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MUNNA LAL versus RENT CONTROL & EVICTION OFFICER VARANASI AND OTHERS

High Court of Judicature at Allahabad

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Munna Lal v. Rent Control & Eviction Officer Varanasi And Others - WRIT - A No. - 19496 of 2005 [2007] RD-AH 18404 (28 November 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

Court No. 7

CIVIL MISC. WRIT PETITION NO. 19496 OF 2005

Munna Lal - Petitioner

Versus

Rent Control & Eviction Officer/

ADM, Varanasi and others - Respondents

Connected with

CIVIL MISC. WRIT PETITION NO. 19999 OF 2005

Smt. Sita Devi - Petitioner

Versus

Rent Control & Eviction Officer/

ADM, Varanasi and others - Respondents

Hon'ble Sunil Ambwani, J.

Heard Shri Ajai Kumar Singh, learned counsel for the petitioner, alleged to be lawful tenant and Shri Ashwani Mishra, learned counsel for the respondent-landlord. The respondent purchased the property in a public auction on 17.10.2000.

On an application made by the landlord for declaration of the vacancy, the Rent Control Inspector caused an inspection and found that the petitioner was let out the shop in the year 1984-85, and that the shop appears to be 15-20 years old. The shop in question is on the ground floor. The petitioner-tenant did not file any affidavit or evidence in the courts below and simply stated that unless the release application is filed, the proceedings for the vacancy cannot be taken. In para-3 of writ petition No.19496-2005, it is stated that he was the tenant of the shop with the consent of the landlord-Shri Vinay Prakash-respondent no. 3 since July 1984 and has been paying the rent regularly. In para-27, however he states that the shop in question is a new construction, which was raised subsequently. The construction was started in 1985 and completed in December 1985 i.e. after 29.4.1985, as such being a new construction, the provisions of the UP No. XIII of 1972 are not applicable. The then owner and the landlord Shri V.K. Jaiswal had purchased the property through sale deed dated 7.4.1980. With respect to mutation of name of purchaser, the Tax Inspector, Nagar Nigam, Varanasi submitted his report dated 25.8.1983 to the Tax Superintendent, wherein it was stated that the shop in question is having only one shop ('Galiyaranuma') and there is only one kothari. The respondent no. 1, recorded the findings on the basis of assessment register from 1976 onwards in respect of the ground floor building. The shop in question was found to be a new construction.

The petitioner did not file any affidavit or produce any material to show that the shop was constructed prior to 26.4.1985. The evidence produced by the landlord also did not establish on record that the shop was constructed prior to 26.4.1985. In the sale deed of the year 1980, the description of the property discloses the constructions on only ground floor. In the municipal records, also the number of shops is not given.

The petitioner has relied upon the judgments in Mansha Ram vs. S.P. Pathak and others, 1984 (1) ARC 17 (SC) para12 and Smt. Brij Bala Jain vs. Amar Jeet Kaur, 1996 (2) ARC 474, followed by this Court in Abdul Khaliq vs. ADM Varanasi 2007 (2) ARC 629 and Anil Kumar Dixit vs. Smt. Maya Tripathi 2006 (1) AWC 649 in which it was held that 12 year's period should be taken as reasonable time for initiating the proceedings for vacancy under the Statute from the date a cause of action arises. It is contended that even if, the letting is made in 1985 after the building was constructed (before 26.4.1985), the letting by the previous landlord cannot be questioned and would estop the subsequent owner and landlord from claiming that the premises were occupied without allotment order and would be deemed to be vacant under Section 12 of the Act.

I do not find that there was sufficient material on record to justify the findings with regard to the date of constructions and letting. The previous landlord did not appear, nor there was any proof of payment of rent.

In the facts and circumstances, I am of the opinion that the findings, recorded by the Rent Control & Eviction Officer, Varanasi in the order dated 17.2.2005, were not sufficient for declaration of the vacancy.

Both the writ petitions are allowed. The order dated 17.2.2005 passed by respondent no. 1 in case no. 80 of 2001 and 81 of 2001 is set aside. The matter is sent back to the Rent Control & Eviction Officer to consider the question of vacancy afresh in the light of the observations made in the judgment and the case law cited by the parties. It will be appropriate that he will decide the matter within three months. The parties will be allowed to produce all the materials, which they like to produce and to prove it. They will not be given any adjournment unless it is beyond the control of that party. Both the parties will put appearance before the Rent Control & Eviction Officer on or before 17.12.2007.

Dt. 28.11.2007

RKP

Hon'ble Sunil Ambwani, J.

For orders see my order of date passed on separate sheets.

Dt.28.11.2007

RKP/-

Hon'ble Sunil Ambwani, J.

For orders see my order of date passed on separate sheets.

Dt.28.11.2007

RKP/-


Copyright

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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