ANAND AGARWAL Vs. DISTRICT JUDGE, LUCKNOW

JUDGEMENT

(1.) The dispute in this writ petition relates to a two door shop situated on the ground floor of house No.244/156, Yahiyaganj, Lucknow which was owned by Late Atma Singh Sahani. The shop in question was let out by Atma Singh Sahani to Rameshwar Dayal Agrawal about 55 years back on a monthly rent of Rs.25/-. On the death of Atma Singh Sahani, his son Sri Jagat Singh Sahani inherited the tenant shop and started accepting the rent and issuing rent receipt to? Rameshwar Dayal Agrawal. Rameshwar Dayal Agrawal died in 1983, leaving behind four sons. One of the sons of Rameshwar Dayal, namely, Satya Prakash Agrawal died in the month of April 2005, leaving behind his widow Smt. Darshan Devi and a son Anand Agrawal who is petitioner in this writ petition. Similarly, another son Ravi Prakash Agarwal died in the month of January, 2010, leaving behind his son Gaurav Agrawal and a widow. The tenancy rights in respect of the shop in question devolved upon all the legal heirs of Rameshwar Dayal Agrawal in accordance with the provisions of U.P. Urban Buildings (Regulation of Letting & Eviction) Act, 1972 (hereinafter referred to as the Act).

(2.) After the death of Rameshwar Dayal Agrawal, the rent receipt was being issued in the name of Satya Prakash Agrawal. In the meantime, the monthly rent was also enhanced from Rs.25/- to Rs.31.25 per month. The two sons of the original tenant, namely, Satya Prakash Agrawal and Ravi Prakash Agrawal have been? jointly carrying on business in the shop in question under the name and style of M/s. Anand Metal Stores. On the death of Satya Prakash Agrawal, the petitioner being his son became partner in the firm along with Ravi Prakash Agrawal. After the death of Ravi Prakash Agrawal in the year 2010, the said firm became the proprietorship firm of the petitioner alone. The opposite party no.3 after having purchased the property approached the then tenants Satya Prakash Agrawal and Ravi Prakash Agrawal with the proposal to renowate the said property and to enable them to do business as before in the newly constructed shop on a monthly rent of Rs.250/-. Pursuant to this settlement, the monthly rent of Rs.250/- was being paid since October, 1995 to the opposite party no.3, who acknowledged by issuing a rent receipt. However, since December, 2003, the opposite party no.3 refused to accept the rent and filed a suit for eviction and recovery of arrears of rent against Satya Prakash Agrawal. The said SCC Suit No.219 of 2001 was dismissed vide judgment and decree dated 17.10.2003.

(3.) It was pleaded by the opposite party no.3 in the said suit that the shop in question was a new construction and the Act No.13 of 1972 was not applicable to it. The opposite party no.3 feeling aggrieved by the dismissal of his suit filed SCC Revision which was partly allowed and the case was remanded back with the direction to record a fresh finding on issue no.4 which was framed as to whether provisions of Act No.13 of 1972 were applicable to the shop in question or not. The petitioner challenged the aforesaid judgment by filing a Writ Petition No.103 (R/C) of 2008. The said writ petition was disposed of by this Court on 10.07.2008 taking into consideration that the opposite party no.3 had also moved an application for release under Section 16 (1) (b) of the U.P. Act No.13 of 1972 before the Rent Control and Eviction Officer (hereinafter referred to as the RCEO). This Hon'ble Court while disposing of the writ petition also permitted the court below to consider the conduct of the landlord while deciding issue no.4. The petitioner filed an application before the RCEO for dismissal of the release application on the ground that the release application was not maintainable in view of the fact that the opposite party no.3 had already taken a plea in the SCC suit that the provisions of Act No.13 of 1972 were not applicable to the shop in question and the question was yet to be adjudicated by the SCC court. However, the opposite party no.2 ignoring the observation made by this Hon'ble Court passed the impugned order dated 18.01.2011 declaring the shop in question vacant under Section 12 of the Act No.13 of 1972. The said order of declaring the vacancy has been challenged by the petitioner by means of the instant writ petition.