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Judgment
V.K. Shukla, J.—In the present case, petitioner claims that he has been staying in the ground floor kothri numbered as 631/13 and also in the portion numbered as 631/11, which remained in the possession of the father of the petitioner. Petitioner has contended that approach to the first floor of the house is through the vacant portion. Petitioner has contended that he has been continuously paying rent to the landlady. It has been further contended that sale deed was executed on 9.5.1997 in favour of Indra Pal Sharma. After execution of sale deed notices were given for ensuring payment of rent. Petitioner has contended that thereafter, respondent No. 4 Sanjeev Kumar Sharma moved an application for allotment of premises No. 631/13 on ground floor, and when petitioner acquired knowledge in regard to aforesaid application, he filed his objection. Thereafter, order dated 29.11.2008 has been passed, declaring vacancy, against which present writ petition has been filed.
Counter affidavit has been filed by Indra Pal Sharma, disputing the claim set up by the petitioner. To the said counter affidavit, rejoinder affidavit has been filed. After pleadings inter se parties have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.
At the point of time when hearing started, pursuant to order dated 27.8.2008, a Draft has been handed over to Sri Vinod Kumar Agrawal, Advocate, by the petitioner through his Counsel Sri S.S. Chauhan.
Learned Counsel for the petitioner, Sri S.S. Chauhan, contended with vehemence that vacancy could not have been declared as has been done in the present case, as such order impugned is liable to be quashed.
Countering the said submission Sri Vinod Kumar Agrawal, Advocate contended that rightful action has been taken, as such no interference be made.
After respective arguments have been advanced, factual position, which emerges in the present case is that the petitioner has been in possession of the premises in question since 1984. This fact has also been accepted by the prospective allottee Sanjeev Kumar Jain that the petitioner is in possession of the premises since 1984, as has been disclosed by him in his affidavit Hon''ble Apex Court in the case of Mansa Ram v. S.P. Pathak, 1984 (1) ARC 17 (SC) p. 12 has taken the view that where an incumbent is in possession of the premises for the last more than 12 years, then in such a situation vacancy cannot be declared under U.P. Act No. XIII of 1972. Said judgment has been followed by this Court in the case of Anil Kumar Dixit v. Maya Tripathi, 2006 (62) ALR 383.
As in the present case admittedly, petitioner has been staying in me accommodation in question since 1984, as such on application for allotment made on 7.11.1997 and based on the same vacancy declared on 25.11.1998 cannot be sustained as same is in violation of the judgment of Hon''ble Apex Court as well as of this Court referred to above. Consequently, order declaring vacancy is unsustainable, and is hereby quashed.
In respect of kothri on ground floor, namely 631/13, it has been accepted by the petitioner that very meagre rent is paid to landlord. Petitioner Devendra Kumar through his Counsel Sri S.S. Chauhan has agreed that with effect from 1.10.2008, for the accommodation in his possession, namely 631/13 only, he would be paying rent at the rate of Rs. 500/ per month, and the same shall be exclusive of house tax and water tax. This payment in no way will come in the way of landlord to take suitable proceedings against the tenant, in accordance with law, for his ejectment, if any.
Subject to observations made above, writ petition is allowed.
No order as to costs.