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Vinay Soni v. Sri Vinod Chandra Mishra & Others - WRIT - A No. 13272 of 2002 [2005] RD-AH 1935 (12 August 2005)


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Civil Misc. Writ Petition No.13272 of 2002

Vinay Soni         Vs.          Sri Vinod Chandra Mishra & others


Hon'ble Vikram Nath J.    

This petition has been filed by the occupant of the premises in dispute claiming to be the tenant, for quashing the order dated 7.1.2002 passed by the Vth Addl. City Magistrate, Kanpur Nagar declaring vacancy in the premises in dispute.

The dispute relates to a part of the first floor of premises no. 8/76 Arya Nagar Kanpur Nagar of which respondent 1 to 4 are the owners and landlord. It is alleged that Sri Harbansh Lal Soni father of the petitioner was tenant in the premises in dispute since 1971. In the year 1973 Suraj Prakash Soni, the brother of the petitioner was married to Dr. Swaraj Bala Rawat and she also started living in the premises in dispute along with other family members after her marriage. It is further alleged that Smt. Rama Devi mother of respondent no.4 filed an application for release of the premises under section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) which was registered as Rent Case No. 102 of 1987. During the pendency of the release application referred to above, Dr. Saroj Bala daughter in law of Sri Harbansh Lal (tenant) was allotted official accommodation in the UHM Hospital Campus Kanpur where she shifted along with her husband Suraj Prakash Soni. Smt. Rama Devi set up a false case alleging that Dr. Saroj Bala was the tenant in the premises in dispute and she having been allotted an official accommodation there would be deemed vacancy under law and accordingly on 23.05.88she applied for declaration of vacancy and also for release under section 16 of the Act before the Rent Control and Eviction Officer, Kanpur. In the mean time Smt. Rama Devi the landlady got the application under section 21(1)(a) of the Act dismissed in default on 7.6.1988, whereas the intimation of vacancy was given on 23.5.88. The Rent Control Eviction Officer by order dated 14.6.88 declared vacancy and on 28.6.88 passed an order releasing the premises in dispute in favour of the land lady. Harbansh Lal on coming to know of the said order filed revision against the same, which was registered as Revision No. 157 of 1988. In the mean time in another declaratory suit being Original Suit No. 1508 of 1988 Harbansh Lal was declared tenant of the premises in dispute. In the mean time, the revision No. 157 of 1988 came up for hearing and the revisional Court vide order dated 20.5.1996 allowed the revision and after setting aside the orders of vacancy and release, remanded the matter for fresh disposal after giving notice and opportunity to the revisionist tenant. The landlord preferred a writ petition against the order of remand, which was registered as Writ Petition No. 27047 of 1996 the said writ petition was disposed of by order dated 31.10.2000 and it was provided that the Rent Control Eviction Officer while deciding the matter afresh will not be influenced by any observations or findings recorded by the revisional Court and will proceed to decide the case  afresh. The petitioner applied for issue of fresh commission. However, the Rent Control Eviction Officer by the impugned order 7.1.2002 has again declared vacancy, against which this writ petition has been filed.

I have heard Sri R.N. Bhalla learned counsel for the petitioner and Sri A.N. Sinha learned counsel for the respondents 1 to 4 and Sri R.N. Nigam learned counsel for the respondent no.5 Dr. Saroj Bala.

Learned counsel for both the sides have argued at length and have drawn my attention to various documents annexed with the petition and the counter affidavit. However, upon perusal of the impugned order I am not inclined to examine the evidence referred to by the counsels for the parties as according to me the impugned order is liable to be set aside for the simple reason that Rent Control Eviction Officer has not applied his mind at all while declaring vacancy. There is no discussion of the evidence on record  before it, made by the Rent Control Eviction Officer in the impugned order and in a cursory manner he has held that vacancy exists. Even though the judgment of the Rent Control Eviction Officer is very lengthy but it has only repeated  the pleadings of both the parties and the written submissions filed by them. Thereafter in a few lines he has rejected the application for fresh issue of commission filed by the petitioner and without discussing the evidence on record  has held that vacancy  exists. Such a judgment can not be held to be valid in the eyes of law.

In view of the above, judgment of the Rent Control and Eviction Officer dated 07.01.2002 cannot be sustained and is liable to be set aside. The matter is remanded to the Rent Control and Eviction Officer, Kanput Nagar  to consider and decide all the issues based upon the material on record and record findings after appreciation of the evidence.

In the result the writ petition succeeds and is allowed. The impugned order dated 7.1.2002 passed by Rent Control and Eviction Officer, Kanpur Nagar is set aside and the matter is remanded for a fresh decision in accordance with law and in the light of the observations made above.




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