ARUN KUMAR Vs. MUNSIF MIRZAPUR AND ANOTHER

JUDGEMENT

(1.) BOTH these writ petitions have been filed by the landlord. Shanker Lal Yadav respondent in both the writ petitions is the tenant. Initially landlord filed suit for eviction on the ground of default against the tenant in the form of S.C.C. Suit No. 25 of 1988. In the said suit tenant took up the plea that building in dispute had been let out to him without allotment order hence he was an unauthorized occupant and suit was not maintainable. The said plea was accepted in view of Full Bench Authority of this Court in Nutan Kumar and others v. IInd A.D.J. and others : 1993 (22) ALR 437 (FB) and the suit was dismissed by J.S.C.C. On 28.2.1997, revision against the said judgment and decree was dismissed on 28.2.1998 (The Full Bench was later on over ruled by Supreme Court in : AIR 2002 SC 3456). Thereafter tenant himself filed application for allotment before the Rent Control and Eviction Officer/City Magistrate, Mirzapur, which was registered as case No. 6 of 1997, Shanker Lal Yadav v. Triloki Nath. In the said case initially some order was passed on 30.7.2001 against which three revisions were filed. Revisions were disposed of/allowed and the matter was remanded to Rent Control and Eviction Officer to first decide the question of vacancy and in case it was held that there was vacancy then first release application should be decided and in case release application of the landlord was rejected then allotment application should be considered. Tenant himself argued before the Rent Control and Eviction Officer that he was residing without allotment order hence he was unauthorized occupant and there was vacancy. Ultimately, by order dated 28.3.2002 vacancy was declared by Rent Control and Eviction Officer. Thereafter, by order dated 3.1.2003 release application of the landlord was rejected by Rent Control and Eviction Officer. Against the said order landlord filed R.C. Revision No. 1 of 2003. District Judge, Mirzapur through judgment and order dated 14.2.2003 dismissed the revision, hence the second writ petition.

(2.) IN the release application and affidavit filed in support thereof it was stated that in the house of which accommodation in dispute is a part there were six rooms out of which two were in possession of tenant -respondent and 4 in possession of landlord petitioner. It was further pleaded that family of the landlord consisted of himself, his wife, one son and father and mother. It was stated that occasionally brother of the landlord also visited him and some accommodation was required for him also. Tenant filed counter -affidavit and averred that there were 15 or 16 rooms in the entire house. Rent Control and Eviction Officer held that even if the case of the landlord regarding extent of accommodation in his possession was taken to be correct, still there were two rooms for each of the family member of the landlord. Four rooms for 5 persons as alleged by the landlord do not make two rooms available for each of the five family members. Rent Control and Eviction Officer towards the end of its order held that in the house there were about 12 rooms. Rent Control and Eviction Officer has not mentioned that from where he got this figure of 12 rooms.

(3.) ACCORDINGLY , I find that judgment and order passed by both the Courts below are erroneous in law. They wrongly permitted the tenant to participate in the release proceedings. Even otherwise there was nothing on record to show that allegation of the landlord regarding availability of only four rooms to him was wrong.