1. Since the point involved in these two writ petitions are one and the same, they are taken up together for disposal by a common judgment and order.
2. These two writ petitions (WRIT - A No. - 69946 of 2010 & WRIT - A No. - 69993 of 2010, hereinafter referred to as the "Writ A" and "Writ B" respectively) are directed against the judgment and order dated 23.10.2010 passed by the District Judge, Kanpur in Rent Revision No. 23 of 2010 upholding the order dated 15.2.2010 passed by the Rent Control and Eviction Officer/VIIth Additional City Magistrate, Kanpur Nagar refusing to declare vacancy of the disputed premises.
3. Brief facts of the case as set out in these writ petitions are stated as follows;
4. The accommodation being quarter No. 37-B forming part of a very big property being Ahata No. 119/252 (New No. 119/511), Darshan Purwa, Kanpur Nagar which consists of more than 50 quarters is in dispute for which the petitioner Anand Ji Arya (in short petitioner B) sought allotment. The proceedings in these writ petitions are confined to the aforementioned accommodation being quarter no. 37-B (in short "disputed premises"). The disputed premises consists of one room 10' X 10' Verandah 10' X 10', Courtyard, Latrine, Bathroom and is constructed in 50 square yards.
5. The disputed premises was earlier jointly owned by Suresh Pratap Singh, Mahesh Pratap Singh, Ramesh Pratap Singh, Rajesh Pratap Singh and Viresh Pratap Singh. They transferred the disputed premises vide registered sale deed dated 19.10.2005 in favour of Smt. Reeta Singh and her husband Rajesh Singh (Petitioners of Writ Petition No. 69946 of 2010- in short "Petitioner A"). One Dhaniram was earlier the tenant of the disputed accommodation, after his death, his son Narain inherited the tenancy. Narayan vacated the premises in dispute and illegally handed over the possession to the respondent No. 1. Thereafter, the Respondent No. 1 illegally and unauthorizedly without any allotment order occupied the disputed premises (Quarter No. 37-B). This act of the respondent was hit by Section 13 of the Act and there was a deemed vacancy under Section 12 of the Act.
6. In pursuance of the allotment application filed by the petitioner B, Rent Control Inspector was directed to inspect and submit the report. The Rent Control Inspector submitted its report dated 18.1.2006, inter alia, stating that the disputed premises was found to be occupied by Respondent No. 1, Rajendra Sharma and his family members.
7. Notices were issued to the Respondent No. 1, Rajendra Sharma who appeared before the Rent Control and Eviction Officer (in short "RCEO") and stated that he is residing in the disputed house since last 40 years, earlier it was in the tenancy of his father Purshottam Sharma. It was further stated that when he was a minor his father used to pay rent at the rate of Rs. 5/- per month. However, when his father became old and migrated to his village, the landlords started harassing him to enhance the rent to Rs. 200/- per month. As a result, he started paying enhanced rent to the co-landlord Mahesh Pratap Singh, who received it on behalf of the other co-landlords.
8. In support of his contention Respondent No. 1, Rajesh Sharma has filed the following documents;
(i) Copy of the receipt dated 22.2.1989 showing the payment of water tax of Rs. 536.63 to Jal Sansthan.
(ii) A copy of the certificate issued by Nagar Mahapalika to the effect that Smt. Vidhya Devi gave birth to a child on 21.4.1986 in a hospital; the address of the certificate holder was shown in the certificate as House No. 119/252 (New No. 119/511), Darshan Purwa, Kanpur Nagar.
(iii) Ration Card issued in the name of Purshottam Sharma which was renewed in 1998.
(iv) Copy of the rent receipts showing that Rs. 200/- was paid as rent for six months to Mahesh Pratap Singh, erstwhile co-owner of the property.
(v) Electricity Bills of seven months issued in the name of Purshottam Shama, father of Rajendra Sharma.
(vi) Copy of the Voter Identity Card and,
(v) Photo copy of the quinquennial municipal assessment of 1968-1973 and 1973-1978 wherein the name of the erstwhile tenant Dhaniram was allegedly scored out and the name of father of the Respondent No. 1, Purshottam was substituted in place thereof.
9. Per contra, Petitioners filed the certified copies of the quinquennial municipal assessment for the years 1968-1973, 1973-1978 and 1978-1983 wherein neither the name of the Respondent No. 1, Rajendra Prasad nor his father figured at any place. The petitioner No. A also filed a copy of the sale deed dated 19.10.2005 indicating that the property in dispute was purchased by the petitioner No. 'A'.
10. The RCEO by order dated 15.2.2010 declined to declare the vacancy under Section 12 of the Act, consequently, the allotment application filed by the petitioner No. B also stood rejected.
11. Being aggrieved and dissatisfied with the judgment and order dated 15.2.2010, the petitioner No. 'B' filed a Revision which was registered as Revision No. 23 of 2010. During the pendency of the revision, Petitioner No. 'A' sought to file a certificate issued by the Nagar Swasth Adhikari stating therein that there was no entry in the records of Nagar Nigam pertaining to the birth of the son of the Respondent No. 1, however the same was not taken on record by the revisional court.
15. The learned counsel for the petitioners has submitted that neither the Respondent No. 1 possess the allotment order in his favour nor there was any evidence on the record to establish that the respondent or his father were occupying the disputed premises prior to 5th July 1976 in order to claim benefit of Section 14 of the Act. In support of his contention, he referred to Section 13 of the Act which reads as under :-
"13. Restrictions on occupation of building without allotment or release.- Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part."
16. The learned counsel for the petitioner on the strength of the above mentioned Section 13 of the Act has submitted that the Respondent No. 1 had illegally occupied the disputed premises without any allotment order under Section 16 of the Act after the erstwhile tenant Narain son of Dhaniram ceased to occupy the disputed premises, therefore the respondent will be deemed to be an unauthorised occupant within the meaning of Section 13 of the Act.
17. It was further submitted by the learned counsel for the petitioners that the Ahata No. 119/252 (New No. 119/511) is a huge Ahata wherein more than 50 quarters are built thereon and every quarter was allotted separate municipal number including the disputed quarter which was allotted municipal No. 37-B. It was further submitted that none of the documents filed by the Respondent No. 1 relate to the quarter No. 37-B. Therefore, the courts below have erred in treating the documents filed by the Respondent No. 1, Rajendra Sharma to be of the disputed premises quarter No. 37-B.
18. Learned counsel for the petitioner further submitted that the Respondent No.1, Rajendra Sharma has neither filed a certified copy of the quinquennial assessment of the Nagar Palika nor the original record of the Nagar Palika, Kanpur Nagar was summoned. Merely the photo stat copy of the quinquennial municipal assessment of the Nagar Palika was filed for the period 1968-1973 and 1973-1978, which shows that an interpolation was made by scoring out the name of the outgoing tenant Dhani Ram and inserting the name of his father Purshottam Sharma in place thereof.
19. On the other hand, petitioners No. A and B had filed a certified copy of the quinquennial assessment for the period 1968-1973, 1973-1978 and 1978-1983 wherein the name of the erstwhile tenant Dhaniram was recorded as tenant of the premises in question. Neither the name of Respondent No. 1, Rajendra Sharma nor his father Purshottam Sharma figured in the certified copies of the municipal assessment list.
20. It was further submitted by the learned counsel for the petitioners that the courts below have illegally placed reliance upon the forged and interpolated municipal assessment record ignoring the certified copy of the quinquennial assessment filed by the petitioners No. A and B. It was further submitted that the documents i.e. water tax receipts, birth certificate, ration card, electricity bill, voter id card and quinquennial assessment did not pertain to the House No. 37-B and they are all forged and fabricated documents. Moreover, all the aforementioned documents relate to the period subsequent to 5th July 1976 when the UP Amendment Act No. 28 of 1976 was brought into force. None of the conditions as prescribed in Section 14 of the Act was fulfilled by the Respondent No. 1. Therefore, even the benefit of Section 14 of the UP Act No. 13 of 1972 would not be available to the Respondent No. 1, Rajendra Sharma.
21. I find substance in the argument of the learned counsel for the petitioners that aforementioned aspect of the matter has not been considered in proper perspective by the courts below. The findings recorded by the courts below is based on complete misreading of the case and misconception of the legal position relevant to the matter.
22. Lower revisional court clearly fell in error in observing as follows in the impugned order;
"It is not the case of revisionist that Rajendra Sharma or his family members have built or acquired any house in Kanpur Nagar. It is not the case that Purshottam has allowed any person to occupy the premises who is not member of the family or that Rajendra Sharma and all the members of the family have taken residence elsewhere, therefore, it is apparent that Section 12 (1) is not attracted to the present case. Although there is no allotment order, yet it would not attract provisions of Section 12. At the most, it would attract Section 13. Section 16 would apply only when building is vacant or is about to fall vacant, so far as prayer for allotment is concerned. For evicting unauthorized occupant, landlord has remedies elsewhere, where question of legitimacy of the possession would be examined. In the allotment proceeding question of vacancy was examined and it was found by R. C. & E. O. on the basis of material on record that Rajendra Sharma has been residing, as such, building is not vacant u/s. 12."
23. Only when Sections 11, 12, 13, 14 and 31 are read together, we get comprehensive view of the matter in controversy between the parties. In this connection, the relevant provisions of the said Act need to be set out. Sections 11, 12, 13 and 31 read as follows:
"11. Prohibition of letting without allotment order. - Save as hereinafter provided, no person shall let any buildings except in pursuance of an allotment order issued under Section 16.
12. Deemed vacancy of building in certain cases.- (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if -
(a) he has substantially removed his effects therefrom, or
(b) he has allowed it to be occupied by any person who is not a member of his family, or
(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
(2) 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.
(3) 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;
Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.
xxx xxx xxx xxx xxx xxx (3-A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town area to which he has been so transferred, whichever is later.
(3-B) If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, municipality, notified area or town area in which the said building is situate, and such engagement ceases for any reason whatsoever, and he is landlord of any other building in any other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy the first mentioned building with effect from the date on which he obtains vacant possession of the last mentioned building whether as a result of proceedings under Section 21 or otherwise.
(4)Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2), or sub-section (3), sub-section (3- A) or sub-section (3-B), shall, for the purposes of this Chapter, be deemed to be vacant.
(5) A tenant or, as the case may be, a member of his family, referred to in sub-section (3) shall, have a right, as landlord of any residential building referred to in the said sub-section which may have been let out by him before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 to apply under clause (a) of sub-section (1) of Section 21 for the eviction of his tenant from such building, notwithstanding that such building is one to which the remaining provisions of this Act do not apply.
13. Restrictions on occupation of building without allotment or release.- Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part.
31. Penalties.- (1) Any person who contravenes any of the provisions of this Act or any order made thereunder or attempts or abets such contravention, shall be punished on conviction with imprisonment of either description for a term which may extend to six months or with fine which may extend to five thousand rupees or with both.
(2) Whoever demolishes any building under tenancy or any part thereof without lawful excuse shall be punished, on conviction, with imprisonment of either description for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.
(3) Where a person has been convicted for contravention of sub-section (1) of Section 4, the court convicting him may direct that out of the fine, if any, imposed and realised from the person so convicted, an amount not exceeding the amount paid as premium of additional payment over and above the rent for admission as a tenant or sub-tenant to any building may be paid to the tenant by whom such payment was made :
Provided that any amount so paid to the tenant shall be taken into account in awarding compensation or restitution to him in any subsequent claim.""
24. The plain reading of Section 11 & 13 of the Act clearly goes to show that no person shall let any building except in pursuance of an allotment order issued under Section 16 of the Act and further any person occupying the premises without any allotment order will be deemed to be an unauthorized occupant of the premises and in the present case, neither the petitioner was able to produce any allotment order in his favour nor was entitled for any benefit under section 14 of the Act. According to Section 11 of the Act the erstwhile landlords could not have let out the disputed premises to the Respondent No. 1 so long as the Act and Rules continued in force the control of letting vested in the appropriate authority and not in the parties.
25. In terms of Section 13 of the Act, without an order of allotment, tenants status under the deeming provision is that of an unauthorized occupant and that of trespasser and the suit for getting back possession from the trespasser can also be filed. However, it does not debar the rent control and eviction officer/appropriate authority under the Act from setting in motion the machinery for declaring vacancy of the premises in dispute when he is of the opinion that the premises which comes within the ambit of the rent control act is being occupied by the unauthorized occupant/trespasser without an allotment order. The UP Act No. 13 of 1972 of the Act does not make any distinction between the unauthorized occupant and the trespasser so as to limit the power of the Rent Control Eviction Officer/District Magistrate from initiating the proceedings under Section 12 of the Act particularly when the landlord fails to taken any eviction proceedings against the trespasser.
26. The Apex Court in the case of Nutan Kumar and others Vs. IInd Additional District Judge and others, 2002 (2) ARC 645 has held that Section 13 of the said Act specifically provides that a person who occupies, without an allotment order in his favour, shall be deemed to be an unauthorized occupant of such premises. As he is in unauthorized occupation he is like a trespasser. A suit for ejectment of a trespasser to get back possession from a trespasser could always be filed.Such a Suit would not be on the contract/agreement between the parties and would thus not be hit by principles of public policy also. However, the Apex Court in the aforementioned case has not said that for ejecting an unauthorized occupant/trespasser only the suit is a remedy. It has not any where put any restriction on the appropriate authority, to seek ejectment of the unauthorized occupant/trespasser by initiating the proceedings under Section 12 of the Act in the light of sections 11 and 13 of the Act.
27. I am fortified in my view by the following decisions which I wish to briefly refer to as follows;
1. Ajay Pal Singh and others Vs. District Judge, Meerut and others 2008 (2) ARC 264 "22- From the provisions of the Act and Rules framed thereunder, it is apparently clear that the legislature is aware of the fact that an unauthorized occupant is necessarily inducted into the premises contrary to the provisions of the Act by the landlord himself and despite such facts being in the knowledge of the legislature, it has nor placed any restriction on the right of the right of the landlord so far as release of such premises. which are deemed to be vacated under Section 12(4) of 1972 Act is concerned, either under the 1972 Act or Rules framed thereunder".
"23. In such circumstances, the intention of the legislature is cleared that the right of the landlord to make an application for release in respect of deemed vacancy covered by Section 12 (4) be not hampered or impaired part in any manner only because of his being inducted an unauthorized occupant. No restriction on his right to make an application under Section 16 (1)(b) has been provided for and therefore no restriction is required to be provided by the Court in such right of the landlord."
2. G. Industrial Syndicated Allahabad Vs. Rent Control and Eviction Officer Allahabad Rent Cases 1982 (585), "13. From the above, it would appear that in case of an illegal letting or subletting, the view taken was that the contract may be binding on the parties to it, but not on the authorities, which would mean that the possession of a person who has been illegally let in would be unauthorised. Section 11 and 13 of the present Act make that position very clear. No one now can either let out any premises without an allotment order nor can anyone occupy the same. If any one occupies the premises without an allotment order, he would not only be an unauthorized occupant but also liable to prosecution under section 31 of the said, Act. His possession being unauthorised cannot be recognised in the eye of law and if it cannot be recognised in the eye of law, there would be a vacancy. That would entitle the Rent Control and Eviction Officer under Section 16 to pass an allotment order."
"15. Counsel for the petitioner, however, urged that the use of the expression "where a landlord or a tenant ceases to occupy a building or part thereof" in indicative of the fact that this section will apply only to cases contemplated by Section 12 inasmuch as the words "cease to occupy" have been used in Sub-section (4) of Section 12. To us, it appears that Section 13 serves the dual purpose. It may apply to a case covered by Section 12 but it has to be read along with Section 11 as well. Section 13 is common to both the provisions. That being so, the applicability of Section 13 cannot be restricted to cases covered by Section 12"
"19. Assuming that Section 13 of the Act applies only to cases contemplated by Section 12, alternatively we find that, as possession of Nizam Shervani was unauthorised and illegal, there was a vacancy even at the time when the house was in his occupation and after it was vacated by him. Section 11 prohibits a person from letting any building except in pursuance of an allotment order issued under Section 16. Since there is a prohibition imposed on the right of any person, which will include a landlord and tenant both, the person occupying the premises would be in an unauthorised possession. Such a person could not be treated to be a tenant. The authorised possession of a person gives a right or authority to occupy it, whereas unauthorised would mean that the person occupying is not possessed of rightful or legal power and, as such, no legal competency which can have any recognition in the eye of law, as a result of which the premises would be deemed to be unoccupied or unfilled, or empty. It that is so, the Rent Control and Eviction Officer under Section 16 would be entitled to pass an order of allotment. The vancancy talked of in Section 16 takes within its purview also possession of a person which is not recognised in law. If a person without any authority occupies a premises, his possession would be of no value and the premises would be available to the District Magistrate for passing an allotment order under Section 16."
"20. In Murli Dhar Agrawal v. State of U. P. (supra), the Supreme Court found that since there was no prohibition in U. P., Act No. III of 1947 for letting or occupying, the contract arrived at between the two would be binding. The lacuna has not been removed. In Act XIII of 1972, there is a prohibition on the right of any person to let out which will impose a corresponding obligation not to occupy the same. In the absence of a provision like section 11 of the present Act, the Supreme Court held that the contract of letting in that case was binding between the landlord and the tenant. However, what is material to consider is that even in that case the Supreme Court found that such a contract was not binding on the District Magistrate and he could treat the building as vacant and evict therefrom the tenant. Section 11 has made the position crystal clear. The District Magistrate can ignore the contract arrived at between a landlord and the tenant and pass an appropriate order for allotment under Section 16. What he may be required to do is to afford an opportunity of hearing before evicting the tenant."
2. Jamil Ahmad Vs. Additional District Judge ARC 1995 1995 (2) 309 "9. The findings given by Prescribed Authority (Munsif), Dehradun on 13-04-1990 vide Annexure C.A.-13 is a judicial pronouncement after considering all aspect of the case and the present petitioner being a party to it is bound by it. In view of this judgment Annexure C.A.-13 this Court has no hesitation in coming to the conclusion that petitioner Jameel Ahmad son of Safique Ahmad is a rank trespasser. Section 13 of the Act lays down that no person shall occupy a building otherwise than under an order of allotment or release under Section 16 and if he does so he shall be deemed to be an unauthorized occupant of such building. The provisions of Section 13 are in addition to Section 31 which prescribes a penalty for unauthorized occupation of a house. The contention on behalf of the petitioner that even if he is a trespasser he cannot be evicted under the provisions of Act No. 13 of 1972 and a regular suit should have been filed for his ejectment, is not tenable. It is the petitioner himself who in collusion with respondent No. 4 Pradeep kumar brought the matter within the purview of Act No. 13 of 1972. The petitioner persuaded respondent No. 4 to file an application under the Act and he had succeeded in getting the house allotted in the name respondent No. 4. In revision the matter was remanded by the learned District Judge and it was thin that it came to be released in favour of the landlord. It has also been seen above that petitioner himself filed an application under Section 27 of the Act. It is not, therefore, open to him to argue that the case is not governed by Act No. 13 of the 1972."
"10. A reference in this connection may be made to the case of M/s. R.C. Bajpai and Company v. VIIth Additional District Judge, Kanpur Nagar, reported in 1994 (1) ARC 532. In the avobe case an earlier authority of this Court has been relied upon which is 1982(1) ARC 585. A Division Bench has held in the case of Geep Industrial Syndicate Ltd., Allahabad v. R.C. And E.O., Allahabad, as under:-
"Section 11 of the Act imposes a prohibition restriction against letting without an allotment order. Section 12 contemplates certain contingencies in which a landlord or tenant of a building would be deemed to have ceased to occupy it. Section 13 provides for restriction on occupation of building without allotment order. A conjoint reading of Section 11 imposes prohibition on letting without allotment order. Section 13 places restriction on occupation without an allotment or release. These two sections, it would appear that neither could a landlord let out a premises without an allotment order nor can anyone occupy it. These two provisions were enacted to undo the effect of Full Bench decision of this Court in Udho Das v. Prem Prakash. The learned Judge further observed as below ; " From the above admission it would appear that in case of an illegal letting or sub- letting, the view taken was that the contract may be binding on the parties to it, but not on the authorities which would mean that the possession of a person who has been illegally let in would be unauthorized. Sections 11 and 13 of the Present Act make that position very clear. No one can either let out any premises without an allotment order no can anyone occupy the same. It anyone occupy the premises without an allotment order, he would not only be an unauthorized occupant but also liable to prosecution under 31 of the said Act. His possession being unauthorized can not be recognized in the eye of law and of it cannot be recognized in the eye of law, there would be a vacancy."
3. Manoj Krishna Shukla Vs. Mahaveer 2007 (2) ARC 209 "13. The revisional Court has also recorded detailed findings regarding service of notice on the petitoner and his father, Sri Lok Nath Shukla. The Rent Control Inspector's report was signed by Sri Manoj Krishna Shukla, petitioner and verified by his Counsel, Sri Mukul Asthana. The procedure prescribed in the relevant rules including Rule 8, was followed by the concerned Rent Control Inspector and other rent control authorities. As far as opportunity of hearing is concerned, the revisional Court recorded detailed findings that written objections were filed by the petitioner opposing the release application no 15.5.2000 and the case was listed on 16.5.2000. Thereafter the case was listed on 20.5.2000. It was open for Manoj Krishan Shukla, petitoner in this writ petition to put forth his submission on or before 20.5.2000. He was also represented through a legal practitioner. The revisional Court had, thus, found that adequate opportunity of hearing was afforded to the petitioner."
"14. The revisional Court while relying on the judgments as reported in 1997 (2) ARC 592, Suraj Bhan v. Additional District Judge, Agra, 1997 (2) ARC 558; Raj Kumar Kanodiya v. IIIrd Additional City Magistrate, 1998 (1) ARC 153 (SC), Narayani Devi v. Mahendra Kumar Tripathi, 1979 ARC 290, Hardev Upadhyay v. Dr. Laeeq Ahmad, has held that the petitioner, Manoj Krishna Shukla, revisionist was illegally occupying the premises without having any valid allotment order of the premises and, therefore, he had no right to contest the release application or file the revision. There was nothing on record to prove that the petitioner, Manoj Krishna Shukla's father, Sri Lok Nath Shukla was paying rent to the previous landlord, Ram Autar Shukla. No documents have been filed before the Rent Control Officer or the revisional Court and even in this Court to prove that the tenancy existed between Ram Autar Shukla and Lok Nath Shukla. The petitoner has failed to demonstrate before this Court also that he was a lawful occupant, having an allotment order in his favour of this father, Sri Lok Nath Shukla was ever inducted as tenant."
"29. Even otherwise, it is well settled that an illegal and unauthorized occupant without having any right or title and valid allotment order cannot participate in the release proceedings before the trial Court. However, in the present case, the petitioner was afforded opportunity to remain associated with the trial. He has also taken assistance of a legal practitioner, Sr. Mukul Asthana, who had filed his Vakalatnama and the objections. The petitoner has failed to prove before the trial Court, revisonal court and this Court also that he was a lawful, legal tenant of the house in dispute. It is amply clear that the petitioner has failed to establish a case for inference in the judgment and order passed by the lower Court, which has recorded concurrent findings of facts. He has also failed to persuade the Court to take a different view in the matter other than what has been decided by the Courts below"
28. The premises in the possession of an unauthorized occupant would be deemed to be vacant for the purposes of Rent Control Act, even if an unauthorized occupant is inducted into the premises contrary to the provisions of the Act by the landlord himself, the legislature has not placed any restriction on the rent control authorities to initiate proceedings under Section 12 of the Act. So far as the release of such premises which are deemed to be vacant under Section 12 (4) of the Act is concerned.
29. There is one more aspect in this regard which cannot be ignored if the person let out his house ignoring the provisions prohibiting the letting without allotment order or has occupied the premises forcefully without any allotment order would be an unauthorized occupant but also liable to be prosecuted under Section 31 of the Act and his possession being unauthorized cannot be recognized in the eyes of law. There would be a vacancy and that would entitle the Rent Control Eviction Officer under Section 16 to pass an allotment/release order.
30. Bare perusal of the record clearly would show that there is no cogent material on record to establish that the Respondent No. 1 or his father was occupying the disputed premises with the consent of the landlord immediately before the commencement of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 i.e. 5th July 1976, therefore, Respondent No. 1 who is admittedly occupying the premises in dispute without allotment order is an unauthorized occupant within the meaning of Sections 11, 12, 13 & 31 of the Act.
31. A perusal of the record shows that the impugned orders are based on complete misreading of the case and misconception of the legal position relevant to the matter. The courts below have mechanically rejected the case of the petitioners by slip shod order and arrived at a cryptic, abrupt, arbitrary and erroneous conclusion that the Respondent No. 1, Rajendra Sharma is an authorized occupant without considering the evidence in proper perspective and appreciating the legal position relevant to the matter. The assessment of evidence has been vitiated by error of law and procedure causing substantial miscarriage of justice. The reasons assigned by the courts below are superficial and it has applied a very casual approach.
32. The impugned judgment and orders dated 23.10.2010 and 15.2.2010 passed by the courts below, looked from any angle, cannot stand the scrutiny of law. The order passed by the courts below is totally illegal and against the settled principle of law.
33. In view of the above, both the Writ Petitions No. - 69946 of 2010 & 69993 of 2010 are allowed, the order dated 23.10.2010 passed by the District Judge, Kanpur in Rent Revision No. 23 of 2010 and order dated 15.2.2010 passed by the Rent Control and Eviction Officer/VIIth Additional City Magistrate, Kanpur Nagar are hereby set aside.
34. The matter is remanded to the Rent Control and Eviction Officer/VIIth Additional City Magistrate, Kanpur Nagar for re-decision on the question of vacancy in the light of the observation made hereinabove after giving reasonable opportunity of hearing to the parties within a period of three months from the date a certified copy of this order is produced before it without granting any unnecessary adjournment to the parties concerned.
35. All the parties are directed to appear before the Rent Control and Eviction Officer/VIIth Additional City Magistrate, Kanpur Nagar on 5.7.2012 to enable the authority to give priority to the case and to proceed immediately.
36. A copy of the the judgment and order be kept on record of the Writ Petition No. 69946 of 2010.
Order Date :- 28.5.2012 vinay Hon'ble Shashi Kant Gupta, J.
Allowed.
For order, see order of date passed on separate sheets.
Order Date :- 28.5.2012 vinay