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1995 DIGILAW 909 (ALL)

Sita Ram v. Prescribed Authority Varanasi

1995-08-30

S.N.AGGARWAL

body1995
Judgment (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 27-7-1995 passed by the Rent Control and Eviction Officer, declaring shop No. 45/9, Annapurnaganj, Varanasi, as vacant. (2.) THE shop in question was owned by Shri Baldeo Das, husband of Smt. Shanti Devi-opposite party No. 1. After the death of Baldeo Das, Smt. Shanti Devi became owner and landlady of the shop in question. Shri Gopal Lal was the tenant of the shop in question. Shri Bitthal Lal, Shri Sandeep Kumar Gujarati and Ambika Homoeo Pracharak Sansthan, Varanasi, filed application for allotment of the shop in question on the allegation that Shri Gopal Lal had vacated the shop in January 1988, and the shop in question was liable for allotment. THE opposite party No. 4, filed an application for release under Section 16 (1) (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The Rent Control and Eviction Officer, directed the Rent Control Inspector to submit a report regarding the vacancy. The Rent Control Inspector submitted a report dated 5-4-1988 stating that Shri Gopal Lal was the tenant of the shop in question. He vacated the same in January, 1988 and paid the rent to the landlady opposite party Smt. Shanti Devi till the period January 1988. He passed over his possession to Shri Sita Ram (petitioner) m February, 1988, who was illegally in possession and had put a Sign Board on the shop in the name of Survodaya Bal Sangh. He also obtained the statement of Smt. Shanti Devi-landlady and one Gopal Lal the tenant. Gopal Lal made statement that Sita Ram was under his employment and he continued in possession till January, 1988. He was in illegal possession and had illegally put a Sign Board. (3.) ON 1st March, 1990, an objection was filed, purported to be on behalf of Sarvodaya Bal Sangh, through its President (Shri Baikunth Nath Pandey) stating that Sita Ram was member of Sarvodaya Bal Sangh and ho was in possession of the shop in question and opened it for about an hour and it was being used as library for children. The Rent Control and Eviction Officer declared the vacancy of the shop in question on 9th June, 1990 After the vacancy was declared, the petitioner filed an objection on the ground that ho was in fact the tenant and the order of declaring vacancy was passed without affording opportunity to him. The Rent Control and Eviction Officer recalled his order dated 9th June, 1990. The opposite party No. 4 sold the shop in question to respondents 2 and 3 on 16-10-1991. After purchase of the said shop, they filed an application for release under Section 16 (1) (b)of the Act, on the ground that they bona fide required the shop in question for their personal need. (4.) THE petitioner filed objection to the said release application that he was a tenant of the shop in question since prior to they year 1961 and the shop in question was not vacant. THE application under Section 16 (1) (b) of the Act was not maintainable. He filed an affidavit in support of his objection. He stated that he was tenant of the shop in question for the last 30-32 years. He had opened an office and library and the shop in question was for entertainment of the children. He was a member of Sarvodaya Bal Sangh Society. It was stated in para 18 of the affidavit that Gopal Lal could not have vacated the shop as he was, in fact, not in possession. He annexed certain documents with affidavit to establish that he was tenant in the shop in question. : The Rent Control and Eviction Officer, after considering the objection of the petitioner, held that the petitioner was not tenant of the shop in question and declared it vacant by his order dated 27-7-1995. The petitioner has challenged this order in the instant writ petition. (5.) I have heard Shri R. K. Singh, learned counsel for the petitioner and Shri C. K. Parekh, learned counsel for the respondents 2 and 3. (6.) LEARNED counsel for the petitioner urged that there was ample evidence on record which established that the petitioner was a tenant of the shop in question. It is no where stated by the petitioner that Sri Gopal Lal was not tenant at any time of Baldeo Das and after his death, of Shanti Devi respondent No. 4. (6.) LEARNED counsel for the petitioner urged that there was ample evidence on record which established that the petitioner was a tenant of the shop in question. It is no where stated by the petitioner that Sri Gopal Lal was not tenant at any time of Baldeo Das and after his death, of Shanti Devi respondent No. 4. He has filed copy of extract of qunnuinial assessment for the years 1983-88 indicating that Sita Ram is recorded as tenant. In the remark column of the said extract, there is a note indicating that entry has been made on the basis of the order dated 4-11-1988. He has also annexed copy of the electricity bill dated 15-11-1977 and io-10-1975. These documents are net conclusive to prove the fact that the petitioner was tenant of the shop in question. The petitioner was never allotted the shop in question by the Rent Control and Eviction officer under the U P. Act No. 3 of 1947 or under the U. P. Act No. 13 of 1972. Gopal Lal was found tenant. The petitioner has not filed any rent receipt issued by the landlord. Gopal Lal made statement before the Rent Control Inspector that he was tenant of the hop in question and continued to remain in possession till January, 1988 and paid the rent to the landlady for the year till January, 1988. He further stated that Sita Ram petitioner was an employee and being under his employment, he was given possession. The statement of Gopal Lal coupled with the fact that the petitioner has failed to produce any rent receipt indicating that any rent was paid by him to the landlord, the Rent Control and Eviction Officer was justified in holding that the petitioner was not tenant of the shop in question. Next submission of the learned counsel for the petitioner is that there was evidence on record to establish that the petitioner was in possession since prior to they year 1976 and, therefore, the petitioner was entitled to the benefit of Section 14 of the U. P. Act No. 13 of 1972. This section is applicable when it is proved that the petitioner was living in his own right with the consent of the landlord. There is no evidence that the petitioner was living with the consent of the landlord. This section is applicable when it is proved that the petitioner was living in his own right with the consent of the landlord. There is no evidence that the petitioner was living with the consent of the landlord. On the other hand, the statement of Smt. Shanti Devi and statement of Gopal Lal indicate that the petitioner was employee of Gopal Lal and he was in possession in that capacity. There is no evidence to the effect that the petitioner was living as tenant with the consent of the landlord Baldeo Das and after his death Smt. Shanti Devi respondent No. 4. In absence of any pleading and proof, the petitioner is not entitled to the benefit of Section 14 of the Act. (7.) THE last submission of the learned counsel for the petitioner is that the Rent Control Inspector has submitted the report in violation of Rule 8 (2) of the Rules framed under U. P. Act No. 13 of 1972 which provides that inspection of the building so far as possible, shall be made in the presence of the landlord and the tenant or any other occupant. In the present case, the Inspector himself reported that shop was found locked and it was reported that the petitioner was in possession. (8.) THE only question remained to be decided, was that the capacity in which the petitioner was in possession and his status. The petitioner himself filed objection before the Rent Control and Eviction Officer and he was given full opportunity of hearing. The version of the petitioner that he was in possession of the shop in question as tenant was not accepted and he was found to be in unauthorised occupation after erstwhile tenant-Shri Gopal Lal vacated. The shop in question shall be treated as vacant under law and the Rent Control and Eviction Officer is entitled to pass an appropriate order in accordance with law under Section 16 of the Act. (9.) IN view of the above, there is no merit in the instant writ petition and it is, accordingly, dismissed. Petition dismissed.