Hazi Naseem Ahmad Vs. R.C.E.O./A.D.M. (C.S.) and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - 10. in view of the above discussion, i find sufficient force in the argument of the learned counsel for the petitioner that initiation of the proceedings at this distance of time by the contesting respondents is clearly beyond a reasonable period of time and is barred.prakash krishna, j.1. the present writ petition arises out of the proceedings initiated against the petitioner under section 16 (1)(a) of the u.p. act no. 13 of 1972. the subject-matter of the dispute is one shop situate on ground floor of house no. b-16/94, mohalla pandey haveli, varanasi. shamim azaz, the respondent no. 2 herein, filed an application for allotment on july 19, 2006 of the said accommodation. a report was called for from the rent control inspector who submitted its report dated 20th of september, 2006. the respondent nos. 3 to 8, the landlord, applied for the release of the disputed shop. the parties led evidence in support of their respective cases. the authority concerned by the order dated 15th of march, 2007 declared the accommodation as vacant. thereafter, an application to review and recall the said order was filed by the present petitioner which has been dismissed by the impugned order dated 6.8.2007. by means of the present petition, the petitioner has sought the quashing of the orders dated 6th of august, 2007 and 15th of march, 2007.2. the main point urged by the learned counsel for the petitioner is that even if it is taken that the possession of the petitioner of the disputed accommodation is unauthorised one, the vacancy cannot be declared at the instance of the applicant for allotment after expiry of period of 12 years from the date of commencement of the unauthorised occupation. he submits that one feroz was the earlier tenant who vacated it on 1st of september, 1988 and since then, the petitioner is in its occupation though without an allotment order. the learned counsel for the petitioner submits that since the petitioner according to the own showing of the landlord is an unauthorised occupant since 1st of september, 1988, the proceedings having been initiated in the month of july, 2006, i.e., beyond 12 years, is barred by time. the rent control and eviction officer in the impugned order has also found that the petitioner is in unauthorised occupation of the disputed shop since 1st of september, 1988 without there being any allotment order in his favour and as such, there is a deemed vacancy and declared the property in dispute as vacant by the order dated 15th of march, 2007. the learned counsel for the petitioner submits that in view of the facts as found by the authority concerned, the present proceedings are barred by time.3. the learned counsel for the contesting respondent, on the other hand, submits that in view of section 13 of the u.p. act no. 13 of 1972, if a person is in occupation of a building in question without an allotment or release order, he would be treated as unauthorised occupant. no person is permitted to occupy the accommodation except under an allotment or release order, there being no allotment in favour of the petitioner, the authority concerned, has rightly declared the disputed accommodation as vacant. reliance was placed by him on a decision of this court in shambhu alias shambhu dayal v. rent control and eviction officer and ors. 2007 (1) arc 810.4. considered the respective submissions of the learned counsel for the parties and perused the record.5. the facts of the case are not much in dispute. it is common case of the parties that the petitioner is in occupation of the disputed shop w.e.f. september, 1988. the proceedings having been initiated in the year 2006 for declaration of vacancy is barred by period of limitation or not, is the only question mooted herein.6. on a plain reading of the relevant provision of the act, it does appear that no period of limitation for declaration of a vacancy actually or deemed has been prescribed under the act. the question, then, arises if no period of limitation has been prescribed, an application for declaration of vacancy can be filed within a reasonable period. it has been held in abdul khaliq v. additional district magistrate, varanasi 2007 (2) arc 629, that with respect to the proceedings under section 12 of the act, a period of 12 years should be taken as reasonable time for initiating the proceedings under the statute from the date of cause of action arises. in this case, the court has relied upon a decision of the apex court in the case of mansha ram v. s. p. pathak and ors. : air 1983 sc 1239. in anil kumar dixit v. smt. maya tripathi and anr. : 2006 (1) arc 377 : 2006 (1) awc 649, the above view has been reiterated.7. the aforesaid pronouncements have been constantly followed by this court as is apparent from sarla devi v. shailesh kumar and ors. 2008 (3) arc 632 and jamuna devi v. district judge, kanpur nagar and ors. 2009 (1) arc 266. there is, thus, no reason for me to take a contrary view.8. in shambhu alias shambhu dayal (supra) it has been held by this court that a conjoint reading of sections 11 and 13 of the u.p. act no. 13 of 1972 prohibits the letting without order of allotment and it can safely be concluded that the act restrains the landlord for giving the accommodation on rent without a valid order or allotment and none can occupy without issuance of valid allotment order in his favour.9. it appears that the attention of the court was not drawn to the earlier decision of this court in the case of anil kumar dixit v. smt. maya tripathi (supra). nor the attention of the court was invited towards the judgment of the apex court in the case of mansha ram v. s. p. pathak (supra). therefore, the decision laid down therein should be read and understood in the context of the fact of that case.10. in view of the above discussion, i find sufficient force in the argument of the learned counsel for the petitioner that initiation of the proceedings at this distance of time by the contesting respondents is clearly beyond a reasonable period of time and is barred.11. before parting with the case, it may be noted that the learned counsel for the petitioner accepted the suggestion of the court to enhance the monthly rent. there are numerous pronouncements of this court including that of the apex court in d. c. oswal v. v. k. subbiah and ors. : air 1992 sc 184, that while granting relief to a tenant relieving him from eviction, the court can enhance the rent. taking into consideration the price escalation of immovable properties, it is, therefore, provided that henceforth w.e.f. may, 2009, the petitioner would be liable to pay monthly rent at rs. 1,900 to the contesting respondents/landlords.12. with the aforesaid direction, the writ petition succeeds and is allowed. the impugned orders dated 15th of march, 2007 and 6th of august, 2008 are hereby quashed. no order as to costs.