both said that house lying locked since Sri. Durga Prasad Kamaliya is residing at Patna for the last 30 years. Interestingly, none said that it has been vacated by owners and they had no control over it.
8. Rather, and, on the contrary, in the report itself, RCI mentioned that shop keepers in the vicinity of house told that Sri. Kamalia used to visit some times to look after his property and house, as is evident from following:
(Vernacular matter omitted…. Ed.)
“The shopkeepers over there have also stated that Shri. Kamalia, the owner of the building in question sometimes comes to look after the things On the nearby shopkeep ers being asked, it has come out that the owner of the said building Shri. Durga Prasad Kamalia keeps visiting at times.”
(English Translation by the Court)
9. The RCI, before making said inspection, did not give any notice to owner of property. He had no occasion to inspect the premises in question to find out whether it is actually vacant or not. His entire report is based on statement of two strangers claimed to be residents of Nautanwa Bazar but nowhere stated that they have personally visited house in question at any point of time and know that the same is vacant for all purposes.
10. After the said report was submitted and brought before RCEO on 11.5.1993, on the same date, he passed an order, issuing notice to parties, inviting objection from Sri. Durga Prasad Kamalia, fixing 17.5.1993 Service of notice is dealt with in Rule 8 of U.P Urban Building (Regulation of Letting, Rent & Eviction) Rules, 1972 (hereinafter referred to as “Rules, 1972”), which reads as under:
“8. Ascertainment of vacant [Section 12, 16 and 34(8)]- (1) The District Magistrate shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected by a Gazetted Officer.
(2) The inspection of the building, so far as possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such pasting, and if in the meantime any objection is received, not before the disposal of such objection.
(3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce.”
11. It is evident from record mat notice, in the present case, sought to be served upon Sri. Durga Prasad Kamalia at Nautanwa Bazar, though as per the own report, submitted by RCI, he was residing at Patna and this fact was also stated by respondent No. 3 in his application dated 29.4.1993 Apparently, the report dated 13.5.1993 submitted by process server is nothing but an empty formality when he said that he could not meet Sri. Kamalia nor any of his representative, knowing it well that Sri. Durga Prasad Kamalia, as per own stand of RCI as well as respondent No. 3, was residing at Patna. Thereafter, on 17.5.1993, respondent No. 3 himself moved an application stating that entire work of collection of rent etc. on behalf of Sri. Durga Prasad Kamalia is being looked after by one Kanhaiya Prasad and therefore, notice should be issued in the name of Kanhaiya Prasad. On the same date, RCEO passed another order directing for issuance of fresh notice to Sri. Durga Prasad Kamalia, and put up the matter on 24.5.1993 All this shown a mechanical exercise on the part of RCEO and total lack of application of mind.
12. Pursuant thereto, the process server submitted another report on the very next date i.e 18.5.1993, stating that he went to serve notice upon Sri. Durga Prasad Kamalia and at the site, met his Chaukidar “Kanhaiya Lal”, who read over the notice, and returned the same. Thereafter notice was pasted on the door in presence of two witnesses i.e Ram Adhar Dubey, Son of Ram Vilas Dubey and Sri. Shiva Nand Mani Tripathi Son of Triyambak Mani Tripathi, i.e brother of Rajendra Mani Tripathi son of Triyambak Mani Tripathi, whose statement was obtained by RCI on 8.5.1993 to form basis of his report. It is interesting to notice that the same two persons are mentioned as witnesses in the process server's report dated 13.5.1993 also. Thereupon RCEO closed the matter on 24.5.1993, observing, since no objection has been filed by opposite party i.e Sri. Durga Prasad Kamalia, therefore, let the matter be listed for order on 3.6.1993 Thereafter, on 3.6.1993, the impugned order has been passed.
13. The RCEO has held that RCI has submitted report that house in question is vacant for the last 20 years. However, having gone through the entire report, I do not find any such finding recorded by RCI himself. He has only said that house is 50-54 years old and within the ambit of Rent Control Act but about vacancy, he has not given any categorical finding at all. The RCEO also did not find himself, any material to declare house in question, vacant, but misreading the report of RCI, it has simply observed that the report of RCI mentions that house is vacant for the last 20 years and besides that house owner also had two other big houses at Hanuman Chawk and Brijmanganj and, therefore, on the basis of report of RCI, house in question is declared vacant and available for allotment. This finding is evidently perverse since it is not born out from the report, which is made the basis for declaring house, vacant, by RCEO.
14. Moreover, immediately thereafter, petitioner filed objection on 10.6.1993 before RCEO stating that house is not vacant and he himself is residing in one room thereof and in another part, his Manager Sri. Kanhaiya Lal and a Pujari Sri. Shatrudhan Maharaj are residing; the house was never let out and cannot be declared vacant. With respect to other property, petitioner said that alleged house in Hanuman Chawk is actually a godown and not a residential accommodation. He also filed an affidavit in support of objection and said that application of respondent No. 3, seeking allotment of said house, is actuated by mala fide and based on incorrect averments. Simultaneously, he also filed objection to the report of RCI on 10.6.1993 stating that RCI has submitted a false report in collusion with respondent No. 3, inasmuch as, when Kanhaiya Lal and Pujari were residing in the accommodation, no enquiry was made from them but report was submitted, taking statement of Ram Adhar Dubey, who is a man of Sri. Amar Mani Tripathi (respondent No. 3). He said that RCI has submitted report under political influence and the mere fact that Oil Mill, which is closed for sometime, does not mean that business has been given up or house has been vacated. The entire goods, necessary for residential purposes, are still kept in the house, which shows that residential accommodation was never vacated. In view of above objections, he filed application dated 10.6.1993 requesting RCEO to revoke order dated 3.6.1993 stating that since no information or notice was ever served upon him before 8.6.1993, proceedings are wholly ex parte.
15. An affidavit of Kanhaiya Lal, son of Baldev Ram was also filed by petitioner before RCEO, in which he denied the factum that any notice was attempted to be served upon him of read over to him. He also stated that he is residing in part of disputed house for the last 40 years and in another part of house, Pujari of temple in vicinity is residing. He said that RCI never visited premises and has submitted a false report in respect to the house in question, which is situated inside the premises of Oil Mill.
16. Respondent No. 3 filed his own reply contesting application and objection of petitioner in which he did not dispute that house in question was never let out but said that other property in the vicinity of house in question has been let out. RCEO did not consider petitioner's application with regard to recall of order dated 3.6.1993 and on the contrary, observed vide order dated 23.6.1993 that house is said to be owned by Sri. Durga Prasad Kamalia, who himself has not appeared and only his son Mahavir Prasad Kamalia has filed objection admitting that Durga Prasad Kamalia is the owner and no evidence has been placed on record that he is residing at Nautanwa Bazar, therefore, objection has no substance and accordingly the house in question is allotted to respondent No. 3.
17. I do not propose to go to the validity of the order of allotment since it has already been set aside by Revisional Court but suffice it to mention that it was incumbent upon RCEO first to find out whether order declaring vacancy was passed after following due procedure prescribed in law and with due service upon owner of the premises or not.
18. In the present case, when specifically an affidavit was filed that no service was ef-1 fected upon owner, without looking into this aspect of the matter, it was not open to RCEO to proceed further, treating as if order declaring vacancy is final. Admittedly, he has not looked into the application of petitioner seeking recall of order dated 3.6.1993 which was challenged, being in violation of Rule 8, as no notice was served upon owner of premises. The petitioner is the son of Durga Prasad Kamalia and has not stated anywhere in his application or affidavit that house is absolutely owned by Sri. Durga Prasad Kamalia and not by his sons. What he has said is that Oil Mill was installed by his father Durga Prasad Kamalia and now business of bis father is being looked after by petitioner and his two brothers since Sri. Durga Prasad Kamalia is an old man of 82 years.
19. It has repeatedly been held that before declaring vacancy, strict observance of procedure laid down in Rule 8 of Rules, 1972 must be followed and proceedings should not go on mere conjectures and surmises and in a casual fashion. In Babu Singh Chauhan v. Smt. Raj Kumari Jain, 1980 AWC 89, the Court has said that even if house owner is not actually available in the house and it is found locked but if his household goods are lying therein, it cannot be said that house is vacant and not in the occupation of owner.
20. Similarly in Mohd. Naseem v. ARO/RC & EO Agra, 1980 AWC 186, this Court has held that it is the responsibility of RCI to make earnest and honest efforts to meet house owner and find out correct facts. The mere fact that for some time or some of the owners are residing in other city, it cannot be inferred that house is vacant.
21. In Smt. Krishna Devi v. City Magistrate/Rent Control & Eviction Officer, 2006 (3) ARC 198, Nainital High Court has taken the view, if an accommodation is declared vacant only on the ground that at the time of inspection it was found locked, it would clearly show that requirement of law under Rule 8 has not been observed.
22. In Vimla Devi v. 1st Addl. District Judge, 1976 AWC 603, Apex Court has said that if the house owner is residing elsewhere and used to visit disputed accommodation casually or from time to time, it will be deemed that house is in his possession and not vacant.
23. Compliance of Rule 8(2) has been held mandatory by this Court in Writ Petition No. 10170 of 1990 (Smt. Ganga Devi v. VIII Addl. District Judge) decided on 9.8.2012 and in para 17 of judgment, the Court observed:
“17. In the order dated 22.01.1990 passed by Revisional Court, the date of application of respondent No. 3 for allotment has been given as 20th December, 1984. It appears that his date of inspection is apparently a typing mistake, since both the parties agreed that correct date of inspection was 31st December, 1984 which fact was admitted by the counsel for the petitioner himself as also it finds mention in the ground of revision No. 120 of 1985 filed by petitioner. Therefore, from the date of application and date of inspection there is a gap of just ten days. It was incumbent upon R.C.E.O to find out whether before making inspection any information whatsoever was given to landlady or not. In absence of anything on the part of inspecting authority to ensure presence of the landlady at the time of inspection would mean that there was no compliance at all of rule 8(2) which makes the entire proceedings illegal.”
24. Construing the above provision in Writ Petition No. 13258 of 1996 (Chhannu v. X.A.D.J) decided on 28.8.2012 this Court in para 5 of the judgment said:
“5. It thus provides that as far as possible, inspection of building shall be made in presence of landlord and tenant or any other occupant, meaning thereby, before making inspection, the landlord will be apprised of such inspection, obviously by giving a notice, otherwise, the question of his presence would not arise and cannot be ascertained. It is true that rule 8 talks of “so far as possible”. However, it means that information has to be given and non communication must be shown that such information was not possible. If no information is given, then it is for the inspecting authority to tell as to why information to landlord asking him to remain present at the time of inspection was not possible to be given. Therefore information is rule and non communication is exception, reason whereof has to be shown. However, once such an information is given and the landlord if not present, it would be a failing on his/her part and no fault shall be attributable to the inspecting authority provided such information has actually been given. There is nothing on record to show that any such information was ever given or attempted by Rent Control Inspector at any point of time to the landlord. There was no attempt at all on the part of Inspector to require the landlord to remain present at the time of inspection.”
25. In the present case, declaration of vacancy by RCEO is not only in utter violation of procedure laid down under Rule 8 but also he has misread the report of RCI to declare vacancy and has committed patent illegality in not deciding objection filed by petitioner seeking recall of order dated 3.6.1993 on the ground that the said order has been passed in utter violation of principles of natural justice and without serving any notice upon petitioner. The attitude and the manner in which the then RCEO has proceeded in the matter, leaves no option to this Court but to infer that he has not proceeded in an honest manner. The entire proceedings smack of malice i.e malice in law and therefore also, the impugned order is vitiated in law.
26. The Apex Court has summarised “malice in law” in (Smt.) S.R Venkatraman v. Union of India, (1979) 2 SCC 491 : AIR 1979 SC 49 as under:
“It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another.” (Para 8)
27. The Apex Court further in para 9 of the judgment in S.R Venkatraman ((1979) 2 SCC 491 : AIR 1979 SC 49) (supra) observed:
“9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the “public interest”, to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power.”
28. In Mukesh Kumar Agrawal v. State of U.P, JT 2009 (13) SC 643 : (AIR 2009 SC (Supp) 2018) the Apex Court said:
“We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction.”
29. In Somesh Tiwari v. Union of India, (2009) 2 SCC 592 : (AIR 2009 SC 1399) dealing with the question of validity of an order of transfer on the ground of malice in law, the Apex Court in para 16 of the judgment observed as under:
“16 Mala fide is of two kinds—one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment.”
30. In HMT Ltd. v. Mudappa, JT 2007 (3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to “Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989” as under:
“The legal meaning of malice is “ill-will or spite towards a party and any indirect or improper motive in taking an action”. This is sometimes described as “malice in fact”. “Legal malice” or “malice in law” means “something done without lawful excuse”. In other words, “it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite”. It is a deliberate act in disregard of the rights of others.”
“19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide.”
31. In brief, malice in law is when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. (See Manager Govt. Branch Press v. D.B Belliappa, (1979) 1 SCC 477 : AIR 1979 SC 429; Punjab Electricity Board v. Zora Singh, AIR 2006 SC 182; K.K Bhalla v. State of U.P, (2006) 3 SCC 581 : AIR 2006 SC 898; P. Mohanan Pillai v. State of Kerala, (2007) 9 SCC 497 : (AIR 2007 SC 2840); M.P State Corporation Dairy Federation Ltd. v. Rajneesh Kumar Zamindar, (2009) 15 SCC 221 : (2009) 6 SCALE 17; Swarn Singh Chand v. Punjab State Electricity Board, (2009) 7 SCALE 622 : (AIR 2010 SC 151) and Sri. Yemeni Raja Ram Chandar v. State of Andhra Pradesh, JT (2009) 12 SC 198). The last aspect is that the respondent No. 3 is only a prospective allottee. The stage to contest matter for him would arise only when there exists a vacancy and is available for allotment. Earlier thereto, i.e at the stage of considering question, whether there exists a vacancy in an accommodation or not, he has no locus standi in the matter. A prospective allottee as such has no legal or otherwise right to be a party in the lis for the reason that whether there exist a vacancy, deemed or otherwise in a building is a question, which has to be considered by Rent Control Authorities under the statute, after hearing owner of the property and the occupant, if any, therein and none else. This is evident from what has been said by a Full Bench of this Court in Talib Hasan v. 1st Additional District Judge, 1986 (1) ARC 1 : (AIR 1986 All 196) wherein the Court says as under:
“26. The right of a prospective allottee is not an absolute right. It is contingent upon, firstly, the accommodation being vacant and, secondly, the building being available for allotment.”
32. This has also been followed by this Court in Sushil Prakash v. Dr. Sachindra Shekher, 2013 (3) ADJ 571 : (2013 (4) ALJ 7).
33. In view of above discussion, the writ petition is allowed. The impugned order dated 03.6.1993 (Annexure 10 to the writ petition), declaring vacancy, is hereby quashed. RCEO is directed to proceed with the matter afresh with regard to determination of vacancy in the accommodation in question in the light of the observations made above and in accordance with law. The petitioner shall be entitled to costs quantified to Rs. 50,000/-, which has to be shared equally by respondent Nos. 1 and 3.
34. Petition allowed.