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2013 DIGILAW 3033 (ALL)

ANJU DEVI v. JANAK DULARI

2013-12-13

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri K.K. Nirkhi, learned counsel for the petitioner and Sri S.S.Chauhan assisted by Sri J.B. Singh, learned counsel for the respondent No. 1. 2. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 21.9.2013 passed by the Additional District Judge, Court No. 3, Kanpur Nagar in Rent Revision No. 47 of 2010 as well as orders dated 15.6.2010 and 11.8.2010 passed in Rent Case No. 25 of 2009 by the Rent Control and Eviction Officer declaring the vacancy and allotting the disputed accommodation by allowing the application 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). vide order dated 15.6.2010 the vacancy was declared, vide order dated 11.8.2010 the accommodation in dispute was released in favour of the respondent No. 1 and vide order dated 21.9.2013 the revision filed by the petitioner challenging the aforesaid orders has been dismissed. 3. The facts giving rise to the present writ petition are that it appears that respondent No. 1 has filed an application under Section 16(1) (b) of the Act seeking release of the accommodation in dispute. There the present petitioner appeared and after hearing him the vacancy was declared vide order dated 15.6.2010. The petitioner did not challenge this order by way of filing a writ petition. However, later on vide order dated 11.8.2010 the accommodation in dispute was released in the favour of land lord and it is thereafter, the petitioner has challenged both the orders. So far as the order 15.6.2010 declaring the vacancy is concerned the revisional Court on the basis of the assessment (Panchshala) made by the Nagar Palika of the years 1973-78, 1978-87 and 1987-92 has observed that in the above assessment neither the name of the petitioner nor any member of his family has been mentioned and taking note of that it has been held that the petitioner has entered in the accommodation in dispute after 1992. It has also been observed that neither any objection nor any affidavit has been filed stating that since when the petitioner is a tenant. 4. It has also been observed that neither any objection nor any affidavit has been filed stating that since when the petitioner is a tenant. 4. Contrary to that the petitioner has filed a copy of the Rashan Card (Paper No. 46 Ga 2) of the year 2009, rent receipt (Paper No. 46 Ga 4) of the year 2001 and reply of notice (Paper No. 46 Ga 7) of the subsequent year. The revisional Court has held that the entry of the petitioner in the accommodation is much after the enforcement of Act No. 13 of 2072, therefore, in view of Section 11 of the Act the petitioner’s status would be of an authorized occupant as no person shall let any building in respect of any person without an order of allotment issued under Section 16 of the Act. The petitioner has not been able to show any allotment order under Section 16 of the Act. 5. This Court while hearing this case also required the petitioner to show the allotment order, if any. The learned counsel for the petitioner has very fairly submitted that there is no allotment order but his case is that the accommodation in dispute was purchased by the respondent No. 1 in the year 2006 and petitioner’s husband was as tenant of the erstwhile owner who himself has admitted her husband as a valid tenant. It may be observed that the erstwhile land lord may have let out the accommodation in dispute to the petitioner but validity of the tenancy can only be judged under Section 16 of the Act. The petitioner has not been able to show the allotment order as required under Section 16 of the Act, hence, for all purposes the petitioner’s status would be of an authorized occupant. Therefore, no infirmity can be attached to the impugned orders so far as it relates to the declaration of vacancy is concerned. 6. So far as petitioner’s challenge to the order of release is concerned this Court in Ajai Pal Singh v. District Judge, Meerut, 2008 (5) ADJ 538 (DB), has observed as under: “Unauthorized/prospective allottee has no right to interfere in the aforesaid proceedings of release, as has been held by successive judgments of the Hon’ble Supreme Court as well as by this Court repeatedly. It is only after the release application is rejected, that a prospective allottee comes into picture and therefore revision against an order of release under Section 18 at the behest of prospective allottee would not be maintainable.” 7. In view of the law laid down by aforementioned Division Bench of this Court an unauthorized occupant/prospective allottee has no right to challenge the order of release. 8. In view of the foregoing discussions, I do not find any merit in the present writ petition and the same is hereby dismissed. 9. In the last Sri Nirkhi, learned counsel for the petitioner contended that the petitioner is an old lady and in case she is thrown out at this stage she will suffer irreparable loss and injury, therefore six months time may be given to vacate the premises. 10. Considering the fact that the petitioner is an old lady, six months time is granted to the petitioner to vacate the premises and hand over possession to the land lord provided she files an undertaking before the Rent Control and Eviction Officer, Kanpur Nagar by 12th January, 2014 stating that she will vacate the premises on or before 31st May, 2014. In case such an undertaking is filed the petitioner’s eviction from the premises in dispute shall remain stayed till 31st May, 2014. In the event of non filing of the undertaking it is observed that the Rent Control and Eviction Officer shall be at liberty to proceed in accordance with law.