Dealing with the second ground first, this Court
is absolutely no doubt in its parameter that Rule 8 of U.P.
Act No. 13 of 1972 have been followed in the present
matter. The inspection report dated 12.01.1993 (Annexure
No. 9 to the writ petition) clearly indicates that it was
carried out not only in the presence of the landlord and the
tenant but also in the presence of other persons, whose
names have been mentioned in the inspection report as
well as in the body of this judgment, who have categorically
stated that the petitioner has locked the premises/shop
since very long time and he is doing his meat business from
the adjacent shop. Therefore, in view of the above fact it is
apparently clear that the compliance of Rule 8 of the U.P.
Act No. 13 of 1972 has been complied with.
9.
Regarding the first arguments, this Court is of
the opinion that once the premises in question was locked
by the tenant himself and it was not being brought to use
as revealed from the inspection report, then such a person
i.e landlord has substantially removed his effect from the
premises.
That being a situation there is absolutely no
anomaly in the orders passed by the courts below.
Accordingly the writ petition is dismissed.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 316 of 2009
Sri Ram Pal Singh
Vs
Sri Moti Lal
Hon’ble Sudhanshu Dhulia, J. (Oral)
Citation;AIR 2014(NOC)531 (UTR)
This is a tenant petition challenging the order
dated 18.01.1993 and 22.011993 passed by the Rent
Control & Eviction Officer, Dehradun under Section 12 of
the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Rules, 1972 (hereinafter referred to U.P. Act No. 13
of 1972) whereby the shop in question has been declared
vacant and thereafter released vide order dated 22.01.1993
in favour of landlord/respondent. He also challenges the
order dated 17.02.2009 passed by the Additional District
Judge/F.T.C.-2, Dehradun under Section 18 of the U.P. Act
No. 13 of 1972 by which the court concerned dismissed the
revision of the petitioner/tenant.
2.
The facts of this case are that there is a meat
shop No. 704-B, Dakara Cantt. District Dehradun, which
was given on rent to the petitioner by the erstwhile owner
of the premises. The said property was purchased by one
Motilal (present respondent/landlord) in the year 1987,
who was then working as Sepoy, having the trade of
Washerman, in Indo-Tibetan Border Police.
The shop
which was given to the tenant, according to him, was not
being
used
and
was
kept
under
lock
by
the
petitioner/tenant since a long time. He was about to retire
2
from his service and, therefore, he moved an application
under Section 12 of U.P. Act No. 13 of 1972 for declaring
vacancy of the shop in question and release the same in his
favour before the Rent Control and Eviction Officer,
Dehradun, as he wanted to open a dry cleaning shop in the
said premises. He further submitted that he was in bona
fide need of the said shop in question.
3.
The concerned authority made an inspection of
the building under Rule 8 of U.P. Act No. 13 of 1972. The
inspection report is on record.
It has come in the
inspection report dated 12.01.1993 of the Rent Control and
Eviction Officer that apart from the landlord and the
tenant, there were many other persons in the locality, in
whose presence the inspection was made by him.
The
names of the persons who were present at the time of
inspection are as under:-
1.
2.
3.
4.
5.
6.
7.
4.
Sri Rampal Singh, S/o Late Sri Moti Ram
704-C, Dakara, Dehradun
(tenant)
Sri Moti Lal, S/o Sri Kishan Lal
704-D, Dakara, Dehradun
(landlord)
Sri Rajkumar, S/o Late Sri Moti Ram,
704-C, Dakara, Dehradun
Smt. Bharti Devi, W/o Sri Moti Lal,
704-D, Dakara, Dehradun
Sri Vishnu Prasad S/o Sri Jagdish Prasad
661, Dakara Bazar, Dehradun
Sri Shyam Singh S/o Jhute Singh
126 Dakara, Dehradun
Sri Lalit Singh, S/o Sri P.L. Dutta
117, Dakara, Dehradun.
After completing the inquiry he came to the
conclusion that the Shop No. 704-B, Dakara, Dehradun,
which was given on rent to the petitioner, is locked by him
since a long time.
Apart from this he himself has
3
constructed two shops adjacent to that shop, in which,
according to him his brother is running a general store and
in another he runs the butcher shop. It has also come on
record that there was some dispute between the petitioner-
tenant and the respondent-landlord of the shop in question
and the tenant agreed to vacate the shop, if he has given
`4,000/-. However, the petitioner denies that he has made
any such demand.
5.
Be that as it may on the basis of the inspection
report, the Rent Control and Eviction Officer has passed a
detailed order dated 18.01.1993 stating therein that since
the petitioner has himself locked the premises and it is not
in use, therefore, it has been declared vacant and landlord
requires it for his bona fide need and subsequently, he
released
the
shop
in
question
in
favour
of
landlord/respondent vide order dated 22.01.1993.
the
Both
these orders were challenged by way of filing revision before
the District Judge, Dehradun, which was dismissed vide
order dated 17.02.2009 and the two orders of the Rent
Control and Eviction Officer were upheld. Against the said
order, the petitioner has preferred the present writ petition.
6.
There
are
two
grounds
of
challenge
the
impugned orders one is that vacancy could not have been
declared as it can be declared only on limited grounds
which has been enumerated under Section 12 of the U.P.
Act No. 13 of 1972 i.e. if the landlord or the tenant of the
building has substantially removed his effects therefrom
and secondly, if he has allowed it to be occupied by any
person who is not a member of his family. Vacancy can be
4
declared only in the above two circumstances for a
commercial establishment or shop.
7.
According to the petitioner none of these grounds
exist in the present matter, and therefore, the declaration
of the vacancy under Section 12 of the U.P. Act No. 13 of
1972 was bad in law. The second limb of argument is that
the mandatory provision provided under Rule 8 of the U.P.
Act No. 13 of 1972 regarding inspection of the building has
not been followed properly in this matter.
Rule 8 of the
said Rules reads as under:-
“8. Ascertainment of vacancy (1) The District
Magistrate,
shall,
before
making
any
order
of
allotment or release in respect of any building which
is alleged to be vacant under Section 12 or to be
otherwise vacant or to be likely to fall vacant, get the
same inspected.
(2)
The inspection of the building, so far possible,
shall be made in the presence of the landlord and the
tenant or any other occupant. The facts mentioned in
the report should wherever practicable, be elicited
from at least two respectable persons in the locality
and the conclusion of the inspection report shall be
pasted on the notice board of the office of the District
Magistrate for the information of the general public,
and an order of allotment may be passed not before
the expiration of three days from the date of such
posting, and if in the mean time any objection is
received, not before the disposal of such objection.
5
(3)
Any objection under sub-rule (2) shall be
decided after consideration of any evidence that the
objector or any other person concerned may adduce.”
8.
Dealing with the second ground first, this Court
is absolutely no doubt in its parameter that Rule 8 of U.P.
Act No. 13 of 1972 have been followed in the present
matter. The inspection report dated 12.01.1993 (Annexure
No. 9 to the writ petition) clearly indicates that it was
carried out not only in the presence of the landlord and the
tenant but also in the presence of other persons, whose
names have been mentioned in the inspection report as
well as in the body of this judgment, who have categorically
stated that the petitioner has locked the premises/shop
since very long time and he is doing his meat business from
the adjacent shop. Therefore, in view of the above fact it is
apparently clear that the compliance of Rule 8 of the U.P.
Act No. 13 of 1972 has been complied with.
9.
Regarding the first arguments, this Court is of
the opinion that once the premises in question was locked
by the tenant himself and it was not being brought to use
as revealed from the inspection report, then such a person
i.e landlord has substantially removed his effect from the
premises.
That being a situation there is absolutely no
anomaly in the orders passed by the courts below.
Accordingly the writ petition is dismissed.
10.
However, the petitioner shall vacate the shop in
question within a period of three months from today i.e. on
or before 01.06.2014 to enable him to get alternate
6
accommodation and handover the peaceful possession of
the same to the respondent-landlord.
(Sudhanshu Dhulia, J.)
26.02.2014
Aswal
No comments:
Post a Comment