Heard learned counsel for the parties and perused the record.
This writ petition has been filed by the petitioner challenging the validity and correctness of the release order dated 17.7.2006. By this order the Additional City Magistrate/Rent Control and Eviction Officer, Kanpur Nagar has declared the vacancy of the premises in dispute. He also challenges the order dated 10.8.2006 by which the Court below has allotted the premises in suit to respondent no.5, Abdul Shafiq son of Sri Abdul Aziz resident of house no. 100/33 Colonelganj, Kanpur Nagar as well as the order dated 17.2.2009 by which the Additional District Judge (IX),Kanpur Nagar has rejected Rent Revision No. 53 of 2006 of the petitioner filed against the aforesaid order.
The petitioner claims himself to be the tenant of one room set on ground floor and one room on first floor and open area of premises in dispute i.e. house no. 100/186 Colonelganj, Kanpur Nagar since 13th March, 1986. According to him, the rent of the premises in suit was initially @ Rs. 8/- per month which was later on enhanced to Rs. 18.75 paise per month and at present he is paying rent @ Rs.375/- per month.
It further appears that one Riyaz Ahmad was tenant of the premises in dispute who left the tenancy of the premises in the month of May, 1970 and since then the petitioner has come in the tenancy of the portion of Riyaz Ahmad. It is alleged to have been given to him on rent by landlady Smt. Jaibunisha on 20.5.1970 wife of Sri Yunish resident of house no. 80/46 Cooli Baza, who was the owner of the premises in dispute .
It is not in dispute that the premises in dispute is an old construction to which the provisions of U.P. Act No.13 of 1972 apply; that Smt. Jabunisha later on sold the house to respondent no.5, Abdul Shafiq son of Sri Abdul Aziz resident of house no. 100/33 Colonelganj, Kanpur Nagar by registered sale-deed on 9.7.2003.
The order has been challenged by the learned counsel for the petitioner on the ground that an inspection was made by the Rent Control Inspector behind his back on 31.11.2004 and report dated 18.1.2005 was submitted by him to the Additional City Magistrate/Rent Control and Eviction Officer, Kanpur Nagar and was registered as Case No. 9 of 2005, Mohd. Ismile versus Mohd. Idarish.
It is claimed by the petitioner that on coming to know about the exparte report submitted by the Rent Control Inspector,he filed an objection dated 27.4.2005 before the Court challenging the inspection on the ground that he had received the notice dated 18.12.2004 from the Rent Control Inspector but he was not informed about the exact date and time on which he would come for inspection; that the statement given by Sri Mukhtar Ahmad son of Sri Nisar Ahmad resident of house no. 100/186 Colonelganj, Kanpur Nagar to the Rent Control Inspector is incorrect and that in fact the petitioner is a tenant of house in question on rent @ Rs.375/- per month. He also stated in paragraphs 7,8 and 9 of the objection that earlier Riaz Ahmad was in occupation of the accommodation in dispute since March, 1968 @ Rs.8/- per month and that the petitioner had taken possession from him on 20.5.1970 and since then he is a legal tenant and there is no vacancy in the house as such in the facts and circumstances of the case, the inspection report of the Rent Control Inspector is liable to be rejected.
The petitioner again claims to have submitted a detailed objection dated 20.5.2005 against the inspection report submitted by the Rent Control Inspector which has been rejected by respondent no.2 vide order dated 17.7.2006 declaring the vacancy in respect of the premises in dispute without considering the objection of the petitioner.
The aforesaid order dated 17.7.2006 declaring the vacancy was challenged by the petitioner by means of Civil Misc. Writ Petition No. 40607 of 2006, Mohd. Indarish versus Rent Control and Eviction Officer, Kanpur and others, which was dismissed by the High Court vide order and judgment dated 1.8.2006 holding the petition to be premature. After declaration of vacancy by respondent no.2 on 17.7.2006, respondent no.5 moved an application under Section 16(1)(b) of U.P. Act No. 13 of 1972 on 26.7.2006 for release of the premises in dispute in his favour. This order was challenged on the ground that respondent no.2 did not call any objection from the petitioner on the aforesaid application and had by order dated 10.8.2006 released the premises in dispute in favour of respondent no.5, who was subsequent purchaser of the property in dispute.
Subsequently, Rent Revision No. 53 of 2006, Mohd. Idarish versus IIIrd ACM/Rent Control and Eviction Officer,Kanpur Nagar and others was preferred by the petitioner before the District Judge, Kanpur Nagar. Thereafter, it was transferred to the Court of respondent no.1, who vide his order and judgment dated 17.2.2009 dismissed the revision. The petitioner has prayed for quashing of the aforesaid order.
Learned counsel for the petitioner has pointed out that during the pendency of the proceedings, respondent no.5 filed an application dated 7.7.2006 under Section 21(1)(a) of U.P. Act No. 13 of 1972 before the Prescribed Authority/ First Additional Civil Judge (Senior Division), Kanpur Nagar for release of the premises in suit which was registered as Case No. 41 of 2006, Abdul Safiq versus Mohd. Idarsih in which Idarish (the petitioner in this petition) was treated as a tenant, hence the Court below has erred in law in not considering these facts and has given a contrary finding though this plea was taken by the petitioner in his grounds of revision before the Revisional Court.
It is also pointed out that the case under Section 21(1)(a) of U.P. Act No. 13 of 1972 filed by respondent no.5 was dismissed by the court below on 29.11.2007 for want of prosecution as such it is contended that the court below has erred in law in holding the petitioner to be an unauthorized occupant in the premises in suit without any allotment, though none of the courts below gave any finding when Riyaz Ahmad left the premises in suit whereas the petitioner has given specific date of his occupation of the premises in suit.
The orders of the Court below have been assailed on the ground that both the courts below have erred in holding that notice under Rule 8(2) of the Act served upon the petitioner and further that petitioner has filed objection to establish that his tenancy was prior to 1976 as well as the findings of both the courts below are contrary to to the record; that the petitioner has specifically stated that no notice prior to inspection was given to the petitioner with respect to the alleged inspection dated 31.11.2004 and neither his son nor his family members were present at the time of inspection. In this regards the petitioner has filed the affidavit of Nasir Ahmad and Abdul Wahid both resident of local to the effect that petitioner is residing in the premises in dispute since 1970, but the courts below have illegally declared the vacancy of the premises in dispute. It is stated that the Revisional Court has wrongly held that the petitioner has came in occupation in 1994 without any basis and finding and the finding of the Revisional Court is contrary to the report of the Rent Control Inspector.
It is lastly submitted that it is relevant to point out here that after more than 30 years, respondent no.4 with collusion of respondent no.5 filed the aforesaid application for release.
Per contra, learned counsel for the respondents has argued that Riyaz Ahmad was the earlier tenant in the premises in dispute and the petitioner was not given the tenancy of the premises in dispute by the landlady. He submits that this is evident from the rent receipts filed by the petitioner from the year 1972. He also submits that no amount of rent has been deposited by the petitioner under Section 30(1) of U.P. Act No. 13 of 1972 and as such the petitioner cannot be given the benefit of the Act.
After hearing learned counsel for the parties and on perusal of the record it is apparent that the petitioner claims himself to have come in the tenancy in the year 1968 whereas the contention of the respondent is that the petitioner has come in the tenancy in 1991. It appears that the petitioner was living in house no. 100/280 and subsequently in house no. 100/239, Colonelganj, Kanpur Nagar prior to occupying the premises in dispute. The petitioner has utterly failed to show that he was a tenant of this house since 1972. If that be so, he could not have been a tenant of the house in dispute as well as a tenant in house nos. 100/280 and 100/239 Colonelganj, Kanpur Nagar where he remained up to 1991. It also appears from the rent receipts dated 12th March, 1972, 11th April, 1973, 13th June, 1974 and 10th March, 1975 that these receipts could not have been relied upon in favour of presumption of tenancy of the petitioner in the house in dispute as admittedly, at that time Riyaz Ahmad was a tenant and he had vacated the house only in 1986.The petitioner was an unauthorized occupant and had been put in possession by Riyaz Ahmad with whom he was not related as family members. This becomes relevant in context of own admission by the petitioner that the premises in dispute was vacated by Riyaz Ahmad in 1986.
In view of the aforesaid facts and the circumstances it is apparent that the petitioner has been put in possession by Riyaz Ahmad who might have given him his rent receipts. Hence, these do not prove that the petitioner was a tenant of the house in dispute vacated by Riyaz Ahmad. On the contrary there is documentary evidence that the petitioner was not living in the premises in dispute up till 1991. His claims that he had shifted in a portion of the house in dispute in 1986 after Riyaz Ahmad had vacated the house appears to be incorrect. It rather appears that Riyaz Ahmad might have given him notional possession by handing over keys of the accommodation to him in 1986 and the petitioner actually shifted therein in 1991. He is unauthorized occupation of the premises in dispute as has rightly been held by the courts below by concurrent findings of facts.
For all the reasons stated above, the writ petition is dismissed. No order as to costs.
Dated 4.10.2010 CPP/-