Bhupendra Kumar Rajpoot Vs. Rent Control and Eviction Officer and ors. - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]v.k. bist, j.1. heard the learned counsel for the parties and perused the record.2. learned counsel for the parties conceded that the present writ petition may be decided at the admission stage.3. present petition is directed against the order dated 05.03.2010 passed by rent control and eviction officer/ city magistrate, haridwar/respondent no. 1 (for brevity the r.c. & e.o.) in the case no. 12 of 2008 under section 16(1) (a) of the u.p. act no. 13 of 1972 (for short the 'act') by which the r.c. & e.o. has declared the disputed accommodation as vacant and invited applications for allotment.4. brief facts, as alleged in the writ petition, are that the petitioner is residing in a part portion of a big building known as ganga mandir patnawala, haridwar in the capacity and status of a tenant. in the assessment list of nagar palika in the column of landlord there consist the names of rajeshwar prasad @ swami raghuwar das, tarkeshwar prasad, rameshwar prasad, dev narayan prasad, satya narayan prasad and ravi kumar gupta. out of them one dev narayan received the rent from the petitioner time to time on behalf of co-landlords. after the death of dev narayan, other co-landlords never demanded any rent from the petitioner and the petitioner could not pay due rent in absence of correct addresses and status of other co-landlords and their respective shares in the property in question. smt. trapti sanyal, mother-in-law of smt. alpana sanyal/respondent no. 3 also is the tenant in one part of the said premises. after the death of dev narayan no one claimed or demanded the rent from the tenants. it is alleged that the respondent no. 2 in collusion with respondent no. 3 (claiming herself as landlady) had moved an application for allotment before r.c. & e.o. showing the petitioner as an unauthorized occupant. it is further alleged that on taking cognizance on the allotment application, the respondent no. 1 invited report of spot inspection through awas nirikshak, who also in collusion with the respondent nos. 2 & 3 prepared an inspection report, which is totally arbitrary, false and fabricated one. it has been further asserted in the writ petition that statutory provision of rule 8 of u.p. urban building (regulation of letting, rent & eviction) act, 1972 stipulates that inspection of any building under this rule is only possible by a gazetted officer. there is no post of awas nirikshak in the 'act' and he cannot make such inspection. hence, the order to inspect the building by awas nirikshak and the alleged report collusively prepared in compliance thereof, are totally void, illegal and without jurisdiction, therefore, the further proceeding is also void, illegal and is not tenable in the eyes of law as in the inspection report the construction is shown 20-25 years old. it is stated that provisions of the 'act' is not applicable in the matter and property in question under the tenancy of petitioner is clearly exempted from the application of the 'act'. the petitioner submitted his objection against the inspection report and also against proposed allotment. it is further averred in the petition that the alleged inspection report is also prepared in contravention of provision of rule 8(2) of the 'act' while the awas nirikshak did not make any efforts to inform the petitioner or landlords.5. the r.c. & e.o. upon hearing the learned counsel for the parties declared the vacancy vide order dated 05.03.2010 on the ground that the petitioner does not have any allotment order, therefore petitioner is an unauthorized occupant. feeling aggrieved with the order of r.c. & e.o., the petitioner has filed the instant petition.6. learned counsel for the petitioner argued that the order to inspect the building by awas nirikshak and the alleged report collusively prepared in compliance thereof, are totally void, illegal and without jurisdiction, therefore, the further proceeding is also void, illegal and is not tenable in the eyes of law. he further argued that provision of the 'act' is not applicable in the matter and property in question under the tenancy of petitioner is clearly exempted of any application of the 'act'. it is pertinent to mention here that there was no valid allotment order in favour of the petitioner. this fact is not disputed.7. on the other hand, the learned counsel for the respondents have argued that since the disputed accommodation has been occupied by the petitioner without an allotment order in his favour, hence the petitioner shall be deemed to be an unauthorized occupant like a trespasser. in this regard the learned counsel for the respondents relied upon the judgment of the apex court in the case of nutan kumar and ors. v. ii addl. district judge and ors. reported in : (2002) 8 s.c.c. page 31 wherein it has been held that the 'act' specifically provides that a person who occupies the premises, without an allotment order in his favour, shall be deemed to be an unauthorized occupant of such premises. he further submitted that in the present case, since the petitioner is in unauthorized occupation, he is like a trespasser.8. no suit has been filed by the respondents, but an application under section 16(1)(a) of the act was filed before the r.c. & e.o. for allotment of the disputed accommodation. on the application, enquiry was made and as per procedure vacancy was declared by the r.c. & e.o.9. for the discussion aforesaid, i do not find any perversity or infirmity in the impugned order passed by the r.c. & e.o. thereby declaring the vacancy. the order dated 05.03.2010 does not suffer from any manifest error of law. the writ petition is devoid of merit and is liable to be dismissed outright at the threshold.10. the writ petition is dismissed in limine. however, liberty is given to the petitioner either to move application for allotment before the r.c. & e.o. concerned or, in case, if the petitioner is aggrieved with the final order, it will be open for him to assail the same. if the allotment application is moved, the rent control and eviction officer shall also consider the application of the petitioner and decide the same in accordance with the provisions of the act and the rules framed under the act.11. no order as to costs.12. interim relief application (clma no. 2119/10) stands disposed of.