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2008 DIGILAW 1655 (ALL)

LAL CHANDRA JAIN v. XIIIth A. D. J. KANPUR NAGAR

2008-08-14

S.U.KHAN

body2008
JUDGMENT S.U. KHAN, J. Property in dispute, in tenancy occultation of the petitioner, was declared vacant by R.C. and E.O/A.C.M., Kanpur Nagar through order dated 22.8.1997 passed in Case No. 17 of 1995, Panna Lal v. Lal Chandra. Thereafter it was released in favour of landlord-respondent Nos. 3 and 4 on 30.8.1997. Against the said order belated revision was filed which was numbered as Mise. Case No. 67/70 of 1998. A.D.J. XIII Kanpur Nagar rejected the delay, condonation application through order dated 19.7.2000, hence, this writ petition. 2. Heard learned Counsel for both the parties on the merit of the vacancy declaration order, which as also been challenged through this writ petition. 3. Tenant petitioner categorically admitted before R.C. and E.O. that he had constructed his own house bearing No. 133/32-A situate in ‘O’ Block Kidwai Nagar, Kanpur. However of sentenced that the property in dispute, consisting of two rooms, kitchen, latrine and bath room on the first floor of house No. 50/172-A Naughara Kanpur Nagar was being used by him for commercial purpose in the sense that he was having his office in relation to his cloth business. R.C. and E.O. found that even in the voters' list the name of petitioner and his family members was shown from the house in dispute. It was no where stated by the petitioner either before the Courts below or in the writ petition that since start of the tenancy petitioner was using the building in dispute for commercial purpose. It is quite evident that house in dispute which is residential in nature was let out to the petitioner for residential purposes however later on petitioner started using that as an office and shifted his residence to his own house. Accordingly contention of learned Counsel for the petitioner that provision of section 12 (3) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was not applicable is not correct. R.C. and E.O. rightly held that in view of shifting of his residence by the tenant the said provision was squarely applicable. Accordingly contention of learned Counsel for the petitioner that provision of section 12 (3) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was not applicable is not correct. R.C. and E.O. rightly held that in view of shifting of his residence by the tenant the said provision was squarely applicable. Said provision is quoted below: 12 (3).-In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or Town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy, the building under his tenancy: 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. 4. In my opinion as tenant had built his own house, hence vacancy was rightly declared. Release under section 16 of the Act cannot be opposed by tenant vide Gopal Das v. A.D.J.,1 Writ petition is therefore dismissed. 5. Tenant-petitioner is granted six months time to vacate provided that: 1. Within one month from today tenant files an undertaking before the XIIth A.D.J./Revisional Court to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlady-respondent. 2. For this period of six months, which has been granted to the tenant petitioner to vacate, he is required to pay Rs. 6,000/- (at the rate of Rs. 1,000/- per month) as rent/damages for use and occupation. This amount sh9ll also be deposited within one month before the A.D.J. and shall immediately be paid to the landlady-respondent. 6. In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after one month and shall also be liable to pay damages at the rate of Rs. 2,000/- per month since after and month till the date of actual eviction. 7. Similarly, if after filing the aforesaid undertaking and depositing Rs. 6. In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after one month and shall also be liable to pay damages at the rate of Rs. 2,000/- per month since after and month till the date of actual eviction. 7. Similarly, if after filing the aforesaid undertaking and depositing Rs. 6,000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2,000/per month since after six months till actual eviction. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application. Writ Petition Dismissed.