Sanjeev Kumar and another vs Rent Control And Eviction Officer/Parganadhikari Kairana, Muzaffarnagar and others

Prakash Krishna, J.—The present writ petition is directed against the order dated 30.12.1997 passed by the Rent Control and Eviction Officer/Parganadhikari Kairana, District Muzaffarnagar whereby and whereunder it has rejected the application for declaring the shop in question as vacant, under the provisions of U.P. Act No. 13 of 1972. The respondent No.2, Sanjai Kumar is in occupation of the shop No. 354, Patri Ganda Nala, Mohalla Malookshah, kasba Shamli, District Muzaffarnagar since 1988. An application for declaring the said shop as vacant was filed by the respondent No. 3 on the ground that Sanjai Kumar is in occupation of the said shop without there being any allotment order in his favour. The said proceeding was contested by Sanjai Kumar on the ground that the shop in question is a new construction within the meaning of section 2 (2) of U.P. Act No. 13 of 1972 and as such, the provisions of the said Act are not applicable. The landlords on the contrary came out with a case that the provisions of the U.P. Act No. 13 of 1972 are applicable as the shop was constructed some time in the year 1968. The parties lead evidence in support of their respective cases. The authority below by the impugned order dismissed the said application on the ground that the provisions of U.P. Act No. 13 of 1972 are not applicable to the shop in question. Challenging the aforesaid order the present writ petition has been filed.

Heard the learned Counsel for the parties and perused the record.

The learned Counsel for the petitioner submits that the authority below has ignored the relevant material on the record. He invited the attention of the Court towards the assessment list for the period 1.3.1968 to 31.4.1973 of Ward No. 3/2. In the said assessment list property No. 825/260 is recorded in the name of Nathan son of Haria. The said property has been shown to be in possession of the owner. The petitioners have purchased the said property from Nathan Singh son of Haria. The contention of the learned Counsel for the petitioner is that the said document establishes that the shop in question was in existence in the year 1968 and as such the finding recorded by the authority below is ncorrect. Sri P.K. Jain, learned Counsel appearing for the respondents supports the impugned order and submits that the entire material has been taken into account by the authority concerned.

Having given careful consideration to the respective submissions of the learned Counsel for the parties, it is clear that the said authority has not taken into consideration the aforesaid assessment which relates to the property in question. If the said assessment is taken into consideration, it shows that the property in question was in existence in the year 1968. However, it is not necessary for this Court to express any opinion in view of the order proposed to be passed. The said document is a material document and having been ignored by the authority below, the order is vitiated.

In view of the above discussions, the order dated 30.12.1997 passed by the respondent No. 1 is set aside and the writ petition is allowed.

In the light of the observations made above the matter is restored back to the authority concerned to rehear and redecide the case No. 7 of year 199596 in accordance with law, preferably within a period of four months from the date of the production of certified copy of this order.

No order as to costs. Petition Allowed.