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2012 DIGILAW 1043 (ALL)

Mishri Lal v. Maya Dixit and another

2012-05-02

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.— 1. This writ petition is directed against the impugned order dated 30.9.2010 passed by the Additional District Judge, Kanpur in Rent Control Revision No. 25 of 2010 upholding the order dated 28.8.2009 and 25.2.2010 passed by the Rent Control and Eviction Officer (in short "RCEO") whereby the disputed premises was declared vacant and released under Section 16 (1) b of the UP Act No. 13 of 1972 (in short "Act") in favour of the landlady Respondent No. 1. 2. Brief facts of the case as set out in the writ petition are as follows; 3. The house in question was purchased by Respondent No. 1 Smt. Maya Dixit wife of Sri Prakash Dixit by a registered sale deed dated 30.3.2006. She initiated proceedings for declaration of vacancy by filing an application on 11.9.2006 for release of the disputed accommodation under the unauthorized occupation of the petitioner under Section 16 (1) (b) of the Act. Respondent No. 2 also moved an application on 11.9.2006 for allotment of the disputed premises. 4. In pursuance of the aforesaid applications filed under Section 16 of the Act, the Rent Control Inspector after issuing notices to the concerned parties, inspected the premises in question and submitted its report. The RCEO after considering the material evidence on record and hearing the parties declared the vacancy and released the disputed premises under the Act in favour of the landlord by orders dated 28.8.2009 and 25.2.2010 respectively. 5. Being aggrieved and dissatisfied with the said orders, the petitioner preferred a Rent Control Revision No. 25 of 2010. The lower Revision Court by judgment and order dated 30.9.2010 dismissed the revision upholding the orders passed by the RCEO dated 28.8.2009 and 25.2.2010. Hence, the present writ petition. 6. Heard Sri Rajesh Tiwari, learned counsel for the petitioner, Sri Ashish Jaiswal, Sri Randhir Jain, learned counsel for the respondents and perused the record. 7. The petitioner claims to be a tenant of two rooms, Kitchen, Laterine and Bathroom and Courtyard on the ground floor and two rooms on the first floor. The house in question was purchased by Respondent No. 1, Maya Dixit vide sale deed dated 30.3.2006. It is submitted by the learned counsel for the petitioner that the petitioner and his father were tenants on the ground floor of one room each i.e. total two rooms, Laterine and Bathroom etc. 8. The house in question was purchased by Respondent No. 1, Maya Dixit vide sale deed dated 30.3.2006. It is submitted by the learned counsel for the petitioner that the petitioner and his father were tenants on the ground floor of one room each i.e. total two rooms, Laterine and Bathroom etc. 8. The allegations against the petitioner is that he unauthorizedly occupied two rooms on the ground floor of the disputed premises after vacation by the erstwhile tenants Ram Gopal and Daya Shanker and also unauthorizedly occupied two rooms in the first floor without any allotment order. 9. Learned counsel for the respondents does not dispute the fact that the petitioner was a tenant of one room and his father Shiv Dayal of another room on the ground floor of the disputed premises in their own right and after the death of his father, tenancy of the room in the possession of his father devolved upon the petitioner and his brother Ramesh Chandra. However, his brother Ramesh Chandra alone occupied the said room left behind by his father and his name was also recorded in Nagar Mahapalika. Thus, the petitioner and his brother Ramesh Chand were in possession of one room each along with Latrine and Bathroom in the disputed premises as tenants. It has also been alleged by the learned counsel for the respondents that later on Ramesh Chandra after constructing his own house illegally passed on the possession to one Satyavati as a result of which vacancy proceedings under the Act with respect to the said rooms were initiated and a case No. 13 of 2010 is pending in the court below. 10. It is the contention of the petitioner that apart from two rooms on the ground floor, he was also the tenant of the two small rooms situate at the first floor of the disputed premises, which were constructed by him with the permission of the erstwhile landlord Ambika Charan Vajpaiyee. 11. The main dispute between the parties is as follows; (I) Whether the petitioner is occupying the two rooms illegally on the ground floor vacated by the erstwhile tenant Ram Gopal and Daya Shanker. (ii) Whether the occupation of the petitioner in two rooms alleged to have been constructed in the year 1982 by the petitioner on the first floor with the permission of the landlord was unauthorized and legal. 12. (ii) Whether the occupation of the petitioner in two rooms alleged to have been constructed in the year 1982 by the petitioner on the first floor with the permission of the landlord was unauthorized and legal. 12. The petitioner has not filed any allotment order in his favour with respect to the two rooms found to be in his possession which were earlier vacated by the outgoing tenants Ram Gopal and Daya Shanker. Petitioner has not filed any cogent and convincing evidence to show that his possession over the two rooms vacated by the outgoing tenant Rama Gopal and Daya Shanker was in accordance with law, as such, the court below rightly came to the conclusion after considering the material evidences available on record that the possession of the petitioner over the premises vacated by the erstwhile tenant was unauthorized. 13. A perusal of the record further shows that the petitioner has not filed any cogent evidence to show that in fact he was given any permission by the erstwhile landlord to construct two rooms on the first floor. Even if it is assumed that the aforementioned two rooms were constructed by the petitioner somewhere around in 1982 on the first floor with the permission of the erstwhile landlord, the possession of the petitioner still cannot be said to be in accordance with the provisions of the Act. 14. The learned counsel for the petitioner has contented that since the two rooms on the first floor were constructed around in 1982, UP Act No. 13 of 1972 would not be applicable. 15. In order to adjudicate this dispute, it would be appropriate at this stage to refer to the relevant portion of Sub-clause (b) and (c) of the Explanation I of Section 2 (2) of the Act:- "(b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition;" 16. In the present case, even if it is assumed that two new rooms were constructed on the first floor of the disputed premises somewhere in 1982 then also it will not come within the definition of new construction since construction of the two rooms/Kotharies were only a minor part thereof of the whole of the building. 17. Therefore, the two rooms alleged to have been constructed somewhere in 1982 on the first floor with the permission of the erstwhile landlord will comprise only a minor part thereof of the whole of the building. Therefore, in view of Sub-clause (b) and (c) of the Explanation I of Section 2 (2) of the Act, it will not be deemed to be a new construction and the Act will be fully applicable to it. It is also notable that the building in question was subjected to assessment by Nagar Mahapalika and the first assessment was made effective from the year 1973. 18. Thus, in view of the above discussion, the possession of the petitioner in the two rooms/Kotharies in the first floor and two rooms vacated by the outgoing tenant, Ram Gopal and Daya Shanker on the ground floor is illegal and unauthorized. Therefore, the petitioner is a tenant and authorized occupant of only one room, Latrine, Bathroom on the ground floor of the disputed premises. 19. The court below has given cogent, convincing and satisfactory reasons while passing the impugned order. I do not see any illegality or infirmity in the order passed by the courts below. The reasons mentioned in the impugned order are good enough to satisfy the order and no fault can be found with the approach adopted by the courts below. 20. In the result, the writ petition is dismissed. _