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2013 DIGILAW 69 (ALL)

Ramji Maurya v. Bhagwan Das Khaneja

2013-01-07

SUDHIR AGARWAL

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JUDGMENT Sudhir Agarwal,J. 1. Heard Sri Pramod Kumar Jain, Senior Advocate, assisted by Sri Komal Mehrotra, learned counsel for the petitioner and Sri Ashish Kumar Singh, Advocate, for the respondents. 2. The writ petition is directed against order dated 29.12.2004 passed by Rent Control & Eviction Officer/Additional District Magistrary (Civil Supply), Varanasi (hereinafter referred to as "RCEO") declaring vacancy in the shop in dispute under Section 12(2) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972"). 3. Learned counsel for the petitioner submitted that the case set up by landlord was that two-third of shop in dispute was allowed to be occupied by the petitioner to his son-in-law Rajendra Maurya and remaining part i.e. one-third of the shop was allowed to be occupied by his uncle Suraj Nath Maurya, and therefore, shop in dispute had become deemed vacant under Section 12(1)(b) of Act, 1972 but RCEO found no evidence that there was any such sub-letting to Sri Rajendra Maurya in respect to the alleged two-third of shop in disputed yet he has illegally held entire shop being deemed vacant on account of the fact that it has been occupied by persons other than family member of the petitioner. He further submitted that in respect to one third part of the shop allowed to have been occupied by petitioner's uncle, there was no evidence, inasmuch as, he was tenant on the first floor of the accommodation in dispute and the evidence referred to in the impugned order in para 8 in respect to M/s Royal Tailors on which his name was mentioned that relates to the premises which was on the first floor of the house in dispute. 4. From the pleadings of the writ petition, I find that in para 10(d) (iii) the petitioner himself has stated that Sri Suraj Nath Maurya was tenant on the first floor of the premises in dispute and vacated the same in the year 1989 and started educational institution at Bhagwanpur and looking after the said institution. In the impugned order, RCEO in para 8 has said that Prapat "Kha" issued by Inspector U.P. Shops and Commercial Establishment, Varanasi documents was filed before him which mentions the name of the shop as Royal Tailors and its owner as Suraj Nath and Poona Lal Yadav and the said shop was renewed from 1977-78 to 1999-2000. In the impugned order, RCEO in para 8 has said that Prapat "Kha" issued by Inspector U.P. Shops and Commercial Establishment, Varanasi documents was filed before him which mentions the name of the shop as Royal Tailors and its owner as Suraj Nath and Poona Lal Yadav and the said shop was renewed from 1977-78 to 1999-2000. Meaning thereby, it could not have been in respect to the alleged first floor accommodation occupied by Sri Suraj Nath Maurya, which according to the petitioner's own case, vacated the same in 1989. 5. That being so, it cannot be said that Suraj Nath Maurya was not occupying disputed shop and running tailoring business in the name and style of "M/s Royal Tailors". He admittedly is not within the definition of "family" under the Act, 1972, it cannot be disputed that shop in dispute to the extent it was allowed to be occupied by Suraj Nath Maurya became deemed vacant under Section 12(1)(b) of Act, 1972. 6. So far as Rajendra Maurya is concerned, this Court after repeated reading of the impugned order found no evidence or discussion to find out that Rajendra Maurya was also allowed to be occupied the shop in dispute and Sri Ashish Kumar Singh, learned counsel for the respondents also could not find out any such finding yet the conclusion has been drawn, as recorded by RCEO, that shop in dispute was also allowed to be occupied by Rajendra Maurya and therefore, there is deemed vacancy. This finding is clearly perverse and based on no evidence. 7. The writ petition, in view of the above, is partly allowed and the impugned order dated 29.12.2004 passed by RCEO to the extent it has declared the shop in question vacant said to be occupied by Rajendra Maurya is hereby quashed.