Jeet Singh vs Rent Control And Eviction Officer
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      HIGH COURT OF UTTARAKHAND
             AT NAINITAL
      Writ Petition (M/S) No. 1844 of 2010

Jeet Singh                                       ... Petitioner
                               Vs.
Rent Control and Eviction Officer
and others                                       ... Respondents


Advocate:    Mr. Rajendra Arya, Advocate, holding brief of Mr. Neeraj
             Garg, Advocate, for the petitioner
             Mr. Yogesh Chandra Tiwari, Standing Counsel, for the State.
             Mr. V.K. Kohli, Senior Advocate, assisted by Mr. Kanti Ram
             Sharma, Advocate, for the respondents.


Hon'ble Sharad Kumar Sharma, J.

The U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act of 1972, was published and enforced by the Official Gazette dated 01.07.1976. The landlord and tenant, though it has been respectively defined under Section 3 of the Act, but that aspect pertaining to the relationship of the 'landlord' and 'tenant', since not being in controversy, this Court is not required to venture into it.

2. The only question, which engages consideration and as it has been argued too, is that as to whether there exists a vacancy over the tenement in question, which is the shop in dispute to attract the provisions contained under Section 12 for declaration of vacancy. If Section 12 of the Act, in itself is taken into consideration in its sub Section (5), it deals with the circumstances under which it would be treated, that a vacancy has occurred when the tenant has substantially removed his effects or has permitted the tenement to be occupied by some other

person, who is not the member of the family and other aspect which has been provided therein.

3. The facts of the case herein are and as pleaded too by the petitioner, while putting a challenge to the order dated 29.09.2010, as it was passed by the Rent Control Eviction Officer whereby the Application and it was preferred under Section 12 for declaration of vacancy, registered as Rent Control Case No. 26 of 2001 was rejected and consequently there was a refusal by the Rent Control Eviction Officer to declare the tenement as to be vacant. In fact, there happens to be a property lying in Municipal Area of District Dehradun, bearing Municipal No. 60 Ghoshi Gali, Dehradun, which apparently is owned by the present petitioner, who is the landlord.

4. Since the construction of the said building being prior to 1972, the provisions of the same would be applicable to the tenement in question. The landlords' case is, that initially one Mr. Abul Khaliq was inducted as a tenant on a rent, on month to month basis, carrying a rent of Rs. @ 50/- per month and was running a business under the name and style of M/s Style Tailors.

5. It was contended in the release application and in the writ petition too, that when Abdul Khaliq has left the disputed shop without giving any intimation to the landlord and permitting the same to be occupied by respondent No. 2, who is his brother without there being any written consent of the landlord. He contends that as soon as the possession is given to a person other than the relative, as defined under the Act, there would be a

deeming vacancy under sub Clause (b) of sub Section (1) of Section 12 of the Act.

6. The landlord has further contended in his application under Section 12 of the Act, that Abdul Khaliq continued to pay the rent upto 31.12.1980 and thereafter ever since 01.01.1981, he didn't deposited the rent and consequently, he had issued a notice on 02.12.1997 to Abdul Khaliq, thereby demanding the rent and consequently, terminating the tenancy. It is rather the petitioner's own case, that said notice as it was issued on 02.12.1997 was received by respondent No. 2, who submitted his reply to it controverting its contends by filing the same on 07.01.1998.

7. It is contended by the petitioner landlord, that it was based upon the said reply which has been submitted by respondent No. 2 i.e. the tenant, it is on that basis, that the respondent No. 2 has claimed to be occupying the tenement in question, which the landlord contends, that respondent No. 2 was illegally occupying the same without any right of vested tenancy and hence it would be a case of deemed vacancy under Section 12, as the accommodation was never let out to the respondent No. 2, as per Act No. 13 of 1972, coupled with the fact that permission of being occupied by him, as it was alleged to be given by Abdul Khaliq was in contravention to sub Clause (b) of Sub Section (1) of the Section 12 of the Act.

8. So far as the respondent No. 3 is concerned, he was a prospective allottee, who is said to have filed an application for allotment on 27.11.2000 for allotment of

the shop, owing to the fact that the same was contended by him to have fallen vacant as the tenant Abdul Khaliq was said to have vacated the premises and thus the same may be allotted to him.

9. At this stage, let us deal with the issue which was initially addressed by the learned counsel for the petitioner, who was attempting to get the writ petition adjourned on the ground that respondent No. 3 has not been served with the notices.

10. There are two aspects. The writ petition relates to Section 12 which entails consideration of the issue of declaration of vacancy and not with regard to the allotment as contemplated under Section 16 of Act No. 13 of 1972 as the two provisions are exclusively independent to one another, coupled with the fact, that upon a declaration of vacancy, the prospective allottee has got no right as such to question the aspect of declaration of vacancy which was an issue exclusively inter se between the petitioner and respondent No. 2. Since respondent No. 3, being a prospective allottee, his presence in the writ petition for its effective adjudication is not required. Though despite the fact that the order sheet reflects that as per the office report dated 25.07.2023, when the notices were issued to respondent No. 3, by an order dated 04.03.2020, steps were taken and there is an office report, that neither the undelivered envelop has been received back nor online postal tracking report is available. In that eventuality, owing to the said office report, it would be deemed that as per the Rules of the Court that respondent No. 3 would be deemed to have

been served with the notice, hence his absence in the proceedings will not create any impediment as such to decide the proceedings of the present writ petition.

11. The only question which is now required to be considered, is as to whether there actually occurred a vacancy on account of the alleged philosophy of the erstwhile tenant Abdul Khaliq, having vacated the said premises i.e. the tenanted shop. The said aspect itself is belied from the records, owing to the fact of notice issued by the landlord on 02.12.1997 for terminating the tenancy of Abdul Khaliq, due to the default committed by him in remittance of rent. Apart from it, the documents which were filed by the landlord, in support of the writ petition itself shows that the occupancy of the tenement of respondent No. 2 still continues to be recorded in the Assessment Register of the Nagar Palika, the certified copy of which was placed on record, where the respondent No. 2 i.e. Mohd. Yaqoob was shown to be occupying the premises ever since 1993, till the last assessment which has been placed on record by the present petitioner being that of 1999 to 2006.

12. The Assessment Register of Nagar Palika, since being a public document, it would be valid proof of occupancy of the premises and would be a document to be read in evidence for proof of a case, and since, it persisted for more than 12 years, it would be deemed that respondent No. 2 continued to occupy the premises and he has not removed his effects, as contemplated under sub Clause

(a) sub Section (1) of Section 12 of the Act No. 13 of 1972.

13. Since as per the documents which has been placed on record by the petitioner himself and the observations which had been made by the Rent Control Eviction Officer, deriving its analogy from the judgment of the Hon'ble Allahabad High Court dated 24.04.2009 which provided with the modalities to be adopted for determining the aspect of declaration of vacancy and its actual creation was dealt by the Rent Control Eviction Officer, wherein the Rent Control Eviction Officer has observed, that initially the ownership of the property in dispute was vested with one Smt. Jagir Kaur, wife of Mr. Sardar Gurcharan Singh, who was the resident of the aforesaid address and as per the agreement of 24.10.1985, a tenancy was created over the tenement @ Rs. 150/- per month and the petitioner continued to occupy the premises, which once again stands fortified by the assessment coupled with the document as it has been placed on record by way of a paper No. 3/24 to 3/28, as filed by respondent No. 2, the tenant is in occupation i.e. the report pertaining to the period from 1986 onwards till 1990.

14. The Court, after considering the impact of the agreement of 24.10.1985, has observed that since the respondent No. 2 had been able to establish the fact of occupying the premises for last more than 13 years and he was shown to be conducting the business of tailoring, the Rent Control Eviction Officer has rightly come to the conclusion, that there was no vacancy as such, or the vacancy under the deeming clause or under sub Clause

(b) of Sub Section (1) of Section 12 on the ground, that the principal tenant has inducted respondent No. 2 as a

tenant, which was not a fact established by adducing evidence, by the petitioner landlord on record, in the proceedings before the Rent Control Eviction Officer, besides to the contrary that the agreement of 24.10.1985 in itself dispels the argument extended by the learned for the petitioner landlord, about the occupancy of tenement in question by respondent No. 2, which stands established by the first assessment which was placed on record which was showing that respondent No. 2 was in possession of the shop in the assessment of 1973 to 1979 thus benefit of the impact of Section 14 too would follow.

15. Though, the rent receipt exclusively in itself cannot be a valid basis to determine the factum of possession, but once the rent receipts are supported by the rent agreement executed by the predecessor of the present petitioner i.e. late Shri Jagir Kaur, who had executed an agreement on 24.10.1985, coupled with the assessment made by the Nagar Palika, it established the proof, that the respondent No. 2 was and is in possession of the shop in question and that too, stands admitted by the landlord on record because of the fact, that he himself has issued notice in 1997 which was admittedly given to the respondent No. 2, who had replied, that the same was for vacating the premises, which yet again would be an additional proof to show, that respondent No. 2 continues to occupy the premises in the capacity of a tenant, the relationship of which was not disputed at any stage of the proceedings by the petitioner in his pleadings.

16. Thus the analogy drawn by the Court, while passing the impugned order, rejecting the application under

Section 12 and thereby declining to declare the vacancy of the tenement doesn't suffer from any apparent legal error to call for any interference, in the exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. Thus the writ petition fails and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 02.08.2023 Mahinder/