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2014 DIGILAW 3059 (ALL)

Hari Lal v. State of U. P.

2014-09-26

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. 1. Heard Sri Praveen Kumar Giri, learned Counsel for the petitioners and Sri Atul Dayal who has appeared for respondent No. 4. The dispute is about two portions of house No. 5/415 Old Kanpur Nagar. Respondent No. 4 is said to have purchased the said house from the previous owner vide sale-deed dated 29.6.2009. In respect of the above portions of the house proceedings for declaring it to be vacant for the purposes of release/allotment were initiated before the Rent Control and Eviction Officer. The vacancy was declared vide order dated 14.12.2011. Petitioners who claim themselves to be the occupants of the said house preferred a recall application under section 34(1)(g) of the Act and the same was rejected. Subsequently, the sold portions of the house in dispute were released in favour of landlord vide order dated 16.11.2012. The two orders of vacancy and release were assailed by the petitioners by filing revision under section 18 of the Act. The revision has been dismissed vide judgment and order dated 11.8.2014. 2. These orders have been impugned by petitioners by means of present writ petition. The submission of learned Counsel for the petitioners is that they are tenants in the house in dispute for the last 40 years and therefore it cannot be declared or deemed to be vacant under the Act. 3. Section 11 of the Act clearly prohibits letting out any building except in pursuance of the allotment order issued under section 16 of the Act. Simultaneously, section 13 of the Act puts a complete embargo upon any person to occupy any building without an order of allotment and if it so occupied, the said person shall be deemed to be unauthorized occupant of the said building. 4. A conjoint reading of sections 11 and 13 of the Act puts a complete prohibition on occupying any building without an order of allotment and in case it is so occupied, the occupant shall be deemed to be unauthorized occupant. In Anil Kumar Dixit v. Smt. Maya Tripathi and others 2006 (62) ALR 383 it has been held that as the Act prohibits letting out of a building and occupation of it without an order of allotment, the building shall be deemed to be vacant, if it is so occupied in violation thereof. 5. In Anil Kumar Dixit v. Smt. Maya Tripathi and others 2006 (62) ALR 383 it has been held that as the Act prohibits letting out of a building and occupation of it without an order of allotment, the building shall be deemed to be vacant, if it is so occupied in violation thereof. 5. In the instant case, a finding has been recorded that the petitioners are in occupation of the house in dispute without an order of allotment. In view of the above, petitioners are undoubtedly unauthorized occupants unless they are able to prove that they are occupying the same as tenants since before 5th July, 1976 in which case the tenancy may stand regularized under section 14 of the Act. 6. Petitioners have not adduced any evidence before the Rent Control and Eviction Officer to prove their occupancy as tenants prior to the above date. Therefore, the Rent Control and Eviction Officer was left with no option but to declare the premises to be vacant in law. Learned Counsel for the petitioners has filed a supplementary affidavit annexing certain documents to show that they are old tenants but none of the said documents prove that the petitioners have been in occupation of the house in dispute prior to 5th July, 1976. The documents filed alongwith supplementary affidavit were not even part of the record which were before the Rent Control and Eviction Officer. 7. In view of the above facts and circumstances, as the petitioners failed to prove their tenancy, if any, prior to 5.7.1976 and to entitlement of its regularization under section 14 of the Act coupled with the fact that they are occupying the house in dispute without an order of allotment, they are certainly unauthorized occupants and the Courts below have not erred in declaring the house to be vacant. 8. The writ petitions as such are devoid of merit. Learned Counsel for the petitioners submits that the petitioners are living for the last many years in the house in dispute and has no alternative place to shift immediately and as such they may be allowed six months time to vacate-the premises in dispute. 8. The writ petitions as such are devoid of merit. Learned Counsel for the petitioners submits that the petitioners are living for the last many years in the house in dispute and has no alternative place to shift immediately and as such they may be allowed six months time to vacate-the premises in dispute. Ordinarily, in proceedings relating to vacancy and allotment no time is allowed but looking to the facts and circumstances, in the interest of justice, petitioners are permitted to retain the possession of the house in dispute till 31st January 2015, provided they furnish undertaking on affidavits within one month from today before the Rent Control and Eviction Officer that they will vacate and handover the vacant and peaceful possession of the respective portions of the house in dispute to the landlord within the above time. The writ petitions are dismissed with the above condition.