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Lakshman Swaroop And Others v. R.C. & E.O. And Another - WRIT - A No. 17325 of 1985 [2004] RD-AH 1642 (7 December 2004)


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Court No. 26

Civil Misc. Writ Petition No. 17325 of 1985

Lakshman Swaroop and others                                      ........Petitioners.


Rent Control & Eviction Officer

Muzaffarnagar and another                                            .......Respondents.


Hon'ble Vikram Nath J.

This writ petition has been filed by landlord for quashing the order dated 8.11.1985 passed by Rent Control & Eviction Officer, Muzaffarnagar declaring vacancy u/s 12 of U.P. Act No. 13 of 1972 (hereinafter referred to as Act) in respect of the premises in dispute.

The dispute relates to a portion of house No. 134, Civil Lines North Muzaffarnagar which was in the tenancy of Brahmdutt Sharma. The petitioner who retired from service on 30.6.1977 from District Moradabad filed an application under Section 21(1)(a) of the Act for release of the premises in dispute on the ground that after retirement, he and his family members who were residing at Moradabad on account of his posting will shift to Muzaffarnagar and will require the premises in dispute. It was further stated in the release application that there was already a Printing Press in the building which needed to be shifted to a different portion of the house and the part so vacated by the Press and the dispute premises in occupation of Brahmdutt Sharma would be required and used for residential use. The said release application was registered as P.A. Case No. 376 of 1977 and was allowed in terms of a compromise by the Prescribed Authority, vide order dated 02.02.1978. Under the compromise the tenant Brahmdutt Sharma was to vacate the premises on 01.05.1982. Subsequently the tenant, Brahmdutt Sharma failed to handover the possession on the fixed date and on compulsion  an application was filed by the landlord for forcibly evicting the tenant Sri Sharma. The Munsif Magistrate, Muzaffarnagar by order dated 4.5.1982 directed the Station Officer, Incharge Kotwali MuzaffarNagar to ensure the delivery of possession to the landlord. Subsequently the petitioner came into possession on 01.07.1982. Thereafter   an application was filed by one Roshan Lal alleging that the landlord had obtained collusive order of release u/s 21(1)(a) of the Act and need set up by him was not bonafide and therefore, there existed vacancy in premises in dispute and the same was open for allotment.

The landlord filed his objections and affidavit denying the allegations of vacancy and stated that the need set up was bonafide and that he is using the premises for his own use and occupation and for the family members Further objection was that an order passed u/s 21(1)(a) of the Act cannot be examined u/s 12 of the Act and the application filed by Sri Roshan Lal is not maintainable and liable to be dismissed. The Rent Control & Eviction Officer did not agree with the contention of the landlord and held that the order of release-dated 2.2.1978 was collusive and had been passed without actually considering the need of the landlord. It held that the need was not bonafide and accordingly declared vacancy vide order dated 08.11.1985 ignoring the release order. Aggrieved by the same, the present writ petition has been filed by the landlord.

I have heard Sri S.K.Shukla, learned counsel for the petitioner. Despite service of notice, Roshan Lal respondent no.2 has not come forward to contest this petition.

The contention of counsel for the petitioner is that an order passed u/s 21(1)(a) of the Act for release of the premises cannot be specifically looked into by the Rent Control Eviction Officer in proceedings u/s 12/16 of the Act. The Rent Control and Eviction Officer had no authority or jurisdiction to examine the correctness of the order and the findings recorded by the Prescribed Authority under section 21(1) of the Act. There could be no vacancy in the premises in dispute once it had been released in favour of the landlord under section 21(1) of the Act. The proceedings for allotment were not maintainable.

Having considered the contention of the learned counsel for the petitioner and the impugned order I find that the Rent Control Eviction Officer exceeded its jurisdiction by holding that the order passed by the Prescribed Authority, was collusive in nature, and that the need examined by the Prescribed Authority, was not correct. In the circumstances the writ petition is liable to be allowed.

Accordingly, the writ petition succeeds. The impugned judgment passed by Rent Control Eviction Officer dated 8.11.1985 is quashed and the proceedings for allotment pending before Rent Control and Eviction Officer Muzaffarnagar is also quashed.




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