JUDGMENT Anjani Kumar, J.
1. This writ petition, under Article 226 of the Constitution of India by the petitioner who claims himself to be tenant of the accommodation in question which is a shop, challenges the order passed by the Rent Control and Eviction Officer, Kanpur Nagar, dated 2nd February, 2005.
2. The brief facts are that the landlord-respondent No. 2, filed an application before the respondent No. 1, Rent Control and Eviction Officer, with the assertion that the petitioner is occupying the shop in dispute unauthorizedly without any allotment order and, therefore, there is a deemed vacancy under Section 12 of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act). The landlord further filed an application under Section 16(1)(b) of the Act that the aforesaid shop may be released in his favour as he requires the same for his personal use.
3. In short the case set up by the petitioner is that he is tenant since April, 1976 and he is regularly paying rent to the respondent-landlord who never issued any rent receipt. The landlord in order to pressurize the tenant to enhance the rent arbitrarily filed the aforesaid application. It is, wholly incorrect to say that the landlord requires the accommodation in question for his personal use nor the shop in question is legally vacant. A concocted story has been set up by the landlord in the application, in question. The petitioner further submitted that on application of the landlord the Rent Control Inspector has visited the shop in question in the absence of the petitioner and submitted some sort of inspection report without either inspecting the shop and also without any information to the petitioner. The said report is not based on facts.
4. However, after receipt of the report from the Inspector the respondent No. 1, Rent Control and Eviction Officer, issued notices to the petitioner as well as the respondent-landlord. Both the parties have exchanged their pleadings and have also adduced evidence. After considering the respective pleadings and evidence on the record the Rent Control and Eviction Officer came to the conclusion that the petitioner has failed to demonstrate that he is in occupation of the shop in question before 1976. In fact the petitioner has come in occupation only after 1978 and therefore the petitioner cannot claim regularization of his occupation even if it is presumed that the petitioner entered into possession with the consent of the landlord. Since the petitioner is in occupation of the accommodation in question without any allotment order issued under the provisions of the Act, his occupation is that of an unauthorized occupant. In these circumstances respondent No. 1 declared the vacancy in the accommodation in question and directed the file to come up for orders for release/ allotment on 18th February, 2005.
5. Learned counsel for the petitioner has submitted that there was abundance of evidence which demonstrate that the petitioner-tenant is in occupation of the shop in question since before 1976 and the findings arrived at by the Rent Control and Eviction Officer to the contrary is perverse finding. The documents that were filed have been considered by the Rent Control and Eviction Officer who has found that those documents appear to have been prepared for the purposes of the present case. As far as entry in assessment of the Local Body is concerned the Rent. Control and Eviction Officer has recorded a finding from the aforesaid entry in the assessment list. It is apparent that the petitioner is tenant only after 1978 and not in the year 1976 and his explanation as to why his name is not there in the assessment for the year 1973-1978 is not acceptable. It appears that in the assessment year 1978-1987 the name of the petitioner has been entered as tenant on his application which is clear from the resolution No. 18 dated 2nd May 1982 of the local body concern that this entry is fabricated. Since the petitioner's occupation is without any allotment order and the petitioner is not entitled for regularization under Section 14 of the Act, in view of law laid down by the Apex Court in Nutan Kumar and Ors. v. IInd Additional District Judge and Ors., 2003 (1) AWC 213 (SC) : 2003 (1) SCCD 71 : 2002 ALJ 2516, the petitioner's occupation is only that of a trespasser and, therefore, the shop in question is liable to be declared as legally vacant and, therefore, declared as vacant.
6. Learned counsel for the petitioner has relied upon the case in Jagdish v. District Judge, Kanpur Nagar and Ors., 2002 (1) AWC 766 : 2002 (46) ALR 677, and submitted that since the landlord is guilty of acting in breach of the Act is guilty of abuse of process of law. Paragraph 14 of the said judgment is reproduced below :
"14. A landlord, guilty of acting in breach of the Act, is guilty of abuse of process of law, he is major gainer in the clandestine deal as compared to the tenant and hence must be placed at par in the same category as the defaulting tenant (called-unauthorised occupant). A tenant branded as unauthorised occupant, cannot be allowed to be dispossessed at the instance of defaulting landlord generally by proxy or by getting prospective allottees as their proxy and the seek release treating the accommodation vacant under Section 21 of the Act-avoiding release after contest with the tenant under Section 21 of the Act. Landlord in fact estopped by conduct having acquiesced to let out the accommodation."
7. In view of the decision of Nutan Kumar's case, which is a decision of the Apex Court, and considering the fact that the facts of the present case are quite different from that of the facts of Jagdish's case (supra), I do not find any error in the order passed by the Rent Control and Eviction Officer declaring the vacancy.
8. No other point is argued.
9. In view of what has been stated above this writ petition has no force. It is accordingly dismissed.