DATTATRAYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This reference by the learned Single Judge of this Court arises because in his view, the interpretation put on the word site in Notification No. 659-66-II dt. 6-2-1952 in (M. Sen Sharma v. Ambika Prasad Sharma) 1983 Mh.L.J. 415 requires reconsideration as the learned Single Judge in that case took the view that the site above the ground floor must be deemed as a vacant site for the purposes of the notification.

(2.) Facts, so far as they are material are these---One Chitnis purchased a single storeyed house on 30th May, 1950 and after making some changes, he sold it on 23rd April, 1962 to the petitioner. Sometime after 1967, the petitioner added first floor to this house and gave it for residential purposes to two persons. The House Allotment Officer, Nagpur upon an anonymous complaint, issued a notice to the petitioner, in reply to which the petitioner contended, firstly, that the newly constructed first floor was exempted from the provisions of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (The Rent Control Order for short) and secondly, that the occupants were not tenants but were merely licensees. The second respondent rejected both the contentions and issued notices to the petitioner and newly inducted persons to show cause why they should not be held liable for prosecution under Clause 28 of the Rent Control Order and the occupants should not be evicted. The second respondent after considering the reply, rejected the contentions and the petitioner, therefore, filed the present petition.

(3.) It was not disputed before us that the new construction was made by the petitioner after 1st January, 1951 on a portion open to the sky. Notification No. 359-66-II dated 6th February, 1952 reads as follows :