Allahabad High Court
Angad Lal Sharma vs Addl. Distt.& Session Judge & ... on 20 November, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 21
Case :- RENT CONTROL No. - 62 of 1992
Petitioner :- Angad Lal Sharma
Respondent :- Addl. Distt.& Session Judge & Others
Counsel for Petitioner :- K.P.Singh,Diwakar Srivastava,J.P. Mathur
Counsel for Respondent :- B.K.Saxena,C.S.C.,Jaspreet Singh
Hon'ble Sibghat Ullah Khan,J.
Heard Shri J.P. Mathur, learned counsel for the petitioner and Shri B.K. Saxena, learned counsel for respondent no.3 Nagar Palika Nawabganj. In respect of the shop in dispute in occupation of the original petitioner, Angad Lal Sharma since deceased and survived by legal representatives, proceedings were initiated under U.P. Public Premises Eviction of Unauthorized Occupants Act, 1972 by respondent no.3, Nagar Palika Nawabganj Distt Barabanki in the form of Case no. 5 of 1989-90 Nagar Palika Nawabganj vs. Angad lal Sharma. Prescribed authority/S.D.O. Nawabganj Barabanki allowed the application and directed eviction of the original petitioner from the shop in dispute bearing no.37 and also directed recovery of damages for use and occupation from 01.02.1974 till 30.6.1975 totalling to Rs.1338.75 and w.e.f. July 1975 till eviction original petitioner was directed to pay Rs.78.25 per month. Against the said order original petitioner filed Civil appeal no. 33 of 1990. Second A.D.J. Barabanki dismissed the appeal on 07.4.1992, hence, this writ petition.
The main case taken up by the original petitioner was that the shop originally belonged to one Ram Prasad from whom the he purchased the same. However, in the sale-deed which was filed as paper no.16-A, it was mentioned that wooden structure (kiosk) was sold. The further case was that the Municipal Board took possession from the petitioner and other shopkeepers and constructed 54 new shops, and gave them on licence to different persons who were original occupants and petitioner being similarly situate had also filed application for grant of similar licence but no such licence was given to him. No order by any authority of Municipal Board was filed showing sanction or grant of licence.
The main argument of the learned counsel for the petitioner is that petitioner had filed an application for summoning the records from the Municipal Board pertaining to allotment but the same was not filed, hence, adverse inference must be drawn against the Municipal Board. In this regard reliance has been placed upon an authority reported in Girdhari Lal Agarwal vs. The Banaras State Bank Ltd. 1992 (10) LCD 207.
As the Nagar Palika outrightly denied that any allotment was either made or sanctioned in favour of petitioner, hence, there was no question of filing any such order. Whenever licence or lease is sanctioned or granted by the Municipal Board it is done through written document. Municipal board like private landlord can not create lease or licence just by delivery of possession or permitting the licencee /lessee to occupy the building. Petitioner himself admitted that neither any lease or licence was executed in his favour nor any sanction was granted.
The other technical points like validity of notice etc were rightly decided by both the courts below against the petitioner. No error in the said findings has been found pointed out.
In the objections filed by the petitioner before the prescribed authority copy of which is annexure-2 to the writ petition, only this much was stated that under agreement possession of the old shop was taken from the petitioner and after new construction he was given the shop in question on Rs.30/- per month. There was no allegation that any written document in that regard was executed or order was passed. As stated earlier Municipal Board or its authorities or employees can not orally allot any of its shops to anyone. As in the reply there was no mention that any allotment order or deed was passed or executed, hence, there was no question of producing any such order or deed by the Nagar Palika.
Accordingly, I do not find least error in the impugned orders. Writ petition is dismissed.
Petitioners are granted six months time to vacate provided that:-
1. Within one month from today petitioners file an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the respondent no.3.
2. For this period of six months, which has been granted to the petitioners to vacate, they are required to pay Rs.15000/-( at the rate of Rs.2500/- per month) as damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the respondent no.3.
In case of default in compliance of any of these conditions petitioners shall be evicted after one month. It is further directed that in case undertaking is not filed or Rs.15000/- are not deposited within one month then petitioners shall be liable to pay damages at the rate of Rs.4000/- per month since after one month till the date of actual vacation.
Similarly, if after filing the aforesaid undertaking and depositing Rs.15000/- the shop in dispute is not vacated within six months then damages for use and occupation shall be payable at the rate of Rs.4000/- per month since after six months till actual vacation.
It is needless to add that this direction is in addition to the right of the respondent no.3 to file contempt petition for violation of undertaking and evict the petitioners under impugned orders.
Order Date :- 20.11.2013
mks
