MEENU BHATIA Vs. DALIP KUMAR AND ANR

JUDGEMENT

(1.) Heard Sri Indra Mani Tripathi, learned Counsel for the petitioner and Sri Alok Kumar Yadav, learned Counsel for the respondent No.1.

(2.) The petitioner has filed the above noted writ petition praying for quashing of the order dated 04.04.2013, passed by the Rent Control and Eviction Officer/Additional City Magistrate, Kanpur Nagar, whereby he has declared the shop in dispute vacant.

(3.) The brief facts of the petition are that the petitioner is a tenant of the disputed shop at the rate of Rs.550/- (five hundred fifty) per month and the respondent no.1 is the landlord of the same. Late husband of the petitioner i.e., Ravi Kumar Bhatia, took the shop in dispute from late Maheshwari Prasad i.e., father of the respondent no.1 on rent in the year 1984 at the rate of Rs.200/- per month which was enhanced from time to time and at present the rate of rent is Rs.550/- per month. The husband of the petitioner was doing the business in the shop in dispute and after the death of her husband on 19.04.2000 the petitioner is carrying on the business of socks and slippers stamps in the shop in dispute. The respondent no.1, the landlord, in order to take undue advantage of the fact and in order to evict the petitioner managed to move an application on behalf of the respondent no.2 dated 10.07.2012 for allotment of the disputed shop on the ground that originally one Bholu was the tenant of the shop in dispute and the said Bholu vacated the shop in dispute in the year 1989 and handed over the possession to late Ravi Kumar Bhatia as such he was unauthorized occupant having no allotment order in his name and after his death Anil Kumar Bhatia is occupying the same as such the shop is vacant and can be allotted to him. The Prescribed Authority under Act No.13 of 1972 directed the Rent Control Inspector to submit a report regarding vacancy, who submitted his report on 31.07.2012 that the disputed shop is under occupation of Anil Kumar Bhatia and as such the shop in dispute is vacant. Having received the notice from the Prescribed Authority, Anil Kumar Bhatia filed an objection against the report of Rent Control Inspector dated 31.07.2012. It was sated in the affidavit of Sri Anil Kumar Bhatia that the report of Rent Control Inspector dated 31.07.2012 was absolutely false on the ground that Smt. Meenu Bhatia widow of Ravi Kumar is tenant in possession of the shop in dispute and the applicant has no concern with the shop in dispute nor is in possession of the same. It was further stated by Sri Anil Kumar Bhatia in his objection that the report dated 31.07.2012 was prepared by the Rent Control Inspector after colluding with Dalip Kumar and Sarvesh Kumar and was prepared on the wrong and illegal facts. Subsequently Smt. Meenu Bhatia widow of Ravi Kumar Bhatia also filed her objection and stated that her husband late Ravi Kumar Bhatia was the original tenant of the shop in dispute and after his death on 19.04.2000 she along with her minor son became the tenant of the shop in dispute being his heirs and legal representatives. It was further stated by the petitioner that the Rent Control Inspector by colluding with Dalip Kumar and Sarvesh Kumar submitted his report in which he illegally narrated the fact that Anil Kumar Bhatia was found in possession of the shop and also carrying his business. It was further stated that Anil Kumar is brother-in-law of the petitioner and he has no concern with the shop in dispute or the business. A rejoinder affidavit was also filed on 23.01.2013 on behalf of landlord, respondent no.1 against the affidavit of petitioner. The Rent Control and Eviction Officer/Additional City Magistrate (Second) declared the vacancy in respect of the disputed shop by his order dated 04.04.2013 and has fixed 19.04.2013 for release of the shop in dispute. Rent Control and Eviction Officer without considering the affidavit filed by the petitioner and Anil Kumar Bhatia passed the illegal order without applying his judicial mind, relying upon the report submitted by Rent Control Inspector. The case of the respondent no.1 that the petitioner is unauthroized occupant of the shop in dispute since he occupied the shop from earlier tenant Bholu in the year 1984 and there is no allotment order in his name as such vacancy occurred. Meaning thereby the vacancy subsist from the year 1984 and the application for declaring vacancy was moved in the year 2012 as such the application was highly time barred and was not maintainable even then the Court below illegally declared the vacancy. The petitioner's husband has taken the shop in dispute on rent at the rate of Rs.200/- per month from late Maheshwari Prasad and the rent was enhanced to Rs.550/- per month and after the death of Ravi Kumar Bhatia, the petitioner is in possession of the shop in dispute and herself carrying on the business. The name of petitioner late husband was also entered in the Panchshala of the year 1987-92 which clearly established that the shop in dispute was taken on rent in the year 1984-85. No rent is due against the petitioner and the petitioner has always deposited the rent in time for which the receipt was also issued by the landlord. The petitioner herself is carrying on the business in the shop in dispute after the death of her late husband and Anil Kumar Bhatia have no concern with the shop in dispute nor he is in possession of the shop in dispute. Anil Kumar himself has filed his affidavit in which he clearly stated that he has nothing to do with the shop in dispute nor he is in possession but the court below illegally disbelieve the affidavit. The Rent Control Inspector illegally submitted his report in collusion with the respondent no.1 and 2 in order to evict the petitioner. Even if it is presumed that the petitioner was in possession of the shop in dispute without the allotment order which was very well in the knowledge of the tenancy in the year 1984 even then they mum for 28 years which clearly established this fact the petitioner was in possession with the consent of the landlord. The Rent Control and Eviction Officer, Kanpur Nagar has failed to see this aspect of the matter that the disputed premises could not have been declared vacant in view of the provision of 12(1) (a) of U.P. Act No.13 of 1972. Late husband of the petitioner was legal tenant of the shop in dispute and after his death on 19.04.2000 the petitioner and his minor son is his heirs and legal representative as such are automatically legal tenant of the shop in dispute. The respondent no.1 has not given any proof that the shop in dispute was not given by his late father to the husband of the petitioner but the husband of the petitioner have illegally been inducted by the earlier tenant Bholu even then the court below illegally disbelieved the version of the petitioner.