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GAYA PRASAD RASTOGI AND OTHERS versus THE XII ADDITIONAL DISTRICT & SESS. JUDGE, KANPUR N. & ORS.

High Court of Judicature at Allahabad

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Gaya Prasad Rastogi And Others v. The Xii Additional District & Sess. Judge, Kanpur N. & Ors. - WRIT - A No. 9379 of 2003 [2006] RD-AH 8785 (2 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 51)

Civil Misc. Writ Petition No. 9379 of 2003

Gaya Prasad Rastogi and others Versus XII Additional District and Sessions Judge, Kanpur Nagar and others.

Hon'ble S.U.Khan J

List revised. No one appears for the contesting respondent.

Heard Sri P.N.Khare learned counsel for the petitioner.

It is a clear case of house grabbing. Merely on the basis of likely vacancy and without issuing any notice to the landlord an accommodation containing five rooms and other amenities situate in Kanpur has been let out to respondent No.3 Smt Satnam Kaur without fixing any rent and she is continuing in possession for about 10 years. Rent Control Inspector filed his report on 27.1.1995, copy of which is annexure 1 to the writ petition. In para 5 of the report, it was mentioned that notice before inspection was served upon the landlords. In the column of landlord in the allotment application name of Lala Lallu Mal was mentioned who had already died leaving behind the petitioners as his heirs. The process server also reported that notice could not be served as noticee had already died. Copy of the said report is annexure RA-IV to the rejoinder affidavit. Alongwith report of R.C.I a declaration by the previous tenant G.K.Vaish was annexed mentioning therein that he was intending to vacate the premises by 20.2.1995. R.C & E.O on 20.2.1995 issued information to the general public that the building in dispute was likely to fall vacant. Thereafter on 28.2.1995 building in dispute was allotted to respondent No.3. The order was passed in Rent Case No. 25 of 1995 by R.C & E.O / A.C.M. III Kanpur Nagar.

R.C & E.O in the allotment order dated 28.2.1995 mentioned that apart from respondent No.3 Smt Satnam Kaur one more application for allotment by Surendra Kumar Pandey was received. R.C & E.O found that respondent No.3 was entitled to allotment hence building in dispute was allotted to respondent No.3. Form B was also issued on the same date. Neither in the allotment order nor in Form B any rent was fixed. By virtue of definition of lease/ tenancy given under section 105 T.P. Act there can not be any tenancy / lease without rent. By virtue of section 16(9) of U.P. Act No. 13 of 1972 it is mandatory for R.C. & E.O to fix presumptive rent in the allotment order. Notice before inspection, notice before declaration of vacancy and notice after declaration of vacancy and before allotment are mandatory. Notice at no stage was issued to the landlord.

Thereafter landlord filed release application on 6.4.1995 and also review petition on 29.9.1997 seeking review of allotment order dated 28.2.1995. Release application was registered as case No. 123 of 1996 on the file of R. C & E.O / Additional City Magistrate (II), Kanpur Nagar. Review petition and release application were dismissed on 4.7.1998. Against the said order, petitioner filed Rent Revision No. 35 of 1998. A.D.J court No. 12, Kanpur Nagar dismissed the revision on 13.12.2002, hence this writ petition.

It appears that some Vakalatnama of one Sri U.K.Malviya advocate purporting to be on behalf of one of the petitioners Gaya Prasad was filed. There does not arise any question of representation of petitioner No. 1before R.C & E.O until passing of release order as neither any of the landlords was served nor there is any mention in the vacancy declaration order or allotment order that any of the landlords were represented. Petitioner No.1 outrightly denied about engaging Sri U.K.Malviya.

In any case outgoing tenant was duty bound to first deliver possession to the landlord and only thereafter possession could be delivered to the tenant/ allottee. Respondent No.3 got possession directly from outgoing tenant.

From the above I am convinced that it is a case of house grabbing and respondent No.3 illegally got possession of the house in dispute and she is also not paying any rent of the said accommodation. In the following authorities I have held that if any of the notices before inspection and before declaration of vacancy and before allotment is not issued to the landlord then allotment order is illegal. In the said authorities I have also held that in case rent is not fixed in the allotment order allotment order is illegal. It has also been held that if allottee takes possession from the out going tenant directly, it is illegal.

C.K.Nagarkar Vs. A.D.J Gorakhpur 2004 (2) ARC 349.

Kusum Lata Yadav Versus A.D.J 2004(2) ARC 789

Accordingly writ petition is allowed. Both the impugned orders including the allotment order dated 28.2.1995 are set-aside.

It is directed that possession of the house in dispute numbered as 118/180 (or 118/181)(flat No.5), Kunj Vihar Mohalla Kaushalpuri, Kanpur shall immediately be delivered to the petitioner. Any laxity on the part of R.C & E.O in this regard will not be appreciated by this court.

Respondent No.3 Smt Satnam Kaur is directed to pay damages to the landlord petitioners at the rate of Rs. 2000/- per month since the date of taking possession till the date of actual vacation. These damages shall be recovered by the Collector, Kanpur Nagar like arrears of land revenue within six weeks from the date of receipt of certified copy of this order. This extra ordinary procedure is directed to be followed in view of the fact that respondent No.3 has grabbed the house in dispute against all norms and in utter violation of legal provisions. In the allotment order accommodation in dispute is mentioned as containing three rooms, one drawing room, two verandahs, one study room, one kitchen, store, Aagan and latrine bathroom situate on ground floor.

Let a copy of this order be given free of cost to Sri Arvind Mohan Srivastava learned standing counsel within a week for immediate communication to Collector and R.C & E.O, Kanpur Nagar.

2.5.2006

Waqar


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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