Heard Sri P. K. Jain, learned Senior Advocate assisted by Sri Manish Jain learned counsel for the petitioner and Sri A.K. Singh, learned counsel for the respondents appearing on behalf of the landlord.
It is not in dispute between the parties that the petitioner before this Court who is in occupation of the premise in question has been in such possession since 1994. There is no allotment order in his favour. It is further not in dispute that the provision of U.P. Urban Building (Regulation of Letting and Eviction) Act 1972 are applicable to the premise in question.
Courts below have recorded a finding that since no allotment order exists in favour of the occupant the premises shall be deemed to be vacant in the eyes of law. Therefore, after declaring the vacancy courts are proceedings with the consideration of the release application of the landlord. Against the order declaring the vacancy, petitioner who is in occupation of the premise has approached this Court.
On behalf of the petitioner, it has been contended that in the case of Smt. Jamuna Devi Vs. District Judge, Kanpur Nagar & others 2009 (1) ARC 266, Hazi Naseem Ahmad Vs. Rent Control and Eviction Officer, 2009(2) ARC 117 and Rajeev Maurya Vs. Rent Control and Eviction Officer/ADM (City) 2008(3) ARC 359, (hereinafter referred to as 'judgments Ist Set') three Hon'ble Judges of this Court have taken view that even if a person is in possession of the premise covered by the Rent Control Act without any allotment order in his favour, release application filed after 18 years would be time barred. It has been explained that although there may not be any limitation prescribed for initiation of such proceedings under UP Act No. XIII of 1972 but under the power/right vested must be exercised within reasonable time and such reasonable period cannot extend to a period beyond 12 years.
In the aforesaid judgments Ist Set, it has been held that no release application can be maintained by the landlord after more than 12 years of the date of alleged unauthorized occupation by the person concerned of the premise covered by UP Act No. XIII of 1972.
Learned counsel for the respondents to the contrary submits that Single Judge in the case of Babloo Vs. Munna Lal Verma & another, 2007 (3) ARC 633, wherein it has been held that since no limitation is prescribed under the UP Act No. 13 of 1972 for initiation of proceedings for release of a deemed vacancy, an application can be presented at any point of time and no bar of limitation can be raised. Reference is also made to the judgment of one of the Hon'ble Single Judge who had taken a contrary view in the aforesaid judgments Ist Set i.e. Rajendra Singh Vs. The Rent Control and Eviction Officer, 2006(2) ARC 287 wherein application for release of the premise filed in the year 1991 on the allegations that the person was in unauthorized occupation since July 1976 i.e. after more than 15 years had been entertained and was allowed. (Authorities cited in this paragraph shall be termed as Judgments IInd Set hereinafter) This Court finds that there is a conflict in the law as laid down by the Single Judges in the judgments Ist Set vis-a-vis that has been laid down in the judgments II set. It would be appropriated that the issue may be resolved by a larger bench of this Court and therefore following questions of law need to be determined by a larger bench of this Court:-
a) Whether release application by landlord can be said to be barred by limitation if the same is presented after more than 12 years from the date person is said to have entered into an unauthorized occupation of the premise covered by U.P. Act No. 13 of 1972;
b) Whether in absence of any limitation being provided under UP Act No. 13 of 1972 for initiation of release proceedings, quo deemed vacancy can any period of limitation, be read in the statutory provisions, on the principle that the power/right vested must be exercised within reasonable time.
Let the record of the present writ petition be placed before the Hon'ble the Chief Justice for constituting a larger bench.
Since issues involved may reflect upon large number of similar cases pending before the authorities below. It would be appropriate to request the Hon'ble the Chief Justice to constitute a larger bench as early as possible so that the issues may be resolved finally.
Till the reference is answered it would be appropriate to direct that the parties shall maintain status quo as on the date with regard to the possession over the property in question.
All the respondents may file counter affidavit by the next date.
Order Date :- 19.5.2011 RKS/