Uma Kiran vs Addl. Distt. Judge & Another

Shishir Kumar,J.

Heard Sri Rahul Verma, learned counsel for petitioner and Sri Rajesh Gupta, learned counsel appearing for respondents.

This writ petition has been filed against an order passed by respondent No.1 dated 9.10.2009 by which revision filed by respondent being landlord has been allowed and order of allotment made in favour of petitioner has been cancelled.

It appears that the property in question is a residential house situated at House No.212/1,South Civil Lines, Muzaffarnagar and respondent No.2 is the owner of half of the share of house in question. Respondent No.2 is living in district Rishikesh, District Dehradoon and doing job in the Irrigation Department and his brother Sri Surendra Kumar Singh doing job at Muradabad. It appears that after death of father of respondent, petitioner wanted to get the allotment of the said premises, made an application for allotment. A report was submitted by Rent Control Inspector on 4.6.2001 and in the said report it was said that building in question is vacant and earlier it was in possession of one Neeraj Rajwanshi, who was erstwhile tenant of the premises in dispute. This report was submitted by Rent Control Inspector and has obtained the signature of two witnesses. A notice was sent on 6.6.2001 by the Rent Control and Eviction Officer inviting objection by the landlord. On an application filed by petitioner, notice was sent and date was fixed on 6.7.2001. Objections were filed on beahlf of landlord stating therein that it was let out to tenant and it is not in a vacant position and one of the brother after retirement wanted to settle there but in spite of the aforesaid fact upon a finding recorded on the basis of report submitted by Rent Control Inspector, an order of declaring the vacancy was passed on 28.5.2003. A copy of the same has been filed as Annexure 9 to writ petition. Respondentlandlord aggrieved by aforesaid order filed a writ petition before this Court and the writ petition is still pending. In the meantime, on the same day, an order was passed allotting the said premises to petitioner. Respondent aggrieved by order of allotment filed a revision before the revisional court and the revisional court by the order impugned has allowed the revision holding therein that without following proper procedure, as required under the law, the order of vacancy and allotment has been passed. Petitioner aggrieved by the order passed by revisional court dated 9.10.2009 has filed the present writ petition.

Learned counsel for petitioner submits that as there was a report submitted by Rent Control Inspector to the effect that it was in possession of one Mr.Rajwanshi, who was tenant and same has been vacated by him, therefore, there is a vacancy and the brothers are not living here, in such circumstances, vacancy is there and as release application is not available on record, therefore, it may be published in the newspaper and after publication in the newspaper, premises has been allotted in favour of petitioner. Further, it has been submitted that now, petitioner has purchased the property from one of the brother and has become coowner, therefore, he is entitled to remain in possession of the property but by virtue of the order dated 9.10.2009, cancelling the order of allotment, the effect will be that petitioner will be ejected from the premises in dispute.

Learned counsel for petitioner has placed reliance upon jdugments of the Apex Court reported in S.C.2000, Page 690 Imambi Vs. Azeeza Bee, S.C.1997, Page 642 Abdul Alim Vs.Sheikh Jamaluddin Ansari, A.R.C.1984(1), Page 459, Vishwanath Vs. IV, A.D.J. Etawa & another. Placing reliance upon aforesaid judgment, learned counsel for petitioner submits that petitioner is entitled to remain in possession as he has become the owner of the property.

On the other hand, learned counsel for respondents submits that in spite of objection filed by respondentlandlord that it was never in tenancy and it was never allotted to any person as a tenant but only on the basis of report submitted by the Rent Control and Eviction Officer, a finding has been recorded that one Rajwanshi was the tenant of the said premises. The best piece of evidence was any order of allotment in favour of a person who was tenant in the premises in dispute. From the record, it clearly appears that the order of declaring the vacancy was passed on 28.5.2003 and on the same day, it was published on newspaper, newspaper was placed on the record as well as the order of allotment was also made on the same day. This clearly goes to show that no proper procedure has been followed. Further, a submission has been made by respondents that in view of Rules 8, 9 and 10 of U.P. Urban Building (Regulation of Letting of Rent and Eviction ) Rules 1972, which is a mandatory provision, that has to be complied with. If the same has not been complied with, order allotting the premises in favour of petitioner is bad in law. Further, it is clear from the record that no consent of respondentlandlord has ever taken, as required under the Rules, in case, the building in question is being considered for allotment first time by the Rent Control and Eviction Officer. Respondents submit that there is nothing on record to show that it was ever allotted in favour of anybody by the Rent Control and Eviction Officer. In such circumstances, respondents submit that order passed by court below is correct and based on evidence.

I have considered the submission on behalf of parties and have perused the record. An order declaring the vacancy was passed on 28.5.2003. It appears that on the same day, complete formality was done and the order of allotment was made in favour of petitioner. There is nothing on record to show that any consent from landlordrespondent was ever taken, as required under the Rules. The revisional court has considered this aspect of the matter and has recorded a finding that the vacancy was declared on 28.5.2003 on the same day, the same was published in the newspaper and it was taggged with record also and on the same day, the order of allotment was made in favour of respondents. This clearly goes to show the fact that within 24 hours, the order of allotment has been made that too without taking consent and information to the landlord. In such situation, revisional court has passed an order allowing the revision filed by respondents setting aside the order of allotment.

I am of opinion that the order passed by revisional court, in view of the aforesaid, fact appears to be correct, needs no interference by this Court under Article 226 of the Constitution of India.

The writ petition is devoid of merits and is hereby dismissed, however, without imposing any cost.

At the last, learned counsel for petitioner submits that some reasonable time may be granted to vacate the said premises. It is provided that in case petitioner moves an application supported by an affidavit in the shape of undertaking before the prescribed authority specifically mentioning therein that immediately after expiry of period of three months from today, he will vacate the premises and will handover peaceful possession to respondentlandlord without inducting any third person, then in that case prescribed authority after due satisfaction will grant three months time from today. The arrears of rent, if any, has to be paid by petitioner to the landlordrespondent within a period of one month from today which was fixed by the Rent Control and Eviction Officer and will also paid the rent for this period, which will be in occupation of petitioner.