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2015 DIGILAW 2469 (ALL)

Govind Ram v. Jugul Kishor Paliwal

2015-08-18

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard learned counsel for the parties. 2. Challenging the order of declaration of vacancy dated 24.7.2015 , the contention of the learned counsel for the petitioner is that no notice was given to the petitioner before carrying out on the spot inspection of the property in dispute. The submission is that the petitioner is living in the disputed accommodation for the reason that house No. 762 Mohalla Rampuri, district Muzaffar Nagar which was purchased by him by registered sale deed dated 16.11.2011 is in occupation of some other person. 3. Learned counsel for the petitioner further relied upon Rule 8 of U.P. Urban Buildings (Regulations of Letting Rent & Eviction) Rules, 1972(hereinafter referred to as the Rules 1972) to submit that after ascertaining the vacancy before passing order of allotment or release in respect of the disputed building, an inspection is to be carried out by the Rent Control and Eviction Officer under Sub-Rule 2 of Rule 8 of the Rules 1972 which provides the manner in which the inspection report is to be prepared. Further Sub-Rule 3 of Rule 8 of Rules 1972 provides that objection, if any, could be made on the inspection report. Rule 8 of Rules 1972 has been framed with a view to streamline the procedure of inspection in respect of building which is alleged to have been vacated under section 12 of the Act. The submission is that the Tehasildar's report was taken into consideration by the Rent Control and Eviction Officer for declaration of vacancy and hence procedure provided under Rule 8 of Rules 1972 as required to be followed by him was not followed and hence the order of declaration of vacancy is vitiated and deserves to be quashed. 4. Having heard learned counsel for the parties and perused the record, it is apparent from the record that vacancy has been declared on the admitted fact that the tenant had purchased a house no. 762 Mohalla Rampuri, Muzaffar Nagar which is within the municiple limit of the District Muzaffarnagar. The said house was purchased by a registered sale deed dated 16.11.2011 which clearly shows that the vendors had removed their effect and handed over possession to the petitioner over the house in question. 762 Mohalla Rampuri, Muzaffar Nagar which is within the municiple limit of the District Muzaffarnagar. The said house was purchased by a registered sale deed dated 16.11.2011 which clearly shows that the vendors had removed their effect and handed over possession to the petitioner over the house in question. Sub-section (3) of Section 12 of the Act provides that in case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situated he shall be deemed to have ceased to occupy the building under his tenancy. In view of the admitted fact of purchase of residential house by the tenant, deeming provision of Section 12 of the Act would come into play. In view of this deeming provision the tenant can not be allowed to occupy the building soon after he had purchased the house. The order of declaration of vacancy invoking deeming provision of Sub-section (3) of section 12 of the Act is perfectly justified. 5. Now question as raised by the tenant as a last resort is that the abovementioned house purchased by him is not available in the vacant state and therefore he is forced to live in the house in question. He would vacate the house as soon as the house purchased by him becomes vacant.This assertion has been made in the written statement filed on 28.1.2015 . 6. In paragraph-5 of the written statement, it is stated by the petitioner -tenant that he has neither removed his effect nor shifted in the house no.762 Mohalla Rampuri, district Muzaffar Nagar though he had purchased the house on 16.11.2011 by way of registered sale deed. In paragraph-6 it is stated that the house purchased by him is disputed and he could not get possession till date.In paragraph-10 it is stated that some persons have occupied the house and are not handing over possession to the petitioner. These three paragraphs which are relevant to decide the controversy are vague averments. There is no categorical assertion of the tenant naming the person who has occupied the house purchased by him by registered sale deed dated 16.11.2011. These three paragraphs which are relevant to decide the controversy are vague averments. There is no categorical assertion of the tenant naming the person who has occupied the house purchased by him by registered sale deed dated 16.11.2011. It is clearly indicated that the vendors had handed over vacant possession of the house no 762, Mohalla Rampuri, district Muzaffar Nagar to the petitioner tenant. If the petitioner wants to dispute his vacant possession, he was required to make categorical submission and file cogent evidence to establish this fact. As this has not been done, the vague assertion in the written statement can not be accepted. 7. The submission of the learned counsel for the petitioner is that house purchased by him is not available in the vacant state and the petitioner is still living in the disputed accommodation. As the petitioner is occupying the house as an unauthorised occupant, he is liable to pay the damages to the landlord. It is further reflected from the record that the petitioner has paid only Rs. 8.75 towards rent. The house was purchased by the petitioner-tenant on 16.11.2011 and his occupation is of unauthorised occupation soon after the purchase of the house. Even after declaring the vacancy on 24.7.2015, petitioner tenant has not vacated the house in question. 8. In view thereof it is directed that the petitioner shall handover vacant possession of the house in question within one month from today.The petitioner is further liable to pay Rs. 10,000/- towards damage for unauthorised use and occupation of the house in question from 2011 till the date of handing over the vacant possesion to the landlord. 9. With these observations, the writ petition is dismissed.