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2009 (75) ALR 218
ALLAHABAD HIGH COURT
SUNIL AMBWANI, J.
LIFE INSURANCE CORPORATION OF INDIA, CENTRAL ZONAL OFFICE, KANPUR
Versus
XIIth ADDL. DISTRICT JUDGE, KANPUR NAGAR and others
C.M.W.P. No. 19292 of 1991
Decided on : February 6, 2009
Eviction - Public Premises - U.P. Public Premises Eviction of Unauthorised Occupants Act, 1971 - Section 9
Fact of the Case:
The Life Insurance Corporation of India filed a writ petition against the judgment and order allowing the appeal and setting aside the order of the Prescribed Authority, which held that the respondents are not liable to be evicted from the shop. The Corporation owned a building with a shop that was sublet without permission for a wine business.
Finding of the Court:
The appellate authority found that the tenancy was proved but the sub tenancy was not proved by the Corporation. The burden to prove sub-tenancy was on the landlord. The court analyzed the evidence and found that the subletting was not established, and the notice terminating the tenancy on the ground of subletting was not valid.
Issues: The main issue was whether the subletting of the shop was proved by the Corporation and whether the notice terminating the tenancy on the ground of subletting was valid.
Ratio Decidendi: The court held that the burden to prove sub-tenancy was on the landlord, and the subletting must be proved by direct evidence. The court also emphasized that the notice terminating the tenancy on the ground of subletting must be valid and supported by evidence.
Final Decision: The writ petition was allowed, the judgment and order of the appellate authority were set aside, and the order of the Prescribed Authority directing eviction was restored.
SUNIL AMBWANI, J.-Heard Sri Manish Goyal for Life Insurance Corporation of India, the petitioner. Sri R.B. Singhal appears for respondent No. 2/1 to 2/4 and respondent No. 3/1.
2. The Life Insurance Corporation of India, Central Zone Office, Kanpur-2, the Mall, Kanpur has preferred this writ petition, against by the judgment and order dated 19.3.1991 passed by the XII Additional District Judge, Kanpur Nagar under section 9 of the U.P. Public Premises Eviction of Unauthorised Occupants Act, 1971 (in short the Act of 1971), by which the appeal was allowed and while setting aside 'the order of the Prescribed Authority it was held that the respondents are not liable to be evicted from the shop. The appellate authority, however, made the Corporation entitled to arrears of rent with effect from 1.7.1976.
3. Sri Ram Gopal, the tenant, and Sri Govind Jaiswal, the respondent No.3, impleaded as sub tenant of the shop, died during the pendency of the writ petition, and were substituted by their heirs by order dated 1.11.2007 and 15.2.2008 respectively.
4. Brief facts giving rise to this writ petition are that the Life Insurance Corporation of India (in short the Corporation) owns building No. 127 on the Mall Road, Kanpur which includes shop No.6, a corner shop with two doors, one of which opens on the Mall Road and the other in a lane and quarter No.7' in the building. The shop No.2 was let out to Ram Gopal on a monthly rent of Rs. 100/. On an inspection made by Sri L.D. Kandpal, the caretaker of the building appointed by the Corporation, it was found that Late Ram Gopal had divided the shop into two portion without the permission and consent of the Corporation, and has sub let the front portion towards the Mall Road to Sri Har Govind Jaiswal, the respondent No.3. Sri Har Govind Jaiswal has started an independent business in the name and style of "New Jaisons Wine Merchant' selling English Wine in the sub-let portion of the shop. Sri Ram Gopal continued with his business of selling ice candies in the rear portion. On this report of Sri R.N. Shukla, the Assistant Administrative Officer in the Estate Department of the Corporation, inspected the premises on 23.6.1976 and found the report of Sri L.D. Kandpal to be correct. He submitted his own report on 23.6.1976. The Corporation gave separate notices dated 26.7.1976 to late Sri Ram Gopal and also to late Sri Govind Jaiswal. By the notice the Corporation terminated the tenancy of Late Sri Ram Gopal and directed him to vacate the accommodation as they had become unauthorised occupants of the public premises. The notices were served on 31.7.1976, and the application was filed under section 4 (7) of the Act of 1971, before the Prescribed Authority seeking the eviction of the unauthorised occupants.
5. The notices sent by the Prescribed Authority were duly served on both the tenant and sub tenant. Late Ram Gopal, the tenant, filed objections to the notice stating that he is tenant in occupation of shop No.6 and quarter No.7 of premises No .127, the Mall, Kanpur @ Rs. 100/- per month. He denied that he had sub let a portion of the shop to opposite party No.2 for running the wine shop in the name and style of 'New Jaisons Wine Merchant'. The notice was based on false and baseless allegations. The notice was illegal and uncalled for. The opposite party No.2 was not the sub tenant and was not in possession of the shop. In para 7 the sub letting was denied. In the additional pleas it was stated in para 11 as follows :
"11. That the opposite party No.1 entered into a partnership for carrying on a business of Foreign liquor with the permission of the District Magistrate, Kanpur. However, the said business was closed down in the very beginning. The opposite party No.2 was not a sub-tenant of the opposite party No. 1."
6. Sri L.D. Kandpal and Sri R.N. Shukla were examined by the Corporation in support of the allegations. They proved the sub tenancy. Sri L.D. Kandpal stated that he is serving in the Li
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