# Ramji Lal Varshney & another v. A.D. J., Aligarh and others

- **Citation:** (2000) 3 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramji-lal-varshney-another-v-a-d-j-aligarh-and-others-39653
- **Pages:** 5

## Text

3All] Ramji Lal Varshney & another V. A.D. J., Aligarh and others
17
exemption granted by Section 2 (1)
(bb) if Act No.13 of 1972,the petitioner
cannot claim that the provisions of the said
Act is applicable to the building in
question.

12. It has been found that the
petitioner is not entitled to the benefit of
Section 114 of the Act as the lease was not
determined on the ground that it has a right
to re-enter the premlise4s under the
forfeiture
clause
under
the
tenancy.
Respondent no.1 rightly decreed the suit.

There is no merit in the writ petition.
It is accordingly dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 6/8'+,5 1$5$,1 -
7+( +21·%/( 6/8'+,5 1$5$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

5DPML /DO 9DUVKQH\ DQRWKHU3HWLWLRQHUV
9HUVXV
$GGLWLRQDO 'LVWULFW -XGJH $OLJDUK
 RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHUV
6KUL 3UDNDVK *XSWD
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL $1 %KDUJDYD
6KUL *3%KDUJDYD
6&

83 8UEDQ %XLOGLQJV 5HJXODWLRQ /HWWLQJ
UHQW DQG (YLFWLRQ $FW E
± 'HHPHG YDFDQF\ HDUVWZKLOH /DQG ORUG
DIWHU
HMHFWLQJ
WKH
WHQDQW
REWDLQHG
SRVVHVVLRQ
LQ
H[FXWLRQ
RI
'HFUHH
6XEVHTXHQWO\
VROG
WKURXJK
UHJLVWHUHG
VDOH GHHG LQ WKH PHDQWLPH DSSOLFDWLRQ
EHIRUH '0 IRU UHOHDVH RI WKH UHQWHG
DFFRPPRGDWLRQ FDQ QRW EH WUHDWHG DV
'HHPHG YDFDQF\
+HOG
7KH SRVVHVVLRQ RI WKH ODQG ORUG ZLOO EH
ODZIXO EXW LI KH ZDQWV WR FRQWLQXH LQ
SRVVHVVLRQ KH LV WR DSSO\ IRU UHOHDVH RI
WKH VDLG DFFRPPRGDWLRQ XQGHU VHFWLRQ
 E RI WKH $FW 7KH SUHYLRXV ODQG ORUG
KDG QRW ILOHG DQ\ DSSOLFDWLRQ IRU UHOHDVH
RI
WKH
GLVSXWHG
KRXVH
DQG
LQ
WKH
PHDQWLPH UHVSRQGHQW QR KDG ILOHG
DSSOLFDWLRQ
IRU
DOORWPHQW
,Q
WKHVH
FLUFXPVWDQFHV
WKH
DFFRPPRGDWLRQ
YDFDWHG E\ +DU 3UDVDG LQ SXUVXDQFH WR
WKH GHFUHH SDVVHG LQ VXLW QR RI
ZLOO EH WUHDWHG DV YDFDQW XQGHU ODZ 3DUD
)

By the Court

1. This writ petition is directed
against the order passed by the Rent
Control and Eviction Officer declaring the
disputed accommodation as vacant on
30.4.1981 and thereafter rejecting the
application of the landlord-petitioners for
the release of the disputed accommodation
on 10.10.1983 and allotting the same to
respondent No.3 on 19.10.1983 and the
order of the revisional authority dated
20.07.1984 affirming the said order in
revision.

2. The dispute relates to House
No.1886, Mendu Gate, Hathras, district
Aligarh. One Ram Bablu and Smt. Bhu
Devi were owners of this property. Har
Prasad was a tenant of two rooms of first
floor of the disputed house. Ram Babu
and Smt. Bhu Devi filed Suit No.98 of
1975 for recovery of arrears of rent,
ejectment and damages against their tenant
Har Prasad. The suit was decreed on
3.4.1979 and thereafter the landlords
obtained possession of the portion in
occupation of their tenant Har Prasad.
Kishan Singh, respondent No.3 filed an
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
18
application for allotment of the said
portion of the disputed house on 19.11
1979. The Rent Control and Eviction
Officer asked the Rent Control Inspector to
submit a report. He submitted a report on
10.12.1979 stating that the landlords had
obtained the possession of the disputed
house from Har Prasad and the same be
treated as a vacant. The Rent Control land
Eviction Officer issued notice to Ram
Babu and Smt. Bhu Devi but as they were
not served, he directed the service by
publication. Ram Babu and Smt. Bhu
Devi, the erstwhile owners of the property,
sold the disputed house to Ramji Lal
Varshney, and his wife Smt. Bahuti Devi
alias Laxmi Devi, petitioner Nos. 1 and 2
respectively by registered sale deed on
294.1981 and delivered the possession of
the said house to them.

3. The Rent Control land Eviction
Officer
declared
the
disputed
accommodation as vacant on 30.43.1981.
Respondent No.3 fled an application on
13.5.1981 stating that the erstwhile owners
of the property had sold the property to the
petitioners and notices may be issued to
them. The petitioners, on coming to know
the order of vacancy, filed objection on
5.6.1981 stating that the previous landlords
had sold the property to them and they
were in its possession. The house was
never vacant. On 24.6.1081 they filed
another
application
again
taking the
objection against the vacancy and further
praying that the disputed house be released
in their favour. The Rent Control land
Eviction Officer maintained the order
declaring the vacancy and rejected the
application filed by the petitioners for
release on 10.10.1983 and, thereafter,
passed an order directing for allotment of
the disputed house to respondent No.3 on
9.10.1983. The petitioners, aggrieved
against these two orders, filed two
separated revisions before the District
Judge. Respondent No.1 has dismissed the
revisions by the impugned order dated
20.7.1984.

4. The disputed between the parties
involved two questions. Firstly, as to
whether there was any vacancy and
secondly whether the Rent Control land
Eviction Officer was justified in rejecting
the release application filed by the
petitioners in case he found the disputed
accommodation as vacant.

5. The main thrust of the submission
of the learned counsel for the petitioners is
that the erstwhile owners Ram Babu and
Smt. Bhu Devi were in possession of the
disputed house and after they having
executed the sale deed in their favour on
29.4.1981, delivered possession to them
and a person obtaining possession from the
previous as owner of the property and the
said accommodation cannot be treated as
vacant under law. He has placed reliance
upon the decision Smt. Parmeshwari and
another
Vs.
Jagdish
Sharma
and
others,1976 AWC 703 wherein it has been
held that if an owner executes sale deed of
his house belonging to him and delivers
possession to the purchaser, the possession
of such purchaser will be as of owner and
the house in his possession cannot be
deemed as vacant. This case has to be
examined on the facts of the present case.
The erstwhile owners of the property had
filed Suit No.98 of 1975 for recovery of
arrears of rent and ejectment against their
tenant Har Prasad. The suit was decreed on
3.4.1979. They had executed the decree
and obtained possession from the tenant.
Respondent NO.3 on coming to know of
this fact filed application for allotment on
19.11.1979.
The
Rent
Control
land
3All] Ramji Lal Varshney & another V. A.D. J., Aligarh and others
19
Eviction Officer asked the Rent Control
inspector to submit a report. He submitted
a report that the tenant had vacated the
accommodation
and
handed
over its
possession
to
the
landlords
and
accommodation was vacant. It was
incumbent upon the previous landlord to
have obtained an order of release from the
District Magistrate /Rent control and
Eviction Officer under section 16 of U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction ) Act, 1972 (in short the
Act). The landlord is entitled to obtain
possession from his tenant when he
vacates it voluntarily or under the orders of
the Court of any other authority. The
possession ;of the landlord will be lawful
but if he wants to continue in possession,
he is to apply for release of the said
accommodation under section 16(1)(b) of
the Act. The previous landlord had not
filed any application for release of the
disputed house and in the meantime
respondent No.3 had filed application for
allotment, In these circumstances, the
accommodation vacated by Har Prasad in
pursuance to the decree passed in Suit
NO.98 of 1975 will be treated as vacant
under law.

6. There is, however, a disputed as
to the extent of the accommodation in
possession of Har Prasad. The version of
the petitioners was that Har Prasad was a
tenant of two rooms on the first floor of
the house in question. The Rent Control
and Eviction Officer has declared the
entire house as vacant without examining
this question. Petitioner No.1 had filed an
affidavit dated 4010182 and in para 4 of
the affidavit he had categorically stated
that Har Prasad was tenant of only two
rooms on the first floor of the house. The
Rent Control land Eviction Officer had
appointed Naib Tehsildar to submit a
report. He submitted a report wherein he
had
given
the
details
of
the
accommodation in the entire house. It was
found that on the ground floor there were
six rooms besides bathroom etc. and on the
second floor there were five rooms. The
entire house was constructed in an area of
115 sq. meters. The Rent Control land
Eviction Officer did not record any finding
as to what was the portion in occupation of
Har Prasad. The accommodation obtained
by the previous landlord from Har Prasad
can only be treated as vacant under law but
in respect of other portions which were
either in possession of the landlord or was
never under the tenancy of any person,
could not be treated as vacant under law as
held in Smt. Parmeshwari's case (supra).

There is another controversy that the
petitioners had let out one room 'baithak'
to one Dr. R.P. Misra after they obtained
the possession from the previous landlord
after purchasing the house in the year
1981. The Rent Control and Eviction
Officer had declared the vacancy on
30.4.1981
while
the
petitioners
had
purchased the property on 29.4.1981.The
Rent Control land Eviction Officer had not
passed order of declaring vacancy on
30.4.1981 on the ground that any portion
was let out by the petitioners to Dr. R.P.
Misra Dr. R.P. Misra had filed affidavits
stating that in fact he had his own clinic at
another place but while he had gone out to
take part in 13th ceremony on the death of
his father, Hir Lal and others broke open
lock of the shop and took forcible
possession and in the situation petitioner
No.1 permitted him to open his clinic in
his 'baithak' for about a month. He never
paid any rent but lived only for a short
time as a licensee. The Rent Control land
Eviction
Officer
had
appointed
Commissioner from time to time and it
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
20
was found that Dr.R.P. Misra was there.
Dr.R.P. Misra made a statement before the
Commissioner to this effect. It appears
that he filed an affidavit subsequently
stating that he was a tenant but later on he
was examined as a witness on 10.3.1983
and again he made it clear that he was
never a tenant but only a licensee for a
short time. The Rent Control and Eviction
Officer held that Dr. R.P. Misra was in
possession
and,
therefore,
the
accommodation should be treated as
vacant. Firstly he did not record as to the
extent of the accommodation which was in
possession of Dr. R.P. Misra and secondly
whether his status was that of a licensee
for a short time. Admittedly Dr. R.P.
Misra
had
left
the
accommodation
subsequently and the petitioners were in
possession. The disputed accommodation
cannot be treated as vacant of which Dr.
R.P>Misra was occupying as a licensee for
a short time.

Another question is whether the Rent
Control land Eviction Officer was justified
in
rejecting
the
application
of
the
petitioners for the release of the disputed
accommodation
even
if
the
accommodation was treated as a vacant.
Respondent no.2 rejected the application
without examining the need set up by the
petitioners. He look the view that the
landlords had purchased the property on
29.4.1981 but they had filed an application
for release on 20.12.1982 after about 18
months and that indicated that they did not
need the disputed house. Secondly, they
did not disclose as to what they did in
respect to the accommodation, which they
were occupying prior to the purchase of
the property by them on 29.4.1981.

I have examined the record and found
that the respondent Nos. 1 and 2 totally
failed to consider the material evidence
produced on the record. The petitioners
had filled an application on 24.6.1981
challenging the vacancy and also prayed
for release of the disputed house, a copy of
such application in Annexure '2' to the
writ petition. The petitioners had also filed
affidavit on 19.8.1981 and 4.1.1982
(Annexures '3' and '5' respectively to the
writ petition) and they categorically stated
about their need. They again filled another
formal application on 20.12.1982 praying
for release of the disputed house. It was
their second application to avoid any
further technicality in respect of filing an
application under section 16(1)(b) of the
Act. The observation of respondent no.2
that the application was filed for release
after 18 months is not correct. The
petitioners further had categorically stated
in para 6 of their affidavit dated 4.1.1982
(Annexure '5' to the writ petition) that
they were living with their family in a
rented house and after the purchase, they
are living in the disputed house. They had
categorically stated that they do not own
and possess any other house except the
disputed house and it was purchased only
for their personal need. Similar assertion
was mad in the affidavit filed by petitioner
No.1 on 19.8.1981 (Annexure '3' to the
writ petition). Respondent No.1 totally
ignored to consider the averments made in
the affidavit. The petitioners had further
stated that there were nine members in
their family and they were living in the
disputed house. The Rent Control land
Eviction Officer had asked a report from
the Naib Tehsildar. He submitted a report
on 26.1.1983 and in his report he indicated
the total numbers of the rooms in the house
and the members of the family of the
petitioners. He disclosed the names of 9
family members of the petitioners but this
report
has
been
totally
ignored
by
3All] Dr. Abhijit Das & others V. State of U.P. and others
21
respondent no.2 while considering the
release application filed by the petitioners.

Lastly it may be noted that he was
considering
the
objection
of
the
prospective allottee in regard to the
application filed by the petitioners for the
release of the disputed house. In Talilb
Hasan
and
another
Vs.1st
additional
District Judge. Naintal and others,
1986(1)ARC, it has been held that the
prospective allottee has no right to
participate in the proceedings and contest
the release application filed by the
landlord. Respondent No.1 dismissed the
revision without examining the record of
the case.

In view of the above the writ petition
is
allowed
and
the
orders
dated
30.4.1981,10.10.1983,19.10.1983
and
20.7.1984 are hereby quashed. The Rent
Control and Eviction Officer, respondent
No.2 is directed to decide to decide the
matter afresh in accordance with law
keeping in view the observations made
above.

Considering
the
facts
and
circumstances of the case , the parties shall
bear their own costs.
Petition Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' 7+( $//$+$%$'
'$7(' 7+( $//$+$%$'
%()25(
%()25(
7+( +21·%/( 656,1*+ -
7+( +21·%/( 656,1*+ -
7+( +21·%/( 5.6,1*+ -
7+( +21·%/( 5.6,1*+ -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

'U $EKLMLW 'DV RWKHUV
«3HWLWLRQHUV
9HUVXV
6WDWH RI 8WWDU 3UDGHVK
 RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU 3HWLWLRQHUV
6UL 5DYL .LUDQ -DLQ
6UL 5. $ZDVWKL
&RXQVHO IRU 5HVSRQGHQWV
6WDQGLQJ &RXQVHO
6UL 6XGKDQVKX 'KXOLD
6UL /31DLWKDQL
6UL $PDUMHHW 6LQJK

&RQVWLWXWLRQ
RI
,QGLD
$UWLFOH

$OWHUQDWLYH 5HPHG\3HWLWLRQ IRU TXDVKLQJ
WKH
),5
SHQGLQJDSSOLFDWLRQ
IRU
%DLO
ZKHWKHU
FDQ
EH
FRQVLGHUHGHYHQ
RI
VSHFLILF SURYLVLRQ XV &U3& ZKHQ
PDLQ UHOLHI IRU TXDVKLQJ WKH ),5 FDQ EH
JUDQWHG E\ WKH 'LYLVLRQ %HQFK JUDQW RI
$QFLOODU\ UHOLHI LV SURSHU
+HOG ±
7KH TXHVWLRQ ZKHWKHU D FDVH LV PDGH RXW
LV D TXHVWLRQ ZKLFK KDV WR EH GHWHUPLQHG
LQ WKH PDLQ SHWLWLRQ EXW LQ WKH IDFW
VLWXDWLRQ RI WKH FDVH ZH GR QRW IHHO WKDW
LW
ZRXOG
EH
LQDSSURSULDWH
IRU
XV
WR
FRQVLGHU WKH SHWLWLRQHUV¶ SUD\HU IRU EDLO
SHQGLQJ GLVSRVDO RI WKH ZULW SHWLWLRQ ,W
EURRNV QR GRXEW WKDW DSSOLFDWLRQ IRU EDLO
XQGHU VHFWLRQ &U3& LV WR EH GHFLGHG
E\ D 6LQJOH -XGJH EXW DV VWDWHG VXSUD
VLQFH UHOLHI KDV EHHQ VRXJKW IRU TXDVKLQJ
WKH ),5 WKH DQFLOODU\ UHOLHI RI EDLO FDQ EH
GHFLGHG E\ D 'LYLVLRQ %HQFK SDUD

By the Court

1. In this writ petition under Article
226 of the Const., the petitioners who are
incriminated in case crime No.286 of 2000
under section 292,293 and 505 I.P.C.
Police
Station
Baramandal
District
Almorah have pressed into service the
following reliefs.

"
(i) Issue an order or direction in the
nature of certiorari quashing the F.I.R.
dated 20.04.2000 contained in Annexure
no.1 to the writ petition.
(ii) Issue a writ order or direction to
initiate the C.B.I. Investigation into the