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2014 DIGILAW 830 (ALL)

Anil Kumar Gupta v. Raj Kumar Gupta

2014-03-10

SUDHIR AGARWAL

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JUDGMENT Sudhir Agarwal,J. 1. Heard Sri Swapnil Kumar, learned counsel for the petitioner and Sri Ramendra Asthana, learned counsel for the respondents. 2. The writ petition is directed against order dated 27.7.1998 whereby Rent Control and Eviction Officer, Shikohabad (hereinafter referred to as "RCEO") rejected petitioner's application for release of accommodation in question and thereagainst, petitioner's revision has been dismissed by Additional District Judge, Court No.5, Firozabad vide order dated 13.10.2003. 3. It is not disputed that accommodation in question i.e. House No.555 (new number 569) situated at Mohalla Bara Bazar, District Firozabad was initially in the tenancy of one Smt. Sheetal Devi. The husband of Smt. Sheetal Devi died in 1974 and thereafter Sheetal Devi vacated the premises in question (as per petitioner's case) on 25.5.1995. Informing the vacancy to the RCEO, petitioner applied for release of accommodation in question under Section 16 of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972"). The application was contested by respondent by filing objection, a copy of which has been filed as Annexure 3 to the writ petition, and therein the case set up by respondent is that though admittedly accommodation in question was in the tenancy of Smt Sheetal Devi, who vacated it after the death of her husband but six rooms of accommodation in question were let out to respondent by petitioner's brother Sri Kishan Gupta sometimes in 1973 on monthly rent of Rs.40/- and therefore, accommodation in question is not vacant and beneficiary i.e. respondent is residing in accommodation in question. 4. This statement of respondent is self contradictory, inasmuch as, Smt. Sheetal Devi on the one hand said that her husband died in 1974 and thereafter she vacated the premises but it is also admitted that respondent was never let out the premises in question on the basis of any letter of allotment and so far as claim that he was let out the building in question in 1973 by brother of petitioner, he adduced no evidence in this regard. In order to claim benefit of Section 14 of Act, 1972, onus lie upon respondent to show that he was in possession of accommodation in question before the prescribed date. Moreover, Smt. Sheetal Devi herself appeared in witness box and stated that she was in possession of accommodation in question till 1995 and vacated the same in 1995. In order to claim benefit of Section 14 of Act, 1972, onus lie upon respondent to show that he was in possession of accommodation in question before the prescribed date. Moreover, Smt. Sheetal Devi herself appeared in witness box and stated that she was in possession of accommodation in question till 1995 and vacated the same in 1995. Both the Court's below have not looked into this aspect of the matter and also the fact that respondent failed to prove that he was occupying accommodation in question before cut off date in 1976. That being so, his occupancy was patently illegal and unauthorized. There was a deemed vacancy in the accommodation in question hence application for release of landlord ought to have been heard without permitting any objection of respondent since respondent has no locus standi to raise objection to the release application of the petitioner under Section 16(1)(b) of Act, 1972 in view of Division Bench judgment in Writ Petition No. 37767 of 2003, Ajay Pal Singh Vs. District Judge, Meerut and others, dated 05.02.2008 which has been followed by another Single Judge of this Court in Harish Chandra Vishwakarma Vs. State of U.P. & Anr. 2009 (3) ARC 486 . 5. In the circumstances, the impugned orders, in my view, cannot sustain. The writ petition is allowed. The impugned orders dated 27.7.1998 and 13.10.2003 (Annexure 5 and 6 to the writ ptition) are hereby set aside. The matter is remanded to RCEO to pass a fresh order in accordance with law, considering the observations, as above, expeditiously, but in any case, within three months from the date of production of a certified copy of this order.