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Sameer Bajaj v. Mifta-Ul-Islam & Another - WRIT - A No. 19906 of 2006  RD-AH 7637 (12 April 2006)
Court No. 28
Civil Misc. Writ Petition No. 19906 of 2006
Sri Sameer Bajaj
Sri Mifta-UI-Islam & Another
Hon'ble Krishna Murari, J.
Heard Sri K.K. Arora, learned counsel for the petitioner and Sri Ashok Kumar pandey appearing for the respondents.
With the consent of the learned counsel for the parties, the writ petition is being finally decided at the admission stage.
The undisputed facts are that respondent no.1 Sri Mifta-UI-Islam is the landlord of the shop in dispute. An application for allotment of the said shop was moved by respondent no. 2 stating therein that the landlord respondent no. 1 has let out the shop in dispute to the petitioner without any order of allotment and hence there is deemed vacancy. The proceedings were contested and it was stated by the petitioner that shop in dispute was constructed after April 1985 as such U.P. Act No. 13 of 1972 was not applicable. The Rent Control and Eviction Officer vide order dated 13.10.2005 declared vacancy. The said order was challenged by the petitioner before this Hon'ble High Court by filing writ petition no. 67301 of 2005. Vide order dated 24.10.2005, the writ petition was allowed and the matter was remanded back to the Rent Control and Eviction Officer to decide the question of vacancy afresh. The parties were given liberty to fresh file evidence in respect of date of construction of the building in dispute.
The petitioner filed his own affidavit and also affidavits of Sri Kamal Thakur, Sri Jagjit Singh and Sri Anil Kumar, who were the tenant of the shops adjoining to the shop in dispute, stating therein that shop in dispute was constructed in the year 1986-87. The petitioner also moved an application dated 6.12.2005 stating therein that he had applied to Meerut Development Authority for obtaining the record regarding construction, date of completion etc. from the office of the Meerut Development Authority but the same have been refused as such the relevant records pertaining to the shop in dispute be summoned.
The District Supply Officer vide order dated 21.3.2006 has again declared vacancy which has been challenged by the petitioner by means of the present writ petition.
It has been urged by the learned counsel for the petitioner that the affidavits filed by the petitioner, Sri Kaml Thakur and Sri Jagjit Thakur have been ignored by the District Supply officer on irrelevant considerations and the affidavit of Sri Anil Kumar has not even been considered. It has further been urged that no order has been passed on the application of the petitioner for summoning the record from the Meerut Development Authority only on the ground that he has failed to produce any evidence to establish that Meerut Development Authority has refused to supply the copy of the documents.
In reply, it has been urged by the learned counsel for the respondents that the affidavit filed by the petitioner in support of his case has rightly been disbelieved. It has also been contended that since the petitioner never made an application demanding the documents from the Meerut Development Authority, the District Supply Officer has rightly not summoned the said documents.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
The foremost question for determination in the case is whether the shop in dispute is covered by the provisions of U.P. Act No. 13 of 1972 or not. This Court while remanding the case back vide order dated 24.10.2005 had given opportunity to the parties to file fresh evidence in respect of date of construction of the building in dispute with the sole purpose that the issue about the applicability of the U.P. Act No. 13 of 1972 may be thrashed out. The best piece of evidence could have been the record of the Meerut Municipal Development Authority which could have been settled the issue once and for all.
The District Supply Officer without any rhyme or reason did not find it fit to summon the said record and disbelieving the affidavits filed by the petition on irrelevant consideration and relying upon the House Tax Assessment produced by respondent no. 2, the prospective allottee for the year 1976 to 1981 recorded a finding that the shop in dispute was constructed in the year 1979 and is covered under the purview of U.P. Act No. 13 of 1972. The District Supply Officer has failed to consider the case set up by the petitioner that the shop in dispute was constructed in the year 1986-87. The best piece of evidence for deciding the issue conclusively would have been the documents which were sought to be summoned by the petitioner from the Meerut Development Authority and admittedly which prayer was illegally rejected by the District Supply Officer.
In view of the above discussions, the impugned judgment passed by the District Supply Officer cannot be sustained and is hereby quashed.
The writ petition is stands allowed.
The case is remanded back to the authority for deciding the question of applicability of U.P. Act No. 13 of 1972 afresh after summoning the relevant record from the Meerut Development Authority as prayed by the petitioner in his application dated 6.12.2005/8.12.2005.
The District Supply Officer is further directed to decide the case expeditiously preferably within a period of four months from the date of production of a certified copy of this order before him.
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