{"id":34557,"date":"1998-05-08T00:00:00","date_gmt":"1998-05-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tanauwwar-nabi-khan-vs-rashik-ahmad-ors-on-8-may-1998"},"modified":"2017-06-24T16:53:43","modified_gmt":"2017-06-24T11:23:43","slug":"tanauwwar-nabi-khan-vs-rashik-ahmad-ors-on-8-may-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tanauwwar-nabi-khan-vs-rashik-ahmad-ors-on-8-may-1998","title":{"rendered":"Tanauwwar Nabi Khan vs Rashik Ahmad & Ors on 8 May, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tanauwwar Nabi Khan vs Rashik Ahmad & Ors on 8 May, 1998<\/div>\n
Bench: S.C. Agrawal, S. Saghir Ahmad, A.P. Misra<\/div>\n
           PETITIONER:\nTANAUWWAR NABI KHAN\n\n\tVs.\n\nRESPONDENT:\nRASHIK AHMAD & ORS.\n\nDATE OF JUDGMENT:\t08\/05\/1998\n\nBENCH:\nS.C. AGRAWAL, S. SAGHIR AHMAD, A.P. MISRA\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nMisra. J,
\n     Leave granted.\n<\/p>\n
     The appellant-tenant  is aggrieved\t by the order passed
\nby the\tHigh Court  in writ  jurisdiction, setting aside the
\norder dated  December  5,  1996\t passed\t by  the  Additional
\nDistrict Judge\tand upholding  the order of the Rent Control
\nand Eviction  Officer (hereinafter  referred to as ‘R.C.O.’)
\nin a  proceeding under\tU.P. Urban  Buildings (Regulation of
\nLetting, Rent  and Eviction)  Act, 1972\t (hereinafter  after
\nreferred to  as ‘the  Act’). Consequently  the order made in
\nhis favour was set aside, directing the R.C.O. to dispose of
\nlandlord’s application under Section 18(3) of the Act to put
\nthe  parties back in the position which they occupied before
\nthe allotment order.\n<\/p>\n
     The disputed  premises belongs  to one  Rashiq Ahmed, a
\nresident in  England, who  executed Power of Attorney on his
\nbehalf to  Atique Ahmad sometime in the year 1992 who in due
\ncourse of   management\tlet out\t the house in dispute to one
\nMr. Ansar  Hussain on  a monthly  rent of  Rs.700\/-. On\t 1st
\nAugust, 1995,  he intimated through notice to the R.C.O that
\nsince his  business of\tbrass utensils was not doing well he
\nhas decided  to vacate the premises by the end of the month.
\nThe   appellant’s  case\t is  that  Antique  Ahmad  was\tduly
\ninformed accordingly.  On coming  to know this the appellant
\nmade an\t application for  allotment of\tthe said premises to
\nthe RCO.  On the  4th August, 1995 the said officer declared
\nthrough notification  that the\tsaid house  in\tdispute\t was
\nabout to  fall vacant,\thence 16th August, 1995 is fixed for
\ndeciding the  question of  allotment\/release. A copy of this
\norder was  directed to\tbe put up on the Notice Board of his
\noffice and  also to  be served\ton the\tlandlord through his
\nmukhtiar-e-am Antique  Ahmad. In  the margin  of this  order
\nAntique Ahmad signed in token of his presence and service of
\nthe order.  It is  the case  of the  appellant that  on 14th
\nAugust, 1995  he approached  the said Antique Ahmad and also
\nthe outgoing  tenant, namely,  Anzar Hussain. The later sold
\nhis entire  machinery installed\t in the\t house in dispute to
\nthe appellant  for Rs.55,000\/- which was duly paid to him on
\nthe same date. This written transaction was with the consent
\nof said\t Antique Ahmad,\t representative of  the landlord. At
\nthe same  time an  agreement was  also executed\t between the
\nsaid Antique  Ahmad and\t the appellant.\t By that the rent of
\nthe premises  in question  is  increased  from\tRs.700\/-  to
\nRs.800\/- with  an advance  of Rs.30,000\/-  to be adjusted in
\nrent in\t future. This agreement was filed before the RCO. On
\nthe 16th August, 1995, the RCO allotted the said premises in
\nfavour of  appellant by recording that no objection is filed
\nagainst the  declaration of vacancy. The order recorded only
\none application\t of the appellant has been received with the
\nconsent and  agreement of  the owner  of the premises in his
\nfavour. Further\t case of  the appellant is later, on account
\nof dishonesty,\tthe said Antique Ahmad in conivance with his
\nbrother Mohd.  Athar, on 21st August, 1995, acting on behalf
\nof the\tlandlord (Rashik  Ahmed) made  an application  under
\nSection 16(5)  of the  Rent Control  Act for  review of\t the
\nallotment order.  The case set up was that Power of Attorney
\nin favour  of Atique Ahmad was cancelled by Dr. Rashik Ahmed
\non 17th\t November, 1994\t and fresh  Power  of  Attorney\t was
\nexecuted in  favour of Mohd. Athar on 31st January, 1995. It
\nis not in dispute that both Atique Ahmad and Mohd. Athar are
\nbrothers.\n<\/p>\n
     The case  set on  behalf of  the landlord\tis  that  no
\nnotice of the declaration of vacancy or allotment proceeding
\nwas ever given to the landlord before allotting the same. It
\nis also\t alleged that  the signatures of Atique Ahmad on the
\ndeclaration vacancy dated 4th August, 1995 as well as on the
\nAgreement dated\t 16th August,  1995 were forged since he has
\nnot signed  these documents.  But the  appellant denied\t all
\nthis.\n<\/p>\n
In order  to prove  the signatures  of Mr. Atique Ahmad, the
\nappellant produced  one Shri  Mahesh Sareena  a hand writing
\nexpert. According  to his  report, the\tdisputed  signatures
\nwere in\t fact those  of\t Atique\t Ahmad.\t Mahesh\t Sareena-the
\nexpert was  not called\tfor cross-examination.\tTo rebut the
\ncancellation of Power of Attorney the contention is that, in
\nspite of  the alleged  cancellation of\tPower of Attorney in
\nhis favour  Atique Ahmed  continued to receive the rent from
\nthe then  tenant Anzar\tHussain. On  or about  20th October,
\n1995 an\t application was  filed on  behalf of  the  landlord
\nunder Section  22(f) of\t the  Act  for\tpermission  to\ttake
\nphotograph of  the alleged forged signatures of Atique Ahmad
\nfor examination\t by the\t expert. But soon thereafter on 21st
\nDecember, 1995\tMohd. Athar,  Advocate who  was one  of\t the
\napplicants in  the said application made an endorsement that
\nthis  application  was\tnot  pressed.  Thereafter,  on\t19th
\nJanuary, 1996  RCO reviewed  his earlier  allotment order by
\ncancelling the earlier allotment order.\n<\/p>\n
He concluded:-\n<\/p>\n
     “…..Tanvar Naiv\tKhan  and  Anjar
\n     Hussain  has   jointly  taken   the
\n     possession whereas\t after\tvacating
\n     the   said\t  premises,   power   of
\n     attorney holder (Mukhtaream) should
\n     have  been\t informed,  so\tthat  he
\n     could give\t application for release
\n     or could give his consent in regard
\n     to allotment  in favour of any side
\n     but nothing  of that  kind happened
\n     as it is clear from the application
\n     dated 15.8.95  of\tallottee.  After
\n     seeing  the   said\t conditions  and
\n     after perusing  the document, it is
\n     clear   that   the\t  allotment   of
\n     premises in  question has\tnot been
\n     done in accordance with law…..”<\/p><\/blockquote>\n
     According to  the said  order the\tallotment order\t was
\ncancelled on two grounds:\n<\/p>\n
(1) that  Mukhtair-e-am should have been informed to so that
\nhe could,  if desired, have moved an application for release
\nor given consent for the allotment,
\n(2)   that allotment  order is\talso bad  as  appellant\t has
\n     obtained possession of the premises in dispute prior to
\n     the allotment order.\n<\/p>\n
     Aggrieved by  the said  order, appellant filed revision
\nbefore Additional  District Judge on 5th December, 1996. The
\nAppellate Court recorded the following findings:\n<\/p>\n
     “So far  as  the  first  ground  is
\n     concerned\tit   appears  from   the
\n     impugned order dated 19.1.1996 that
\n     the learned  R.C. and  E.O. has not
\n     discussed nor  came  to  conclusion
\n     that the  finding of  the\tprevious
\n     R.C. and  E.O. Pannalal, who passed
\n     the allotment order dated 16.8.1995
\n     to the  effect that Shri Atiq Ahmad
\n     was the  Mukhtar Aam  of Dr. Rashiq
\n     Ahmad who had executed rent deed in
\n     favour   of    Sri\t   T.N.\t   Khan,
\n     revisionist  was\tnot   based   on
\n     material  on   record  and\t it  was
\n     obtained\tby   the   allottee   by
\n     practising\t\tfraud\t      or
\n     misrepresentation upon the R.C. and
\n     E.O.. Therefore,  this  opinion  of
\n     the Ld.  R.C and  E.O. that Mukhtar
\n     Aam should\t have been in favour has
\n     no\t legs\tto  stand.   I\tdo   not
\n     understand as  to how  the\t finding
\n     was  recorded   that  Mukhtar   Aam
\n     should  have   been  informed  when
\n     there was\tdescription in the order
\n     dated  16.8.1995  itself  that  Sri
\n     Atiq Ahmed\t was Mukhtar  Aam of Dr.
\n     RAshiq   Ahmad    who    and    the
\n     revisionist  had  entered\tinto  an
\n     agreement of tenancy. Therefore, in
\n     my\t  opinion,    there    was    no
\n     justifiable  reason  with\tthe  Ld.
\n     R.C.  and\t E.O.  to   say\t in  the
\n     impugned order dated 19.1.1996 that
\n     Mukhtar Aam was not informed and he
\n     should have been informed….”<\/p><\/blockquote>\n
     So far  the  question  of\trelease\t in  favour  of\t the
\nlandlord which\tin effect  might prejudice  him for  want of
\nnotice, it  is recorded\t that throughout in the proceedings,
\neven before the RCO, the landlord has not shown or expressed
\nany desire  to have  the release  of  the  premises  in\t his
\nfavour. So  far as  the second\tground is  concerned, it was
\nrejected with the following findings:\n<\/p>\n
\t  “In this respect the allotment
\n     order dated  16.8.95 shows that the
\n     possession of  revisionist was with
\n     the  consent   of\tMukhtar-e-Am  of
\n     Rashiq Ahmed  and this  finding  is
\n     till intact.  Therefore in\t view of
\n     the  finding  dated  16.8.95  there
\n     could not\thave been  any\toccasion
\n     for the  R.C. and\tE.O. to say that
\n     the allotment  order dated\t 16.8.95
\n     was liable\t to be\tset aside as the
\n     revisionist had obtained possession
\n     prior to the allotment order.”<\/p><\/blockquote>\n
     Respondent landlord thereafter filed a writ petition in
\nthe High  Court challenging  this revisional order which was
\nallowed as  aforesaid. Aggrieved  by this  order the present
\nappeal is  filed by  the appellant-tenant.  The\t High  Court
\nmainly relying\ton the\tproviso\t to  Section  16(1)  of\t the
\naforesaid Act  held that  it is\t incumbent on  the tenant to
\nintimate the  landlord in  terms  of  the  proviso  and\t the
\nDirector Magistrate  should have given an opportunity to the
\nlandlord  before   making  allotment   order  under  Section
\n16(1)(a). It  was held\tthat as\t proviso to  Rule 9(3) which
\nrequires that  on receipt  of the  intimation of vacancy the
\nsame must  be notified for information of the general public
\nby pasting  a copy  of the  list of  vacant building  on the
\nNotice Board  specifying the  date on  which the question of
\nallotment is  to be considered is mandatory and the District
\nMagistrate is  obliged to issue notice to the landlord. This
\nis to  give an\topportunity to\tthe landlord, if he so needs
\nand desires.  The appellant contends the High Court erred in
\nholding; “In  the present  case undisputed  no notice  under
\nRule 9(3)  was issued  nor the\tprocedure laid\tdown in Rule
\n8(2) was  followed.” Consequently  further finding  that the
\nlandlord was  not awarded  with any  opportunity is also not
\nsustainable. The bone of contention for the appellant is all
\nthe procedure  as contemplated\tunder the Act and Rules were
\nfollowed. The  vacancy was declared after following all what
\nwas required  under the\t law, which is also evident from the
\nsaid notification  dated 4th  August,  1995  revealing\tthat
\nintimation was sent to the landlord Dr. Rashiq Ahmed through
\nhis power  of attorney holder Shri Atique Ahmad and the same
\nwas also pasted on the Notice Board. This apart, the consent
\nis also\t on record  given by  the said\tAtique Ahmed. He, in
\nfact, participated  initially in  the proceedings before the
\nRent Control  and Eviction  Officer even prior to the review
\napplication. This is revealed by his signatures which he put
\non the Courts record. Further if power of attorney was given
\nin place of Atique Ahmed to Mohd, Athar in January 1995, the
\nrespondent would have shown by any document or evidence, any
\ndemand of  rent by  the said  Mohd. Athar from the erstwhile
\ntenant of the appellant after January 1995. On the contrary,
\nAtique Ahmad  continued to  collect the\t rent and  conducted
\nhimself on  behalf of  landlord as late as 16th August, 1995
\nwhich is on the record of this case. Further even if that be
\nso,  some  intimation  should  have  been  given  to  either
\nerstwhile tenant  or the present appellant-tenant or the RCO
\nregarding this change of authorisation. Hence the High Court
\nwas not\t right to  upheld the  order in review passed by the
\nRCO.\n<\/p>\n
     After  giving   our  consideration\t  to   the   various
\nsubmission made\t by the\t parties  we  find,  the  RCO  while
\ndeciding the  first point  in review  did not  deal with any
\nfact or\t evidence in order to dislodge the findings recorded
\nby the\tRCO in\tits original  order dated  16th August, 1995
\nthat Shri  Atique Ahmad was Mukhtar-e-am of Dr. Rashiq Ahmed
\nand who\t had executed  Rend Deed in favour of the appellant.
\nThere is  no finding  that the earlier order was based on no
\nmaterial or  was obtained  by the  appellant  by  practising
\nfraud or misrepresentation. The High Court decided mainly on
\nthe ground  of violation  of proviso  to Section  16(1) read
\nwith Rule  9(3) and  Rule 8(2)\tas landlord was not afforded
\nany opportunity, which is mandatory, hence depriving him the
\nopportunity under  Section 16(10)  (a) to apply for release,
\nif he so needs.\n<\/p>\n
     We find  in order\tto settle  the\tmatter\tin issue the
\nmost essential\tfinding which  is missing  both by  the Rent
\nControl and  Eviction Officer  and also by the High Court is
\non the\tquestion: who was the authorised person on behalf of
\nlandlord at the relevant time and whether any intimation was
\never communicated  by the  landlord either  to the erstwhile
\ntenant Anzar  Hussain or  to the  RCO about  the  change  of
\nauthorisation for  them to  comply with\t the requirement  of
\nlaw? It\t is  not  in  dispute  that  Atique  Ahmed  was\t the
\nMukhtaream authorised  to act  on behalf  of landlord and he
\ncontinued to do so for a long period including admitting the
\nerstwhile tenant  – Ansar  Hussain to the tenancy. It is the
\ncase for  landlord there  was a change in the authorisation.
\nIf there  is any such change, how is any one to know? Who is
\nto inform whom? What facts are on record? Before drawing any
\ninference of  violation of  the aforesaid  provision, it  is
\nnecessary to  record a clear finding on facts. Intimation of
\nvacancy is  sent to  the landlord  by the  RCO either to his
\nknown  given   address\tor   to\t his  authorised  person  as
\nintimated. Till\t before the said change of authorisation, it
\nis Atique Ahmed who is known to be dealing with the property
\non  behalf  of\tthe  landlord.\tTherefore  the\tquestion  of
\nintimation of this change of authorisation gains importance.
\nWho has\t to intimate  which authority for complying with the
\nprocedure of Rule 8(2), and Rule 9(3) in terms of proviso to
\nSection 16(1). In other words, before holding no opportunity
\nto landlord  or violation  of  the  aforesaid  provisions  a
\nfinding has  to be  recorded as\t aforesaid whether  any such
\nnotice was  sent or not to the landlord, in case it was sent
\nwas it to the proper person? In the present case, admittedly
\nthe landlord  is living\t outside India\tand he gave power of
\nattorney to  Atique Ahmad  which is in the knowledge of both
\nthe RCO\t and the erstwhile tenant. So if, subsequently there
\nis any\tchange as  alleged of the authorisation, the finding
\nhas to\tbe recorded  with regard  to the  person to whom the
\nnotice should  have been  sent by the RCO and whether on the
\nfacts of this case notice sent to Atique Ahmed was proper or
\nbad in\tlaw. This has to be recorded before applying the law
\nof violation  of any  mandatory provision.  In\tthe  present
\ncase, the  notification notifying  the vacancy\tis not under
\nchallenge but  the challenge  is whether  before passing the
\nallotment order\t an intimation\tto the\tlandlord in terms of
\nproviso to  Section 16(1)(a) which is mandatory was given or
\nnot.\n<\/p>\n
     For all  the aforesaid  reasons we\t quash the  impugned
\norder dated 30th July, 1997 passed by the High Court and the
\norder dated  19.1.96 passed  in Review by the RCO and remand
\nthe case  back to  the Rent  Control and Eviction Officer to
\ndecide afresh  after giving  opportunity to the parties, the
\nquestion of the validity of the allotment order in the light
\nof the\tobservation made  above after the stage of notifying
\nthe vacancy,  notwithstanding and  without prejudice  of the
\nobservations made  by  this  Court  or\tHigh  Court  or\t the
\nRevisional Court  as aforesaid.\t Till the  matter is decided
\nthe status  quo between the parties shall continue and shall
\nbe subject to the order to be passed by the Rent Control and
\nEviction Officer. Costs on the parties.\n<\/p>\n
IN THE MATTER OF :<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tanauwwar Nabi Khan vs Rashik Ahmad & Ors on 8 May, 1998 Bench: S.C. Agrawal, S. Saghir Ahmad, A.P. Misra 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-34557","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTanauwwar Nabi Khan vs Rashik Ahmad & Ors on 8 May, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tanauwwar-nabi-khan-vs-rashik-ahmad-ors-on-8-may-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tanauwwar Nabi Khan vs Rashik Ahmad & Ors on 8 May, 1998 - 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