Heard learned counsel for the parties and perused the record.
House No. 10/220 Khalasi Line, P.S. Gwaltoli, Kanapur Nagar, having several rooms, verandah at it's ground floor, first floor and third floor, is an old construction to which U.P. Act No. 13 of 1972 applies. The petitioner claims himself to be a tenant in one room having an area of 8 x 10 feet situated at first floor which was taken on rent by his father-in-law Salig Ram prior to 1970 who was an employee of Victoria Mill Kanpur. After the marriage of his daughter Somwati with the petitioner, Salig Ram started residing in his village-Damraj, District-Jalaun.
The case of the petitioner is that after his marriage with the daughter of Sri Salig Ram, he began to live along with his father-in-law as he belongs to the village Gauhani, District-Auraiya since 1970-71 in the aforesaid one room. At present, petitioner is posted as clerk in the office of Animal Husbandry Department at Lakhimpur Khiri where he is residing with his wife. His children have got education in various schools in Kanpur Nagar. The ration card shows names of 4 daughters as family members residing in house no. 10/220 Khalasi Line, Kanpur Nagar along with the petitioner and his wife. The identity card as well as election I.D. card is also in the name of the petitioner which have been issued on 29.1.1999 and 1.5.1995 respectively . On the basis of these documents , it is stated that petitioner is a tenant of the accommodation in dispute as such the application filed by respondent no. 2 for eviction of petitioner being unauthorized occupant which is registered as Rent Case No. 32 of 2009 as well as inspection report dated 1.8.2009 made by Rent Control & Eviction Officer under section 8 (2) of the Act are liable to be rejected.
It is alleged by the petitioner that respondent no. 2 has refused to receive the rent of the accommodation in dispute since 2009 without any reason and the same is being deposited in the court under Section 30 of Act No. 13 of 1972.
It is submitted by the petitioner that Rent Control & Eviction Officer, Kanpur Nagar has in an arbitrary manner passed the order impugned dated 9.9.2010 declaring the vacancy treating the petitioner as an unauthorized occupant holding one Phool Singh to be the tenant of the respondent no. 2 who is said to have transferred his possession to Salig Ram in an unauthorized manner which is now with the petitioner.
Aggrieved by the aforesaid order dated 9.9.2010, petitioner filed Rent Revision No. 170 of 2010 which was also dismissed on the ground of maintainability in view of the decision reported in (1985) 2 SCC 207: Ganpat Rai v. A.D.M..
The contention of learned counsel for the petitioner is that the orders passed by the court below are wholly illegal and untenable; that he never made any statement before R.C.I. that he is residing in the house in dispute since 1980 and the report submitted by R.C.I. in this regard is false and cannot be relied upon as it shows that petitioner has taken possession of the accommodation in the last five years.
Per contra Sri B.N. Rai, appearing for the respondent has submitted that from the municipal record filed before the court below it is clear that Phool Singh was the tenant of one room on the first floor @ Rs.15/- per month which is now in unauthorized possession of the petitioner. He further submits that according to municipal record there were 13 tenants in the house in dispute and only two rooms are in occupation of the landlord.
Sri Rai further urged that the accommodation in dispute admittedly was in tenancy of Phool Singh vacated by him after his retirement in 1986. Sri Phool Singh thereafter went to his village transferring unauthorized possession to Salig Ram who is at present residing in his village and as such there is no illegality or infirmity in the order passed by the court below.
After hearing learned counsel for the parties, and on perusal of record, it appears that Phool Singh was recorded as tenant in the municipal record of one room accommodation in which petitioner claims to be a tenant since 1970-71. Admittedly, Salig Ram is residing in his village and the petitioner is working at Lakhimpur Khiri where he is living with his wife. It has also come on record that the petitioner's daughters are living in another house no. 10/218 Khalasi Line, Kanpur in which electric connection has also been taken in the name of the petitioner. The status of the petitioner as tenant may now be examined.
The petitioner has claimed that he was living in the house in dispute since 1971 along with his father-in-law after his marriage with Somwati. According to the affidavit filed in this writ petition the petitioner is aged about 55 years. Therefore, at the time of marriage in 1970 he would about 14 years of age and his wife would have been even younger. Even if it is assumed that petitioner was living in the house in dispute, after marriage with daughter of Salig Ram, he would not become a member of family of Salig Ram as defined under Section 3 (g) of the Act. Therefore, he cannot claim that tenancy devolved upon him through Salig Ram by virtue of marriage with his daughter Somwati, hence for this reason too petitioner could not be a tenant in accommodation in dispute.
The second argument of the learned counsel for the petitioner is that that he had paid rent to the landlord which has been accepted by him, hence he is a tenant.
This argument of the petitioner does not carry any confidence for the simple reason that he is working in Lakhimpur Khiri where he is posted and is living with his wife. Even his name is not recorded in the municipal record as a tenant whereas names of 13 other persons is recorded as tenant including the name of Phool Singh. If for the sake of argument, it is assumed that he was a tenant as rent is said to have been accepted by the landlord, he lost all his claim and defence to the tenancy under explanation (i) of 3rd proviso to Section 21 of U.P. Act No. 13 of 1972 which is as under:
"Where the tenant or any member of his family (who has been normally residing with him or is wholly dependent on him) has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained".
Therefore, when he acquired another house no. 10/218 Khalasi Line Kanpur, he cannot claim benefit of tenant even if rent might have been accepted by the landlord.
In result, the Court is of the view that the petitioner was never a tenant in the house in dispute. It was initially in the tenancy of Phool Singh who has left the house and might have put in Salig Ram father-in-law of the petitioner before vacating the same for reasons best known to him. The petitioner after marriage with Somwati daughter of Salig Ram has continued in unauthorized occupation after his father-in-law went to live in his village. After entering in service in the year 1980, the petitioner lived at various places where he was posted and his daughter continued to live at Kanpur in house no. 10/218.
The courts below have given concurrent findings of fact that the petitioner has not denied the evidence produced by the landlord that Phool Singh was the tenant earlier and that the petitioner himself acquired house no. 10/218 Khalasi Line, Kanpur where his daughters are living and he is living with his wife at Lakhimpur Khiri.
The courts below therefore have rightly come to the conclusion that the petitioner is an unauthorized occupant as he has failed to prove that he was a tenant of the house no. 10/220 Khalasi Lines, Gwaltoli, Kanpur Nagar prior to 1970 and if he was a tenant his tenancy ought to have been regularized on enforcement of Act No. 13 of 1972 which has also been not proved by the petitioner.
For all the reasons stated above, I am of the considered opinion that the courts below have not committed any illegality or infirmity in arriving at the conclusion that petitioner is unauthorized occupant.
The writ petition is, accordingly, dismissed.
Dated: 5.10.2010 RCT/-