HANS SHARMA Vs. DISTRICT JUDGE DEHRADUN

JUDGEMENT

(1.) SUDHIR Narain, J. This writ petition is directed against the order dated 29-4-1992 declaring the premises in question as vacant passed by the Rent Control and Eviction Officer and subsequently releasing the same in favour of landlord-respon dent No. 2 on 2nd June, 1992 under Section 21 (1) (b) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the order dated 6-11-1992 dismissing the revision by respondent No. 1 against these orders.

(2.) THE fact, in brief, are that Sri Sita Ram let out the first floor portion of House No. 63, New Market, Dehradun in favour of the petitioner. Sri Sita Ram sold the disputed property in favour of respondent Nos. 3. and 4 on 27th June, 1990. Respondent Nos. 3 and 4 filed application for release of the shop in question on 2nd June, 1992. It was alleged that the petitioner was in occupation without any allotment order being passed in his favour by the Rent Control and Eviction Of ficer. His occupation was unauthorised and it should be deemed as vacant. THE petitioner filed an objection. It was stated by him that the shop in question was newly constructed and at the time of letting in the year 1981 U. P. Act No. XIII of 1972 was not applicable. He was not an unauthorised occupant as he was legally inducted as tenant by the erstwhile owner of the shop in question. 3, THE Rent Control and Eviction Officer found that as the petitioner was let out the accommodation in 1981 without any allotment order being passed in his favour it shall be deemed as vacant and passed an order declaring vacancy on 29-4-1992 and subsequently was released in favour of the landlord on the ground that they needed it for their personal use. THE order of vacancy of 29-4-1992 and the order of release passed on 2-6-1992 was challenged by filing a revision by the petitioner. THE revision has been dismissed by respondent No. 1 on 6-11-1992. 4. I have heard learned counsel for the parties. 5. Learned counsel for the petitioner urged that at the time of letting the provision of U. P. Act No. XIII of 1972 was not applicable and therefore it was not necessary to obtain any allotment order. THE petitioner did not lead any evidence to prove this fact Sri Hans Raj, landlord (respondent No. 3), filed affidavit stating that the shop in question was first assessed by the Nagar Palika, Dehradun in the year 1963-1968. He also filed assessment for the year 1963-1968, 1968-1973 and 1989-1994. THE first assessment was alleged to have been made on 1st October, 1964 relating to shop in question which is on the first floor. THEre was no evidence let by the petitioner to the contrary. 6. THE petitioner was claiming that the provision of U. P. Act No. XIII of 1972 was not applicable. THE initial burden is upon the person who seeks exemption from the operation of the Act. Section 2 of the Act provides for the exemption from the operation of the Act. One of the grounds is that the building shall be exempted from the operation of the Act if it has been constructed within a period of ten years. 7. In Jagdish Saran Gupta v. IInd Additional District Judge, Moradabad, 1993 (1) ARC 417, it has been held that it is for the person who seeks exemption from the operation of the Act to lead evidence to prove that the Act is not applicable. THE initial burden of proof is upon him, in this case the petitioner did not lead the evidence to show that in which year the shop was constructed and when it was first assessed. On the other hand the landlord-respondents filed extract of the Municipal Assessment for the year 1963-1968 and according to it the date of first assessment relating to shop in question was 1-10- 1964. On the date of letting to the petitioner by the landlord ten years had already expired. THE petitioner cannot claim exemp-tion from the operation of the Act. 8. Learned counsel for the petitioner submitted that the Rent Control Inspec tor had submitted a report that the shop in question is exempt for the operation of the Act. A copy of the report of the Rent Control Inspector has been annexed as Annexure-4 to the writ petition. THE Rent Control Inspector only noted the version of the landlord and the version of the petitioner. He has not given any conclusive opinion on the basis of any material to indicate that the shop in question is exempt from the operation of the Act. 9. Learned counsel for the petitioner then urged that the Rent Control and Eviction Officer has not recorded any specific finding with regard to the date of construction of the shop in question. THE petitioner has no where asserted that the point was raised before the Rent Control and Eviction Officer regarding the date of construction of the shop in question. Admittedly the petitioner did not lead any evidence to show the specific date of construction of the shop in question and to show as to when it was first assessed. On the other hand respondent Nos. 3 and 4 had filed extract of municipal assessment. 10. THE Rent Control and Eviction Officer recorded a finding that the petitioner was in unauthorised occupation on the basis that the provision of the Act is applicable. THE petitioner cannot make any grievance that no specific finding has been Recorded reading the date of completion of the building. It is admitted to the petitioner that he was let out the accommodation without any allotment order being passed in his favour by the Rent Control and Eviction Officer. Section 13 of the Act prohibits that no person shall occupy any building In any capacity except under an order of allotment or release under Section 16, and if a person so pur ports to occupy it, he shall, without, prejudice to the provision of Section 31, be deemed to be an unauthorised occupant of such building or part. 11. In Full Bench decision of this Court in Nootan Kumar v. IInd Additional District Judge, Banda, 1993 (2) ARC 204, it was held that if an accommodation has been let out without any allotment order having been passed in favour of the tenant, the agreement will be void and unenforceable in law. 12. THE occupation of the petitioner in these circumstances was unauthorised and the accommodation was validly declared as vacant. THE release order has been passed in favour of the landlord on the finding that he requires it bona fide. A prospective allottee has no right to challenge the said order. 13. In view of the above there in no merit in the writ petition. It is accordingly dismissed. 14. In the end the learned counsel for the petitioner prayed that he has been in occupation of the shop in question since 1981. He may be granted some time to vacate the same. Considering the facts and circumstances of the case the petitioner is granted six months time to vacate the shop in question provided he gives a writ ten undertaking on affidavit before the Rent Control and Eviction Officer, respon dent No. 2, within three weeks from today that he would vacate the accommodation in question within the time granted by this Court and will handover its peaceful possession to landlords-respondent Nos. 3 and 4. Petition dismissed. .