JAMIL AHMAD Vs. ADDL. DISTRICT JUDGE (SPL. JUDGE)

JUDGEMENT

(1.) THE present writ petition has been filed by a person who claims himself to be the tenant of the accommodation in question. The case of the petitioner is that he is a tenant of house bearing Municipal No. 56/63 Arvind Marg, Dehradun of which respondent No. 3 is the landlord. An application was filed by respondent No. 4 Shri Pradeep Kumar, prospective allottee for a declaration of vacancy on the ground that the tenant Jameel Ahmed is shortly going to vacate the house. On this application the Rent Control and Eviction Officer (R.C. and E.O.) directed the Rent Control Inspector to make a spot inspection and submit his report. The Inspector filed his report Annexure 1 dated 5.2.1991 that he was informed by Jameel Ahmad that he is going to vacate the house soon. On the basis of the report submitted by the Inspector, the R.C. and E.O., Dehradun passed order Annexure -2 on 8.3.1991 that the house which is in unauthorised occupation of Jameel Ahmad is declared vacant. By another order dated 10.4.91 the application for release filed by the landlord was rejected and the house was allotted to respondent No. 4 Pradeep Kumar. Against that order the landlord filed a revision in the Court of District Judge, Dehradun which was accepted on 13.8.1993 and the matter was remanded to R.C. and E.O. After remand the application of the landlord for release was allowed on 24.11.1993 vide order Annexure -5. Being aggrieved against order Annexure -5 the present writ petition has been filed. I have heard Sri K.K. Arora for the petitioner and Sri Rajesh Tandon for respondent No. 3 and have gone through the record. The respondent No. 4 has not appeared before this Court inspite of notice.

(2.) THE learned counsel for the petitioner has argued that before declaring the premises as vacant no notice was given to Jameel Ahmad and that the house could not be declared vacant on the basis of an application filed by the prospective allottee. It is also argued that even if it is assumed that Jameel Ahmad expressed an intention of vacating the house in near future, admittedly he had not vacated it and, therefore, there as no vacancy. It is further argued that any of the clauses of Section 12 are not applicable to the case and it cannot be said that a deemed vacancy had arisen. It was also argued that according to landlord, Jameel Ahmad had forcibly taken possession of the house and if that was so, Jameel Ahmad could not have been ejected under any provision of U.P. Act No. 13 of 1972. It was argued that if Jameel Ahmad was a trespasser the remedy of the landlord was to file a regular suit for ejectment of the trespasser.

(3.) AFTER going through the record very carefully this Court is of the opinion that the contention on behalf of the landlord is correct and Jameel Ahmad is an unauthorised occupant. The landlord has filed a supplementary affidavit on 2.6.1995 from which it appears that Jameel Ahmad entered the premises by breaking open the lock on 3.9.1989. A F.I.R. was lodged by the landlord on 8.9.1989 a reference of which has been made in Annexure -C.A. -3. On the basis of F.I.R. dated 8.9.1989 the police registered a case on 16.10.1989. On 2.11.1989 the landlord approached the District Magistrate seeking his help for getting the accommodation vacated. The District Magistrate directed the City Magistrate to take necessary action and the City Magistrate ordered the S.H.O. to take necessary steps. A complaint was lodged by the landlord in the Court of Addl. Judicial Magistrate on 29.3.1990.