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1979 DIGILAW 57 (ALL)

Gulshan Kumar v. Charan Singh

1979-01-10

K.C.AGRAWAL

body1979
JUDGMENT K.C. Agrawal, J. - This writ petition is directed against a judgment of the Vlth Additional District Judge, Kanpur dated 31st May, 1976 dismissing an appeal preferred by the petitioner against a judgment of the Rent Control and Eviction Officer. 2. The dispute in this case is with respect to Quarter No. 10 Premises No. 118/23 Kaushalpuri, Kanpur. The accommodation consists of a room, a varandah, kitchen, latrine, bathroom and a courtyard. This building originally belonged to one Brij Kishore Agarwal. On 23-3-1973, Charan Singh, respondent No. 1 filed an application for the allotment of the accommodation on the allegation that since the petitioner had built his own house in Lajpat Nagar, Kanpur and had shifted to the said house after vacating the same, the disputed house was vacant. On this application, the Senior Inspector Rent Control was sent for inquiry who reported on 12-4-1973 that the accommodation in question had been locked by the petitioner. In 17-4-1973, the Rent Control and Eviction Officer notified the vacancy. Thereafter, on 21-4-1973 the petitioner filed an objection claiming that the premises was not vacant and that his son was residing therein. This objection came up for hearing before the Rent Control and Eviction Officer on 3rd May, 1973. On that date, the petitioner was absent whereas respondent No. I was present. The case was fixed for 5th May, 1973 for orders. On that date the Rent Control and Eviction Officer allotted the accommodation to respondent No. 1. 3. On 10-5-1973, the petitioner filed an application under section 16(5)of U.P. Act No. 13 of 1972 for setting aside the allotment order dated 5-5-1973 made in favour of respondent No. 1 on the ground that the same had not been made in accordance with law. In this application the petitioner alleged that he was carrying on the business at Chauk Kanpur in the name and style of "Kanpur Glass House" and had been maintaining the godown in the accommodation in question for the last six or seven years. It may be noted that the objection filed earlier on 21-4-1973 was different. He asserted in that objection that his son was in possession of the house. In this objection he claimed that the same was used tor business purposes. 4. The objection was contested by respondent No. 1. It may be noted that the objection filed earlier on 21-4-1973 was different. He asserted in that objection that his son was in possession of the house. In this objection he claimed that the same was used tor business purposes. 4. The objection was contested by respondent No. 1. He claimed that the premises was neither being used by the petitioner for the business purpose nor for the residence of his son. 5. Before the Rent Control and Eviction Officer, the parties filed evidence. The Rent Control and Eviction Officer held on 25.6.74 that the petitioner was not using the premises for the purposes of keeping his goods. On this finding the Rent Control and Eviction Officer dismissed the application. The petitioner took up the matter in appeal. The Appellate Authority dismissed the same on 31st May, 1976 holding that the petitioner had been taking inconsistent cases to nullify the allotment order and that he was neither using the premises for the purposes of keeping his goods nor for the residence of his son. In this view of the matter, the appellate authority found that the allotment order was valid. 6. It, however, appears that during the pendency of the appeal before the Additional District Judge, the petitioner purchased the property in dispute and brought this fact to the notice of the Appellate Authority. The petitioner contended that as he had already filed a release application under section 16(l)(b) of the Act, the allotment order be set aside and the matter may be remanded to the Rent Control and Eviction Officer for a fresh decision. The Appellate Authority did not accept the plea and dismissed the appeal. Aggrieved, the petitioner preferred the present writ petition. 7. Sri K. N. Dayal, counsel appearing for the petitioner contended that as under section 12(3) of U.P. Act No. 13 of 1972 a vacancy could be declared on the ground set up by respondent no. 1 on the expiry of one year of the enforcement of U.P. Act No. 13 of 1972, the Rent Control and Eviction Officer neither had any jurisdiction to declare the house to be vacant on 3.5.73, nor to pass any allotment order on 5.5.73. 1 on the expiry of one year of the enforcement of U.P. Act No. 13 of 1972, the Rent Control and Eviction Officer neither had any jurisdiction to declare the house to be vacant on 3.5.73, nor to pass any allotment order on 5.5.73. He urged that the Rent Control and Eviction Officer could have jurisdiction to pass an allotment order only after the expiry of the period of one year of the enforcement of U.P. Act No. 13 of 1972 on this submission, the counsel contended that the allotment order dated 5-5-1973 made in favour of the respondent no. 1 was liable to be set aside. 8. Proviso to sub-section (3) of Section 12 reads as under : "Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date." 9. It cannot be denied that under the proviso to section 12(3), a vacancy could be deemed to have occurred after the expiry of a period of one year from the said date. In the instant case, however, neither the declaration of vacancy on 3.5.1973 nor the allotment order dated 5-5-1973 could be quashed on this ground. I have already stated that while dismissing the appeal, the Additional District Judge found that the premises had been vacated by the petitioner. It was held that the petitioner was neither occupying it for residential purpose nor for commercial. That being so, the premises was vacant and, as such, an allotment order could be made under section 16 of U.P. Act No. 13 of 1972. Accordingly, even if the allotment order made in favour of respondent no. 1 could not be supported on the ground of deemed vacancy under sub-section (3) of Section 12 of U.P. Act No. 13 of 1972, the same can be upheld on the ground of actual vacancy. 10. Sri K. M. Dayal learned counsel for the petitioner stressed that as in the instant case, the Rent Control and Eviction Officer proceeded to pass the allotment order on the basis of the deemed vacancy, this Court should not uphold the order on the basis of actual vacancy. 10. Sri K. M. Dayal learned counsel for the petitioner stressed that as in the instant case, the Rent Control and Eviction Officer proceeded to pass the allotment order on the basis of the deemed vacancy, this Court should not uphold the order on the basis of actual vacancy. What is required for passing an allotment order is actual vacancy or likely vacancy. Section 12 further contemplates a case of deemed vacancy. In all these three cases an allotment order is permissible to be made under section 16 of the Act. Therefore, a Court has to see whether a vacancy of any of the three categories occurred. In the instant case, despite the finding, recorded by the Appellate Authority that the house as vacancy, I am not prepared to set aside the allotment order and to accept the submission made by the learned counsel for the petitioner. 11. In the result, the writ petition fails and is dismissed with costs to respondent No. 1.