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HEERA LAL GUPTA versus IXTH ADDL. DISTRICT JUDGE, AND OTHERS

High Court of Judicature at Allahabad

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Heera Lal Gupta v. Ixth Addl. District Judge, And Others - WRIT - A No. - 1718 of 1995 [2007] RD-AH 15804 (20 September 2007)

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 AT ALLAHABAD

(Judgment reserved on 06.09.2007)

(Judgment delivered on 20.09.2007)

Civil Misc. Writ Petition No.1718 of 1995

Heera Lal Gupta Vs. IX Additional District Judge, Kanpur Nagar and others

Hon'ble S.U. Khan, J.

In spite of sufficient service, as per office report dated 17.08.2007, no one has appeared on behalf of respondent No.3.

Property in dispute consists of two rooms, one go-down and common latrine & bath room in House No.F-28, situate in Shanti Nagar, Kanpur Nagar. Respondent No.3, Rajkumar Seith, in 1993, filed an application for allotment of the property in dispute stating that he was in possession thereof since 1985 and possession had been delivered to him by the outgoing tenant Nityanand Sinha with the consent of the landlord. R.C. & E.O./ Additional City Magistrate (6th), Kanpur Nagar before whom case had been registered in the form of Case No.53 of 1993 declared the vacancy, through the order dated 01.06.1993, copy of which is Annexure-3 to the writ petition. In the said order, there is a reference to report of R.C.I. dated 25.05.1993. Vacancy was declared on the admission of respondent No.3. Thereafter, by order dated 07.07.1993, R.C. & E.O. allotted the house in dispute to respondent No.3. In the allotment order, it is mentioned that respondent No.3 stated that in the Year 1985, Sri Nityanand Sinha delivered possession to him with the consent of the landlord. Some writing of the landlord was also filed along with affidavit by respondent No.3. Accordingly, building in dispute was allotted to respondent No.3. However, no rent was fixed in the allotment order. Against the allotment order, petitioner landlord filed rent revision No.159 of 1993. 9th A.D.J., Kanpur Nagar, dismissed the revision on 17.10.1994, hence this writ petition.

Copy of complete order-sheet of R.C. & E.O. containing only four dates has been annexed as Annexure-6 to the writ petition. First order is of 25.05.1993 stating that report of R.C.I. has been presented and notices must be issued fixing 01.06.1993. The Court is completely unable to understand the top urgency. Normally, a date after a month is fixed after issuing a notice. In this case, date was fixed only after one week. Thereafter, in the order sheet dated 01.06.1993, it is mentioned that allottee and his advocate were present and heard and order of declaring vacancy was separately passed. Thereafter, it was directed that the case must be put up on 23.06.1993. There is no mention that any notice was directed to be issued to the landlord. On 01.06.1993, it is mentioned in the order-sheet, that prospective and his advocate were present and affidavit had been filed and there was no objection, hence case must be put up on 07.07.1993 for orders. Thereafter, on 07.07.1993, it was mentioned that the separate order had been passed allotting the house in dispute to respondent No.3.

In the order-sheet, there is no order of the R.C. & E.O. holding the services upon the landlord to be sufficient. It has been stated in the writ petition and argued by the learned counsel for the landlord petitioner that no notice was ever served upon landlord and notices were wrongly shown to have been refused by family members of landlord without even mentioning the name of that family member or his relation with the petitioner. In any case, it was the duty of R.C. & E.O. to record that service upon the petitioner was sufficient, which was not done.

Moreover, allotment order is utterly illegal and without jurisdiction as no rent has been fixed therein. By virtue of Section 105, Transfer of Property Act, there cannot be any tenancy without rent.

There is no finding that the three mandatory notices were served upon the landlord, i.e. before inspection by R.C.I. before declaration of vacancy and before allotment. Moreover, building could not be allotted to respondent No.3 as he himself claimed to be unauthorized occupant. In certain circumstances, if building has been let out by the landlord and tenant is continuing with the consent of the landlord, then building may be allotted to such tenant, however for that there must be express consent of the landlord. Landlord nowhere admitted such consent. If landlord had himself let out the building to respondent No.3 and respondent No.3 was continuing as tenant with the consent of the petitioner landlord, then petitioner should have filed his affidavit before the R.C. & E.O. The petitioner since the date of knowledge of the proceedings is vehemently denying his consent. I have discussed this aspect, i.e. service of notice and fixation of rent in allotment order, in detail in the following authorities:-

1."Kusum Lata Yadav (Smt.) Vs. A.D.J., 2004 (2) ARC 789"

2.R.L. Poddar V. A.D.J., 2003 (2) ARC

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

Accordingly, it is held that vacancy declaration order/ allotment order is patently erroneous in law and without jurisdiction.

Accordingly, writ petition is allowed. Impugned orders passed by the Additional District Magistrate and R.C. & E.O. are quashed.

The building in dispute contains two rooms along other amenities and is situate in Kanpur, its rent may not be less then Rs.2000/- per month. Accordingly, it is directed that w.e.f 07.07.1993, when building was allotted to respondent No.3 till date, he shall be liable to pay rent inclusive of water tax etc. to the landlord @ Rs.750/- per month. No further amount shall be payable by him for this period. With effect from today till actual vacation respondent No.3 shall be liable to pay rent @ Rs.1500/- per month. These amounts may be recovered under Rule 24 of the Rules framed under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. For the purposes of the said rule, certified copy of this judgment shall be treated to be certificate in Form-G as mentioned in Rule 24 (2) of the Rules.

Writ petition is accordingly allowed.

Date:20.09.2007

NLY


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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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