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Shamshad Ahmad vs District Judge, Dehradun And ...

High Court Of Judicature at Allahabad|27 October, 1999

JUDGMENT / ORDER

JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order dated 14.10.1980 passed by the Rent Control and Eviction Officer allotting the accommodation to respondent No. 3 and the order of respondent No. 1 dismissing the revision against the said order on 19.12.1980.
2. Briefly the facts are that one Harbans Lal was tenant of Premises No. 64, Munnuganj, Dehradun, of which the petitioner is landlord. He constructed his own house at Keshav Nagar, Dehradun and intimated to the landlord on 16.6.1980 that he would vacate the house in the last week of the month and will hand over its possession. On the basis of this information, the petitioner intimated to the District Magistrate under Section 15 (1) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972 (in short the Act) that Harbans Lal, the tenant, is to vacate the accommodation. In the prescribed form in column 'the actual or expected date of vacancy', he mentioned the date of vacancy as 24.6.1980. The Rent Control and Eviction Officer, on receiving this intimation, asked the Rent Control Inspector to submit a report. The Inspector made a local inspection. The tenant informed him that he has constructed his house at Keshav Nagar and is likely to vacate within two or three days. The Inspector submitted a report on 10th July, 1980 to the Rent Control and Eviction Officer. The Rent Control and Eviction Officer declared the accommodation in question as vacant.
3. The petitioner on 16th July, 1980 nominated Sri Datar Singh, respondent No. 4, for the purpose of allotment under Section 17 (1) of the Act. Sri Datar Singh applied for allotment of the premises, Respondent No. 3 also made an application for allotment of the premises. The Rent Control and Eviction Officer vide order dated 14.10.1980 held that Section 17 (1) of the Act was not applicable inasmuch as the vacancy was not notified under Section 17 (1) but under Section 12 (3) of the Act and, therefore, the premises in question could not be allotted to the nominee of the petitioner. He allotted the accommodation in question in favour of respondent No. 3. Against this order, the petitioner and Datar Singh filed separate revisions. Respondent No. 1 has dismissed the revision on 19.12.1980.
4. I have heard Sri Rajesh Tandon, learned counsel for the petitioner and Sri H.S. Nigam, learned counsel for respondent No. 3.
5. The core question is whether on the facts and circumstances of the case, the Rent Control and Eviction Officer was justified in ignoring the nomination made by the landlord on the ground that if the vacancy is notified in a case of deemed vacancy which is covered by Section 12 (3) of the Act, the nomination shall be treated as invalid under Section 17 (1) of the Act. In this context, the provision of Section 17 (1) has to be considered in relation to the vacancy under Section 15 as well under Section 12 of the Act.
The vacancy may arise in three ways :
6. Under Section 12 (1), the landlord or tenant of a building shall deemed to have ceased to occupy the building or a part thereof, if, (a) he has substantially removed his effects therefrom ; (b) he has allowed it to be occupied by any person who is not a member of his family ; (c) in a case of residential building he as well as the members of his family have taken up residence not being temporary residence elsewhere.
7. Sub-section (2) of Section 12 provides that in the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. Subsection (3) further provides that in the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy.
8. Section 15 (1) of the Act provides that every landlord, shall on a building falling vacant by his ceasing to occupy it or by the tenant vacating it or by release from requisition or in any other manner whatsoever gives notice of the vacancy in writing to the District Magistrate not later than seven days after the occurrence of such vacancy, and such notice may at the option of the landlord be given before the occurrence of the vacancy. The duty is also cast upon the tenant under sub-section (2) to give notice in writing to the District Magistrate and also to the landlord not less than fifteen days before the vacancy. Section 12 of the Act contemplates deemed vacancy where the tenant or landlord has not left possession. In one case, the cessation of the vacancy is a fact and in other case, it is a deemed cessation of vacancy. The effect in both the cases are the same, i.e., vacancy of the building by the landlord or tenant. Section 17 of the Act takes into account the vacancy and the expected vacancy both. Section 17 (1) reads as under :
"17 (1). Where the District Magistrate receives an intimation, under sub-section (1) of Section 15. of the vacancy or expected vacancy of building, any allotment order in respect of that building shall be made and communicated to the landlord within twenty-one days from the date of receipt of such intimation, and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choice, and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination :
Provided that where the landlord has made an application under clause (b) of sub-section (1) of Section 16, for the release of the whole or any part of the building or land appurtenant thereto in his favour, the said period of twenty-one days shall be computed from the date of decision on that application or where an application for review or an appeal is filed against such decision, from the date of decision on such application or appeal."
9. Section 17 (1) of the Act does not make any distinction between the physical vacancy and deemed vacancy. In both the cases, the District Magistrate is entitled to pass the order of allotment under subsection (1) of Section 16 of the Act which provides that the District Magistrate by order require the landlord to let any building which is or has fallen vacant or is about to fall vacant. He will have jurisdiction to pass allotment order in case there is a deemed vacancy under Section 12 of the Act. The landlord can intimate to the District Magistrate/Rent Control and Eviction Officer about the vacancy whether it is actual vacancy, deemed vacancy or expected vacancy. In Irshad Ahmad v. VII Additional District Judge, Aligarh and others, 1994 (2) ARC 37, it was held that the intimation can be given by the landlord in regard to deemed vacancy as contemplated under Section 12 of the Act.
10. Secondly, in the present case the tenant himself has intimated the date of expected vacancy to the landlord and the landlord in pursuance of the said intimation had given notice to the District Magistrate. The intimation given by the landlord is fully covered under Section 15 (1) of the Act.
11. In view of the above, the writ petition is allowed. The order passed by the Rent Control and Eviction Officer dated 14.10.1980 and the order passed by respondent No. 1, dated 19.12.1980 are hereby quashed. The Rent Control and Eviction Officer shall now decide the allotment applications afresh in accordance with law taking into account the nomination made by the landlord. Considering the facts and circumstances of the case the parties shall bear their own costs.
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Title

Shamshad Ahmad vs District Judge, Dehradun And ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
27 October, 1999
Judges
  • S Narain