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2012 DIGILAW 736 (ALL)

Raj Dulari Shrivastava v. Girja Shanker Dixit and others

2012-03-27

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.;- 1. This writ petition has been filed against the judgment and order dated 28.1.2012 passed by the Additional District Judge, Court No. 4, Kanpur Nagar in Rent Revision No. 71 of 2008 upholding the order dated 1.10.2008 and order dated 25.7.2008 passed by Rent Control & Eviction Officer, Kanpur, Nagar in Case No. 24 of 2007 (Annexure 9 & 10 ) whereby the vancancy has been declared and thereafter the disputed premises was released under Section 16 (1)(b) of the Act (hereinafter referred to as the "Act") in favour of Respondents No. 1, 2 and 3 (first set) (in short "Respondents"). 2. Brief facts of the case as set out in the writ petition are as follows; 3. Originally the husband of the petitioner late Devi Charan was the tenant of the first floor of a residential portion bearing Municipal No. 13/60, situate at Parmat Nagar, Kanpur comprising of two rooms, kitchen, laterine, bathroom and Angan on the basis of allotment order dated 18.1.1954 passed by the Rent Control & Eviction Officer, Kanpur Nagar (in short "RCEO"). The said property was purchased by the respondents through registered sale deed dated 4.7.2002 from Anandeshwar Dayal, erstwhile owner and landlord. 4. On 19.5.2007 Respondent No. 4 moved an application for allotment of the disputed premises before the RCEO. Husband of the petitioner Devi Charan died on 25.7.2007. The Rent Control Inspector, Kanpur Nagar made an inspection of the disputed premises and submitted its report dated 8.8.2007. As soon as it came to his knowledge, the petitioner filed his objection supported by an affidavit and contended that no vacancy in respect of the premises in dispute has occurred. 5. The respondents filed release application as well as affidavit dated 1.2.2008 clearly stating that Naresh Chandra Srivastava, son of the erstwhile tenant Devi Charan Srivastava had inherited the tenancy along with other legal heirs and has also acquired House No. 13/60, Parmat, Kanpur Nagar. The RCEO by judgment and orders dated 25.7.2008 1.10.2008 declared the disputed premises vacant and released the same in favour of the respondents respectively. 6. Being aggrieved and dissatisfied with the said orders, the petitioner filed a revision under Section 18 of Act which was registered as Rent Revision No. 71 of 2008, was dismissed. Hence the present writ petition. 7. 6. Being aggrieved and dissatisfied with the said orders, the petitioner filed a revision under Section 18 of Act which was registered as Rent Revision No. 71 of 2008, was dismissed. Hence the present writ petition. 7. Learned counsel for the petitioner has submitted that the findings recorded by the courts below is illegal, arbitrary and based on complete misreading of the case and misconception of legal position relevant to the matter and has not considered the material on record in right perspective. It was further submitted that the son of the petitioner has not acquired any residential accommodation, as such, the premises in dispute cannot be declared vacant under the Act. 8. Per contra, Sri Sanjai Kumar has supported the impugned order and submitted that Naresh Chandra Srivastava, son of the erstwhile tenant has acquired a residental house i.e. House No. 6, S.B.I. Colony, Ratanlal Nagar, Kanpur Nagar, as such, the courts below was fully justified in declaring the vacancy as well as releasing the same in favour of the Respondents. 9. Heard learned counsel for the parties and perused the record. 10. It is not disputed by the learned counsel for the parties that the husband of the petitioner Devi Lal was the tenant of the first floor of the residential portion of the disputed premises which was allotted in his favour in the year 1954. It is also not disputed that Devi Charan, husband of the petitioner died on 25.7.2007 leaving behind Naresh Chandra Srivastava, Atul Srivastava (sons ) and his wife Raj Dulari who inherited the tenancy. The quinquennial assessment list of the premises of the House No. 6, S.B.I. Colony, Ratanlal Nagar, Kanpur Nagar filed by the respondents clearly shows that name of Naresh Chandra Srivastava as the owner/occupier of the said premises. It was also categorically stated in the affidavit of the respondent No. 3, Karuna Shankar Dixit that Naresh Chandra Srivastava, legal heir of the erstwhile tenant has acquired the House No. 6, S.B.I. Colony, Ratanlal Nagar, Kanpur Nagar. It is also notable that the petitioner in his affidavit has not denied this fact meaning thereby he has accepted the aforesaid facts. The RCEO after perusal of the pleadings and evidence on record held that the son of the petitioner Naresh Chandra Srivastava has acquired House No. 6, S.B.I. Colony, Ratanlal Nagar, Kanpur Nagar, as such, declared the vacancy of the disputed premises. The RCEO after perusal of the pleadings and evidence on record held that the son of the petitioner Naresh Chandra Srivastava has acquired House No. 6, S.B.I. Colony, Ratanlal Nagar, Kanpur Nagar, as such, declared the vacancy of the disputed premises. 11. The court below after referring inter alia to the documentary evidence i.e. quinquennial assessment list of the house and other material available on record, declared vacancy under the Act. The learned counsel for the petitioner has not laid down any foundation to his argument that the House No. 6, S.B.I. Colony, Ratanlal Nagar, Kanpur Nagar was not acquired by Naresh Chandra Srivastava. 12. The courts below have given cogent, convincing and satisfactory reasons while passing the impugned orders. Reasons mentioned therein are good enough to satisfy the impugned order and no fault can be found with the approach adopted by the court below. This Court cannot substitute its opinion with the opinion of the court below unless it is found that that the conclusion drawn by the lower courts are erroneous. 13. No other point has been pressed by the learned counsel for the petitioner. further 14. I do not find any illegality or infirmity in the impugned orders passed by the court below. 15. In view of the above, I do not see any justification to interfere in the matter. The writ petition is, accordingly, dismissed.