# Hirdai Narain Misra v. Raj Narain Shukla and another

- **Citation:** (2001) 1 ILRA 374
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hirdai-narain-misra-v-raj-narain-shukla-and-another-39627
- **Pages:** 5

## Text

1All] Hirdai Narain Misra V. Raj Narain Shukla and another
374
gratuity, leave encashment, etc., in
favour of Smt. Shakuntala Devi within a
period of one month from the date of
production of a certified copy of this
judgement and order before respondent
no. 1. It is further directed that the
question
of
appointment
on
compassionate ground of Smt. Shakuntala
Devi under the U.P. Recruitment of
Dependents
of
Government
Servant
(Dying in Harness) Rules 1974 shall also
be considered. It shall, however, be open
to the respondent no. 1 to inquiries about
the means and the financial condition of
Smt. Shakuntala Devi and as to whether
the appointment of Smt. Shakuntala Devi
in necessitated so as to tide over the
financial crisis on account of sudden
death of the bread winner.

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By the Court

1. In this petition the dispute relates to
Premises No. 119/216 E (New No.
119/468) Om Nagar, Darshanpurwa,
Kanpur Nagar (hereinafter referred to as
the 'tenanted house') of which respondent
no. 1 Ram Narain Shukla is the owner-
land lord. The petitioner- Hirdai Narain
Misra, it is an indubitable fact, has been
the tenant of a portion of ground floor of
the said house for the last more than four
decades. It is also an admitted fact that the
petitioner-tenant was allotted on lease
house no. 14-L/2 Daboli, Kanpur Nagar
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
375
(hereinafter called as 'Daboli House') by
the Kanpur Development Authority. The
landlord
moved
an
application
on
23.4.1999 before the Rent Control and
Eviction
Officer/Additional
City
Magistrate-VI Kanpur Nagar for releasing
the tenanted accommodation as a 'deemed
vacancy' has arisen on account of
acquisition of Daboli House within the
municipal limits of Kanpur Nagar, in a
vacant state by the tenant-petitioner. After
obtaining the report of the Rent Control
Inspector dated 14.,6.1999, a vacancy in
respect of the tenanted accommodation
was declared by order dated 29.5.2000, a
copy of which is Annexure-5 to the
petition. The application of land lord for
release was fixed for hearing on 8.6.2000.
On that date the petitioner moved an
application for recalling the order of
vacancy dated 29.5.2000, on which, it is
alleged, notice was directed to be issued
to the land lord for 4.7.2000. An order of
release was passed in favourj of the land
lord respondent no. 1 on 8.6.2000 itself
and Form-C was issued for eviction of the
petitioner. It is alleged that the petitioner
moved an application dated 12.6.2000 to
recall the order of vacancy and release but
the application was not entertained.

2. This writ petition was filed in
Summer Vacations and was taken up on
22.6.2000. Sri A.N. Shukla appeared on
behalf of the land lord. :Parties were
directed
to
exchange
counter
and
rejoinder affidavits. It was further directed
that the petitioner would not be dispossessed till 31st August, 2000. This
order has been extended from time to
time.

3. Counter and Rejoinder affidavits
have been exchanged.

4. Heard Sri Rakesh Bahadur
learned counsel for the tenant petitioner as
well as S/Sri A.N. Sinha and Chhotey Lal
Kureel appearing on behalf of land lord at
considerable length.

5. The moot point for consideration
and determination in the present writ
petition
is
whether
on
account
of
acquisition of Daboli House by the
petitioner, a deemed vacancy under
Section 12 (3) of U.P. Urban Buildings
(Regularization of letting, Rent and
Eviction) Act, 1972 ( Act No. XIII of
1972) (hereinafter referred to as 'the Act')
has arisen in view of the assertions made
by the parties.

The condition for the applicability of
sub-section (3) of Section 12 of the Act
dealing with the deemed vacancy are-

(i) There is a residential building let out
to the tenant;

(ii) The tenant or any member of his
family-
(a) builds
(b) otherwise acquires in a vacant
state, or
(c) gets vacated
 a building which is -
(i) residential and
(ii) is
situated
in
the
same
city,
municipality, notified area or town area in
which the building under tenancy is
situated.

6. It is undisputed fact that the
Kanpur Development Authority allotted
Daboli House on lease in favour of the
petitioner and his same came to be
recorded in the Municipal Assessment
Register for the years 1987-92 as owner
of the said house with effect from 1st
1All] Hirdai Narain Misra V. Raj Narain Shukla and another
376
October, 1990. The case of the petitioner
is that though the said house was allotted
in his favour in the year 1982, possession
was not delivered to him thereon. It is
further averred that a suit no. 1635 of
1994 was filed in respect of the said house
by one R.N. Dwivedi who claimed
himself to be in possession of the said
house and later on handed over the
possession to one Shiv Singh Rathore.
The petitioner further claimed that on
account of compelling circumstances due
to paucity of funds, the petitioner sold the
house in question in the year 1998j to one
Anurag Sharma. The emphatic assertion
of the petitioner is that the possession
over the Daboli House was never
delivered to or obtained by him and
consequently the eventuality of deemed
vacancy as contemplated under section 12
(3) of the Act did not arise and since there
was no vacancy deemed or actual the
tenanted house could not be released in
favour of the land lord. On behalf of the
land lord, it is maintained that the
petitioner did acquire 'Daboli House and
had obtained its possession and, therefore,
Rent Control and Eviction Officer has
rightly declared the vacancy and released
the accommodation.

7. Sri Rakesh Bahadur, learned
counsel for the petitioner counsel for the
urged that the recall application which
was moved by the petitioner on 8.6.2000
was directed to be put up on 4.7.2000 as
would be evident from the copy of the
order which is Annexure-7j to the
petition. It was urged that when once the
notice to other party had been issued for
4.7,.2000 on the application of recalled
dated 8.6.2000, there appeared to be no
earthly reason for passing the order of
release on the same day. Be that as it may
the question is whether on account j of the
admitted position that the petitioner has
acquired by purchase the Daboli house
from the Kanpur Development Authority,
a deemed vacancy has arisen or not. The
purchase of Daboli House and its
subsequent sale by the petitioner in favour
of Anurag Sharma in the year 1998 is not
in dispute. The only dispute is with regard
to the fact whether the petitioner ever
obtained the possession of the said house.
The assertion on behalf of the petitioner is
that the Daboli House which he acquired
from the Kanpur Development Authority
was also allotted to one R.N. Dwivedi
who had filed the civil suit to protect his
possession after acquisition of the Daboli
House and, therefore, it cannot be said
that he had acquired Daboli House in a
vacant state.

8. From the material on record, it
appears that the plea of the petitioner that
one R.N. Dwivedi had intervened and
asserted his possession over Daboli house
and had, as a matter of fact, filed suit no.
1635 of 1994 an after thought. The fact
remains that the petitioner did acquire
Daboli house and got its possession in a
vacant state. The suit, it appears, was the
outcome of the manipulation made by the
petitioner with a view to support his
defense
that
Daboli
house,
though
acquired, was not in a vacant state. This
aspect of the matter came to be
considered in Rajendra Singh and others
Vs. District Judge, Kanpur and others-
1986 (1) ARC-116. In that case, the
tenant who had purchased a new house in
his name, tried to get over the effect of
Section 12 (3) by obtaining a collusive
decree in a suit filed by his brother in civil
court against him, in which it was
declared that tenant was Benami owner of
the house purchased. In the context of
these facts, it was held that the decree was
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
377
rightly held to be against the public policy
behind Section 12 9(3) and, as such void.
The Rent Control and Eviction Officer or
the revisional authority were held to have
been rightly noticed. In ;the instant case
also, the petitioner appears to have raised
the bogey of not getting possession over
Daboli house obviously with a view to
negate the effect of Section 12 9(3) of the
Act. If the petitioner had not, in fact,
come in possession over Daboli house, he
could
not
have
sold
the
same
subsequently in the year 1998 in favour of
one Anurag Sharma. There is nothing on
record to indicate that R.N. Dwivedi who
is alleged to have filed suit no. 1635j of
1994 was, in fact, in possession of Daboli
house and after his eviction the house was
sold to Anurage Sharma. A house which
was already in possession of R.N.
Dwivedi as claimed by the petitioner,
could not have been purchased by Anurag
Sharma from the petitioner.

9. It would be of no consequence
that on the date on which the vacancy was
declared the petitioner had ceased to own
and occupy Daboli house. A deemed
vacancy under the provisions of Section
12(3) of the Act arises the moment tenant
obtains another premises. Subsequent
changes are hardly relevant. In Sri
Rajendra Prasad v. 9th Addl. District
Judge, Kanpur and others- 1980 All.C.J.-
194, it was held that the relevant date is
the date when the vacancy occurred and
not subsequent fact or subsequent user of
the property. The matter also came to be
discussed in another decision in Surendra
Prakash Goel V. Ist Addl. District Judge,
Muzaffarnagar and others -1987 (1)
ARC-276, in which it was observed that
as soon as tenant acquires in a vacant state
or gets vacated a residential house, a
vacancy validly arises under Section 12
(3) of the Act and if after acquiring in
vacant state his own residential house he
lets it out or parts with its possession
without any objection the effect of the
vacancy so arising is not wiped out or
even suspended. For the application of
Section 12 (3), all that is required to be
established is, firstly, that the tenant
builds or otherwise acquires a residential
building in the same city, and secondly,
gets vacant possession of the same or gets
it vacated. On the proof of these two facts,
a vacancy comes into being under Section
12 (3) read with Section 12 (4) of the act
authorising the Rent Control and Eviction
Officer to allot the building under the
tenancy of the tenant. The apex court has
also taken similar view in Smt. Mohini
Badhwar Vs. Raghunandan Saran Ashok
Saran-1989 (2) ARC-223,In that case,
acquisition of residence in a vacant
possession by tenant was not denied but it
was pleaded that soon after acquiring
possession, the tenant sold it and,
therefore, it was not available on the date
the petition was filed for occupation by
the tenant in a vacant state. It was held
that the fact that the tenant lost possession
of acquired residence when petition for
eviction was filed would not protect the
tenant against Section 14 (1) (h) of Delhi
Rent
Control
Act,
1958.
Taking
inspiration from the aforesaid decisions. I
have no hesitation in coming to the
conclusion that the fact that the petitioner
had sold Daboli house which he acquired
in a vacant state in the year 1998 to
Anurag
Sharma
and
thus
lost
its
possession would hardly be germane or
relevant for declaring vacancy under
Section 12 (3) of the Act is now well
settled. In Harish Tandon Vs. Addl.
District Magistrate Allahabad and others
- 1995 (1) ARC 220 it was observed by
the apex court that when a suit creates a
1All] Mool Chand V. Sri Trilok Chand and others
378
fiction saying that something shall be
deemed to have been done which in fact,
in truth, has not been done, court has to
examine and ascertain as to for what
purpose and between what persons such
statutory fiction is to be resorted to.
Thereafter, full effect has to be given to
such statutory fiction is to be resorted to.
Thereafter, full effect has to be given to
such a statutory fiction and it has to be
carried to its logical conclusion.

10. The sufficiency or otherwise of
the accommodation acquired by the tenant
in a vacant state is also not required to be
gone into or sifted while declaring
deemed vacancy under Section 12 (3) of
the Act. This aspect of the matter was
considered by the apex court in a decision
dated 23rd April, 1997 in Civil Appeal No.
15575 of 1996- Prakash Chandra Rastogi
Vs. Rent Control and Eviction Officer,
Kanpur Nagar and others. In that case, an
argument was raised on behalf of the
tenant that the room constructed by him
was quite small and insufficient for
residential
use
and,
therefore,
the
construction of the said room should not
be treated as construction of a residential
structure so that the deemed vacancy
under the Act can be declared. The apex
court did not accept the said contention
because house itself was residential one
and the construction made in the open
terrace, even though small, could not be
held to be not at all suitable for residential
purpose.

11. In the conspectus of the above
facts, there can be no escape from the
conclusion
that
on account of the
acquisition in a vacant state of Daboli
house by the petitioner, a deemed vacancy
under Section 12 (3) of the Act had
occurred and consequently, the tenanted
accommodation was amenable for being
allotted or for being released in favour of
the land lord. When once the order of
vacancy had been passed after taking into
consideration the stand taken by the
petitioner on 29.5.2000, the subsequent
application moved by the petitioner on
8.6.2000 which was the date fixed for
consideration
of
the application for
release in favour of the land lord was
otiose. Ignoring the said application, the
Rent Control and Eviction Officer was
empowered and legally justified to pass
orders on ;the release application on the
date fixed. The order of vacancy dated
29.5.2000 and the subsequent order of
release dated 8.6.2000 do not suffer from
any infirmity. They had been passed
according to law.

12. It is, therefore, not a case in
which invocation of Article 226 of the
Constitution of India is warranted. The
writ petition is dismissed. Interim order
dated 22.6.2000, which has been extended
from time to time, shall stand discharged.

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