MOHAN SINGH Vs. IST ADDITIONAL DISTRICT JUDGE LUCKNOW

JUDGEMENT

(1.) This writ petition is directed against the order dated 2.3.1979 passed by the Additional District Magistrate (Rent Control). Lucknow by which the review petition preferred by the petitioner-tenant has been rejected. It has also been prayed that the order dated 5.11.1985 passed by the Additional District Judge, Lucknow dismissing the revision against the order dated 2.3.1979 be also quashed.

(2.) The brief facts of the case are that the petitioner Mohan Singh was allotted a shop for commercial purposes situated on the main road between fourth and fifth lane on Ashok Marg, Lucknow where he claims to have been carrying on his business for last 28 years and paying the rent regularly to the landlord-respondent No. 4 Sri Kishori Lal Agarwal. On 23.4.1975 respondent No. 3 one Sri Zaki Ali Mirza applied for allotment of the premises in question on the ground that since the said shop is lying locked, hence it should be deemed vacant and be allotted to the applicant Zaki All Mirza. On such application being made, the Rent Controller called for the report of the Rent Control Inspector. The Senior Inspector (Rent Control) is said to have inspected the premises/shop on 21.6.1975 and submitted a report regarding the vacancy of the premises, a copy of this report has been annexed as Annexure-1 to this petition. According to this report, the Inspector made enquiries from one Sri Ashraf Ali son of Sri Fazal Ali whose shop is in the same building and from one Sri Beharl Lal son of Sri Shiv Raj who was also carrying on business in a nearby shop by the name of 'Subhash General Store'. As per report based on the statements made by these witnesses, the shop was lying locked for the last 6 months and the lock was said to be that of the landlord. It was also deposed by these witnesses that the shop was with the petitioner Mohan Singh who started the business in the name and style of 'Singh Vastra Bhandar' but after sometime he Instead of carrying on the business himself, sublet it to others on rent. The Unity Store was closed in 1972. Thereafter one Ram Lochan Gupta was sitting in the shop who after sometime shifted to New Market, Nishatganj and shifted his business there and after Sri Ram Lochan Gupta in 1974, one Sri Yunus Khan reopened the shop and started selling stationery. He also at sometime shifted to New Market, Nishatganj. Thereafter one Ram Singh opened the shop for 2-3 months when 'Nav Jyoti Bhandar' was opened but ultimately, the shop was closed and was lying so for the last six months. The Inspector found the board of 'Nav Jyoti Bhandar' hanging on the shop. The inspector on the basis of the aforesaid facts and the enquiries made by him. suggested that the shop can be declared to be vacant. The statements of Ashraf Ali and Behari Lal have also been annexed as Annexures-2 and 3 to the writ petition. The report was considered by the Rent Controller who declared the vacancy on 30.6.1975. After the aforesaid declaration of vacancy, the application of Sri Z. A. Mirza was considered by the Rent Controller after giving notice to the landlord. The landlord filed no objections and. therefore, a presumption was drawn by the Rent Controller that he has no objection if the shop is allotted to the sole applicant. The applicant prayed for allotment on the ground that he is an employee of Sales Tax Department and he is going to retire very shortly as he was was on extension itself. He being desirous to open a shop to supplement his meagre pension that he is expecting to receive. On the consideration of aforesaid facts and circumstances and there being no objection in writing from the landlord, the Rent Controller vide his order dated 3.12.1975 allotted the shop in favour of respondent No. 3. Being aggrieved by the aforesaid allotment, the present petitioner Mohan Singh filed the review petition praying for cancellation of allotment order. It was averred in the said application that he has been occupying the shop for last 20 years and paying the rent and he never vacated the same and permitted any one else to do business in the said shop. In support of his application, he filed affidavits of one Raghunath Prasad, Kedar Nath, a rent receipt also from July to November, 1975. The facts stated in the said application were though not controverted by the allottee Z. A. Mirza but he submitted that now the petitioner Mohan Singh has again sublet the shop to one Sri Ashok Kumar and Dashrath Nandan Jaiswal for opening a wine shop. These facts were not controverted by Sri Mohan Singh. The said application was heard by the Rent Controller. The main ground of challenge for allotment of the shop and declaration of vacancy was that the tenant Mohan Singh was not given an opportunity and was not heard. The learned Rent Controller allowed the application of the petitioner vide his order dated 2.7.1976 on the ground that Mohan Singh was since not heard, therefore, the order of allotment is liable to be cancelled. While passing the said order, the Rent Controller also passed the following order :

(3.) I have heard learned counsel for the parties and have perused the various judgments and documents placed on record.