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2009 Supreme(All) 3054
[2009(9) ADJ 664]
ALLAHABAD HIGH COURT
BEFORE : MRS. POONAM SRIVASTAVA, J.
KAMLA DEVI ....Petitioner
Versus
MUNNI DEVI TRIPATHI AND ANOTHER ....Respondents
(Civil Misc.Writ Petition No. 32591 of 2009, decided on 3rd September, 2009)
Counsel :
R.P. Shastri, A.K. Shukla and S.C. Tiwari for the Petitioner; Prateek Sinha and A.N. Sinha for the Respondents.
Headnote:U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 13(2) and 16(b)—Release application—Declaration of vacancy—Question of limitation—Determination of—House in question declared vacant by R.C. & E.O.—And, thereafter, stands released in favour of landlord and rate of rent Rs. 18.75 p.m.—Tenant did acquire an accommodation in a vacant condition within municipal limits after advent of Act, he chose not to put it for his own use, and subsequently preferred to sell it off and continued to occupy tenanted premises—This is sufficient to hold that a vacancy has come in existence—Declaration of vacancy was in year 2007, right of landlord to get house released under Section 16(b) of Act, cannot be taken away—In view of decision, as well as findings recorded by R.C. & E.O. allowing release application, there was no merit in instant case, specially one of the sons acquired another house, and fact that landlady is not living with son, is of no consequence and this alone cannot deprive landlady to use her own house—Thus, judgment and orders of Courts below are confirmed. [Paras 8, 9, 10, 11 and 12]
Hon’ble Mrs. Poonam Srivastava, J.—In the instant writ petition, the order dated 29.5.2009 releasing the house in dispute passed by the Additional District Judge, Court No. 13, Kanpur Nagar in Rent Revision No. 38 of 2008, Kamla Devi v. Munni Devi and another, as well as order dated 5.2.2008 passed by the Rent Control and Eviction Officer/Additional City Magistrate/IIIrd Kanpur Nagar in case No. 32 of 2007, Anil Kumar v. Kamla Devi, are impugned. The disputed house No. 107/152-A, Jawahar Nagar, Kanpur which consists of two rooms, half courtyard and Chabutara and common latrine, bath room. This has been declared vacant by the Rent Control and Eviction Officer and thereafter the said house stands released in favour of the landlord. The rate of rent is Rs. 18.75 per month.
2. At the time when the writ petition was moved as a fresh case initially an interim order dated 13.7.2009 was passed that since the facts involved are not in dispute and, therefore, final disposal/final argument of the writ petition shall be advanced at the time of admission itself.
3. Sri R.P. Shastri and Sri Arun Kumar Shukla Advocates appearing on behalf of the petitioner as well as Sri A.N. Sinha and Sri Prateek Sinha Advocates appearing for the contesting respondent-landlord have submitted their written arguments. As agreed between the parties, the writ petition is heard finally.
4. The undisputed facts are that on 19.12.2002 Lal Bahadur Nigam died leaving his wife Kamla Devi and three sons Ajay Kumar, Vijay Kumar and Anand Kumar who steps in the shoes of their father and became joint tenant. Lal Bahadur Nigam constructed his own house No. 294C Block Sujatganj, Kanpur Nagar and Vijay Kumar also constructed another house No. 294/33-E Block Shyam Nagar, Kanpur, thereby the landlord’s claim that there is an existence of vacancy under Section 13(2) of the U.P. Act No. 13 of 1972 (hereinafter referred as the Act).
5. The first challenge in respect of the judgment under challenge relates to the question of limitation. In fact an application was moved by one Anil Kumar, respondent No. 2 on 4.5.2007 for allotment since a vacancy has come in existence. Thus the rent control machinery started. The Rent Control and Eviction Officer declared vacancy after getting the accommodation inspected by the Rent Control Inspector and thereafter the landlord filed a release application which has been allowed. The respondent No. 2 is a prospective allottee and, therefore, he has no right to challenge the release application which stands allowed by the Court below. However, after filing of allotment application, the respondent No. 2 has not challenged the order of release. The tenant-petitioner claims it to be a manipulated step and therefore, the entire procedure of declaration of vacancy is liable to be nullified. After the allotment application was moved, the Rent Control Inspector visited the premises and submitted his report on 6.6.2007. Vacancy was declared vide order dated 5.2.2008, Annexure-2 to the writ petition, on the ground that late Lal Bahadur Nigam constructed a house within the municipal limit 294 C Block Sujatganj, Kanpur and also that Vijay Kumar son of Kamla Devi and Lal Bahadur Nigam has also constructed house No. 294/33 E Block Shyam Nagar, Kanpur, consequently vacancy was declared. A release application was filed which was allowed and challenged under Section 18 of the Act. The sale deed paper No. 2-Ga was brought on record before the revisional Court and a conclusion was arrived at that the name of late Lal Bahadur Nigam was recorded in Nagar Mahapalika, Kanpur Nagar, Plot No. 294 Block C Scheme 2, Sujatganj, Kanpur having an area 200 square yards or 167.22 square meter vide lease deed executed on 30.5.1970 for a period of 99 years. Kanpur Development Authority sanctioned the plan on 24.11.1976 and thereafter constructions were made. The tenants-petitioner claimed that they have sold the said house vide registered sale deed on 28.2.2005. Extract of
