Judgment:
Poonam Srivastav, J.
1. In the instant writ petition, the order dated 29.5.2009, releasing the house in dispute passed by the Additional District Judge, Court No. 13, Kanpur Nagar in Rent Revision No. 38 of 2008, Kamla Devi v. Munni Devi and Anr. as well as order dated 5.2.2008 passed by the Rent Control and Eviction Officer/Additional City Magistrate/IIIrd Kanpur Nagar in Case No. 32 of 2007, Anil Kumar v. Kamla Devi, are impugned. The disputed house No. 107/152A, Jawahar Nagar, Kanpur which consists of two rooms, half courtyard and chabutara and common latrine, bath room. This has been declared vacant by the Rent Control and Eviction Officer and thereafter the said house stands released in favour of the landlord. The rate of rent is Rs. 18.75 per month.
2. At the time when the writ petition was moved as a fresh case initially an interim order dated 13.7.2009 was passed that since the facts involved are not in dispute and, therefore, final disposal/final argument of the writ petition shall be advanced at the time of admission itself.
3. Sri R. P. Shastri and Sri Arun Kumar Shukla, advocates appearing on behalf of the petitioner as well as Sri A. N. Sinha and Sri Prateek Sinha, advocates appearing for the contesting respondent-landlord have submitted their written arguments. As agreed between the parties, the writ petition is heard finally.
4. The undisputed facts are that on 19.12.2002 Lal Bahadur Nigam died leaving his wife Kamla Devi and three sons Ajay Kumar, Vijay Kumar and Anand Kumar who steps in the shoes of their father and became joint tenant. Lal Bahadur Nigam constructed his own house No. 294C, Block Sujatganj, Kanpur Nagar and Vijay Kumar also constructed another house No. 294/33E Block Shyam Nagar, Kanpur, thereby the landlord's claim that there is an existence of vacancy under Section 13 (2) of the U.P. Act No. 13 of 1972 (hereinafter referred as the Act).
5. The first challenge in respect of the judgment under challenge relates to the question of limitation. In fact an application was moved by one Anil Kumar, respondent No. 2 on 4.5.2007 for allotment since a vacancy has come in existence. Thus, the rent control machinery started. The Rent Control and Eviction Officer declared vacancy after getting the accommodation inspected by the Rent Control Inspector and thereafter the landlord filed a release application which has been allowed. The respondent No. 2 is a prospective allottee and, therefore, he has no right to challenge the release application which stands allowed by the court below. However, after filing of allotment application, the respondent No. 2 has not challenged the order of release. The tenant-petitioner claims it to be a manipulated step and therefore, the entire procedure of declaration of vacancy is liable to be nullified. After the allotment application was moved, the Rent Control Inspector visited the premises and submitted his report on 6.6.2007. Vacancy was declared vide order dated 5.2.2008, Annexure-2 to the writ petition, on the ground that late Lal Bahadur Nigam constructed a house within the municipal limit 294-C Block Sujatganj, Kanpur and also that Vijay Kumar son of Kamla Devi and Lal Bahadur Nigam has also constructed house No. 294/33E Block Shyam Nagar, Kanpur, consequently vacancy was declared. A release application was filed which was allowed and challenged under Section 18 of the Act. The sale deed paper No. 21Ga was brought on record before the revisional court and a conclusion was arrived at that the name of late Lal Bahadur Nigam was recorded in Nagar Mahapalika, Kanpur Nagar, Plot No. 294 Block C Scheme 2, Sujatganj, Kanpur having an area 200 square yards or 167.22 square meter vide lease deed executed on 30.5.1970 for a period of 99 years. Kanpur Development Authority sanctioned the plan on 24.11.1976 and thereafter constructions were made. The tenants-petitioner claimed that they have sold the said house vide registered sale deed on 28.2.2005. Extract of panchshala for the period 1987 to 1992 Paper Nos. 43 and 44 was also brought on record to substantiate that the name of Lal Bahadur Nigam was struck down from the Nagar Mahapalika records and name of Kamla Devi was substituted on 9.3.2005. Besides, sale deed in favour of Vijay Kumar son of Lal Bahadur Nigam and Kamla Devi was brought on record alongwith house tax report.
6. Learned Counsel for the petitioner has raised his objection on the question of limitation that though the house was constructed in the year 1976 but no objection whatsoever was raised by the landlord till 2007 and no release application was ever moved and, therefore, the release application stands barred by time. The declaration of vacancy after lapse of 12 years is illegal and liable to be quashed.
7. Sri A. N. Sinha has disputed this fact firstly on the ground that there is no period of limitation prescribed under the Act and also that the landlord had no knowledge regarding the fact that the tenant has acquired an accommodation after the advent of the Act in a vacant stage within the municipal limit, therefore, assuming that there is lapse of long gap in raising this objection it would make no difference. If the period of limitation is computed from the date of knowledge, the objection of the petitioner is meaningless. Vacancy was declared on the basis of allotment application and thereafter it is always the first opportunity of the landlord to move release application under Section 16 (b) of the Act. In the circumstances, right of getting the vacant house released in favour of the landlord, specially when amenities is shared by the landlord and tenant, this objection has no relevance.
8. After giving careful consideration on the question of limitation, I agree with the contention of the landlord's counsel that Lal Bahadur Nigam died in the year 2002 and as admitted in paragraph 6 of the Annexure-7 of the writ petition, which is rejoinder-affidavit of the landlady, where it has been stated and brought to the notice of the Court that at the time of death of Lal Bahadur Nigam, his wife and sons were living in the disputed house and, therefore, this can safely be concluded that the landlady came to know in the year 2005 and this finding of fact recorded by the revisional court cannot be interfered under Article 226 of the Constitution of India. Besides, reliance has been placed on three decisions namely Trust Asha Mai Dharmshala Rishikesh v. Additional District Judge (III), Dehradun and Ors. 1991 (1) ARC 563 : 1991 (1) AWC 720; Ahmad Bux v. 1st Additional District Judge, Muzaffarnagar and Ors. 1989 (2) ARC 5 : 1989 (1) AWC 288 and Smt. Shashi Govil v. District Judge, Meerut and Ors. 1989 (1) ARC 108 : 1989 AWC 123. In all these decisions it is laid down that on the happening of an event contemplated by Section 12 of the Act, the property would be deemed to be vacant or the tenant would be deemed to have ceased to occupy the building. On a bare reading of Section 12 of the Act, it cannot be said that the relevant date for determining the question of deemed vacancy is the date on which an application for allotment is made or a release application has been filed. If that be so, the very purpose of the Act would be completely defeated. While discarding the argument on behalf of the tenant, reliance was placed on decision of Surendra Prakash Goel v. 1st Additional District Judge, Muzaffarnagar and Ors. 1987 (1) ARC 276 : 1987 (2) AWC 646. The Apex Court had also ruled in the case of Mansaram v. S. P. Pathak and Ors. 1984 ARC 17. Paragraph 12 of the said judgment is quoted below:
What is stated hereinbefore is sufficient to quash and set aside the order of the House Allotment Officer. However, there is one more aspect of the matter which we cannot overlook. The appellant entered the premises in 1954. There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the premises in contravention of Clause 22 (2). Till Basantrai Sharma died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contravention of Clause 22. Basantrai Sharma in his life-time tried to obtain possession of the premises from the appellant alleging grounds available to him under the Rent Control Order other than unauthorised entry. This would permit an inference that Basantrai Sharma accepted the appellant as his tenant and his tenancy did not suffer from any infirmity. After Basantrai Sharma died, her successor in interest one Smt. Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr. S. P. Pathak, a total stranger has come forward to complain about the unauthorised entry of the appellant in the premises. The unauthorised entry according to the appellant was in the year 1954. Appellant retired in 1967. Basantrai Sharma was alive in 1967. If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing. Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereafter. Could he be at this distance of time, thrown out on ground that his initial entry was unauthorised. To slightly differently formulate the proposition, could the initial unauthorised entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of Clause 22 (2). Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in part delicto could turn the tables against the person who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal and Anr. v. State of U.P. and Ors. : (1975) 1 SCR 575 wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by Section 7 (2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this Court declined to interfere with that order. No doubt it must be confessed that Section 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to Clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercises of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha and Ors. : (1970) 1 SCR 335. In that case Commissioner exercised suo motu revisional jurisdiction under Section 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one year after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor in interest of the deceased landlord, and evicting the appellant 22 years after his entry . and 9 years after his retirement on the short ground that his entry in the year 1954 was on contravention of Clause 22 (2).
Assuming and accepting that the house was acquired by late Lal Bahadur Nigam in the year 1976 in a vacant stage and thereafter was sold in the year 2005, it is of no help to the petitioner. The tenant did acquire an accommodation in a vacant condition within the municipal limits after the advent of the Act, he chose not to put it for his own use and subsequently preferred to sell it off and continued to occupy the tenanted premises. This also is sufficient to hold that a vacancy has come in existence. The learned Counsel for the petitioner has placed reliance on two decisions, Rajeev Maurya v. Rent Control and Eviction Officer/Additional District Magistrate, (City) Delegated Authorities Meerut and Ors. 2008 (3) ARC 359 and Orjun Majumdar v. R.C. and E.O.-1, Allahabad and Ors. 2008 (2) ARC 773, which are also of no help to the petitioner.
9. Similar view was expressed by this Court in the case of Rajdhari v. Smt. Ranjana Gupta and Anr. 2006 (1) ARC 878 : 2006 (2) AWC 1964, where 21 years time was said to be barred by limitation whereas in the instant case there is finding of fact that the knowledge was acquired by the landlord only in the year 2005 and, therefore, period of limitation would start to run from that date. Assuming on the basis of the decision of this Court relied above by the petitioner, it is of no consequence since the period of 12 years was counted by the court below from 2005 onwards. Besides, declaration of vacancy was admittedly in the year 2007, right of landlord to get the house released under Section 16 (b) of the Act cannot be taken away.
10. In view of the decisions as well as findings recorded by the Rent Control and Eviction Officer allowing the release application, I do not see any merit in the instant case specially one of the son acquired another house and the fact that the landlady is not living with that son is of no consequence and this alone cannot deprive the landlady to use her own house. I cannot lose sight of the fact that the rate of rent was Rs. 18.75 per month and possibly the tenant preferred to sell the house which he had acquired in a vacant state after commencement of the Act. I am also conscious of the fact that the landlady is sharing amenities such as toilet, courtyard, etc. with the tenant and, therefore, she is unable to have exclusive possession even to the basic necessities of the life in spite of purchase of house for her own use and constrained to continue living in a degrading manner and without any privacy.
11. In view of the findings recorded above, there is no merit in the writ petition. The judgment and orders of the courts below are confirmed and the writ petition is dismissed.