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Nil Kamal v. State Of U.P. And Others - WRIT - A No. 46274 of 2006 [2006] RD-AH 14381 (25 August 2006)


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  Court No.7

     Civil Misc. Writ Petition No. 46274 of 2006

Nil Kamal                                        Versus           State of U.P. and others

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

          This writ petition has been filed praying for a writ of certiorari quashing the impugned notice dated 29.7.2006 issued by the Rent Control and Eviction Officer, Moradabad.

From perusal of the impugned notice it appears that late Sri Ram Autar Rastogi was a tenant in the house in question of landlord, Sri Anoop Shah who has been arrayed as respondent no.3 to the writ petition. Both the sons of late Sri Ram Autar Rastogi namely, Umesh Chandra and Suresh Chandra have built their own house in the Municipal limit in the city of Moradabad and shifted there vacating the house in dispute which was under the tenancy of his father.

An inspection was made by the Rent Control Inspector who submitted his report dated 17.11.2003 to the effect that both the sons of late Sri Ram Autar Rastogi have built their own house and on being contacted they informed the Rent Control Inspector that the house in dispute is still under their tenancy consisting of 3 rooms, latrine, bath room and a small kothary.

  The contention of the counsel for the petitioner is that application filed          by the landlord under Section 34 read with Rule 22F of U.P.Act No. 13 of 1972 in pursuance of which notice under Section 13/31 of the Act has been issued to the petitioner for entering into the premises without any allotment order is illegal.

    From perusal of the application for allotment of the petitioner appended as Annexure-2 to the writ petition, it appears that the petitioner in reference to item no. 17 '' Any other relevant information'? has stated that  "presently disputed house completely locked by sitting tenants."

    Once the sitting tenant has constructed his own house and has shifted in his house he has no right to occupy the tenanted portion of the house.  He can not hold over the said portion or induct any other person even his relative as he himself had no legal right to occupy the accommodation after he has built his own house. The portion under his tenancy becomes vacant in the circumstances and has to be allotted or released in favour of the landlord in accordance with law.

    Admittedly, the house in question has not been allotted to the petitioner and his application for allotment is still pending, hence induction by the erstwhile tenant is wholly illegal and cannot vest with him any legal right.

   For the reasons stated above, the writ petition is dismissed.

Dated  25.8.2006




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