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2014 DIGILAW 2246 (ALL)

Mohd. Shafeeque v. Imam Bux

2014-07-30

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal,J. Heard Sri Neeraj Agrawal learned counsel for the petitioner and Sri Virendra Kumar, learned counsel for the respondent No.1 now represented by his heirs and legal representatives. Respondent No.2 is a prospective allottee, who is a formal party. 2. Petitioner is an occupant of the first floor portion of house No.11/346, Sooterganj, Kanpur Nagar. Respondent No.2 applied for its allotment and the landlord informed that it was let out to the petitioner but he has handed over its possession to his brother Rafeeq Ahmad, who is not a member of his family and as such there is vacancy. 3. The Rent Control and Eviction Officer after calling for a report from the Rent Control Inspector who reported that at the time of the inspection Rafeeq Ahmad was found to be in possession, declared the premise in dispute to be vacant. 4. Aggrieved by the order of vacancy dated 22.7.2007 passed by the Rent Control and Eviction Officer petitioner has filed this writ petition. 5. Sri Neeraj Agarwal has argued that the petitioner in order to prove that he is still occupying the premise in dispute as a tenant and that he has not handed over exclusive possession of the same to his brother Rafeeq Ahmad, had filed his own affidavit as well as the affidavit of his wife but the said affidavits were not considered by the Rent Control and Eviction Officer in passing the impugned order. 6. Sri Virendra Kumar on the other hand submits that the petitioner was living abroad in connection with his service and that as he has handed over possession of the premises in dispute to his brother the Rent Control and Eviction Officer has rightly declared it to be vacant in law. 7. There is no dispute that the brother of the petitioner would not fall within the meaning of the definition of family as contained in Section 3(g) of U.P. Act No.13 of 1972 and therefore, if the petitioner has removed his effects from the premises in dispute and has allowed his brother to occupy the same, it could be deemed to be vacant in law but the petitioner's case all through had been that he had temporary gone out in connection with service. He continued to be the tenant and as the brother was living with him from inception, his tenancy never come to an end. He continued to be the tenant and as the brother was living with him from inception, his tenancy never come to an end. He has not allowed it to be occupied by his brother exclusively. The petitioner in this connection has not only filed his own affidavit and the affidavit of his wife but that of his brother wherein it has been stated that the petitioner has not severed his connection as a tenant from the premises in dispute and that he continues to occupy it as tenant. The said affidavits have only been referred to by the Rent Control and Eviction Officer but their effect vis-a-vis the other evidence on record has not been considered in holding the premises in dispute to be vacated. In view of non-consideration of the aforesaid affidavits, the impugned order stands vitiated in law. 8. In AIR 2002 SC 676 Ganesh Trivedi Vs. Sundar Devi and others the Apex Court has held that though brother of a tenant is not included in the definition of family but where a tenant has not taken any residence elsewhere and has not allowed the premises in dispute to be occupied exclusively by his brother the provisions of Section 12 (1)(b) of the Act could not be attracted. 9. In the instant case also, there is no material on record which may demonstrate that the petitioner has taken up residence elsewhere and that the possession of the premises in dispute was given exclusively to the brother so as to infer that he has severed his connection with the tenancy. 10. In view of the aforesaid facts and circumstnaces, the impugned order dated 27.7.07 passed by the Rent Control and Eviction Officer in Case No.10 of 2005 under Section 12 of the Act is hereby quashed and the matter is remanded for decision afresh in accordance with law keeping in view the above legal position and on consideration of the effect of the affidavits filed on behalf of the petitioner. 11. The writ petition is allowed as above.