RAJENDRA KUMAR Vs. DISTRICT JUDGE BIJNOR

JUDGEMENT

(1.) -This writ petition arises out of allotment proceedings of a shop under Section 16 of the U. P. Act No. 13 of 1972. Respondent No. 3 Pushpendra Kumar is landlord of the shop. The landlord of the adjoining shop is Umendra Kumar, real brother of Pushpendra Kumar. Both the shops were in tenancy occupation of M/s. Neeraj Trading Company and M/s. Pankaj Trading Company which were trade names of members of same family. Both the shops were vacated at the same time. The allegation is that the tenants neither informed the landlords nor R. C. and E. O. about their vacation. The eastern shop of which respondent No. 3 is the landlord and which is in dispute in the instant petition was sought to be allotted by the petitioner through application filed before R. C. and E. O. on 4.9.1989 registered as Case No. 2 of 1989. On the allotment application the landlord endorsed no objection. On the same date by separate writing landlord/respondent No. 3 intimated R. C. and E. O. about the vacancy. Respondent No. 5 R. K. Bansal on 16.10.1989 filed two separate applications for allotment of both the shops mentioning that shops had been vacated on 12.10.1989. Respondent No. 3 landlord filed another application on 27.9.1989 nominating the petitioner for allotment and stating that he had intimated vacancy on 4/5.9.1989. Through another application dated 16.10.1989 landlord intimated that he had given possession to the petitioner on 11.10.1989 as tenant. R. C. and E. O. by order dated 1.12.1989 declared the shops vacant and invited applications for allotment. R. C. and E. O. held that intimation of vacancy had not been given as provided in Rule 9 and it was also bad, as it was not given within seven days of the vacancy, hence landlord was not entitled to make nomination under Section 17 of the Act. Ultimately the shop was allotted to K. S. Maheshwari, respondent No. 4 by order dated 31.5.1990. R. C. and E. O. also noted that landlord had given possession to the petitioner without allotment order and was in collusion with the petitioner. The other shop was allotted to R. K. Bansal, respondent No. 5. Against both the allotment orders revisions were filed before the District Judge being Rent Control Revision No. 5 of 1990 and 6 of 1990. Petitioner's revision was numbered as Rent Control Revision No. 5 of 1990. District Judge, Bijnor by common judgment dated 30.1.1991 dismissed both the revisions, hence this writ petition.

(2.) THE Rent Control Inspector in his report mentioned that he inspected the premises on 18.9.1989 and found that the tenant M/s. Neeraj Trading Company was not opening the shop for last one month but it was still in its possession and its lock was found on the shop. THE R. C. and E. O. as well as Revisional Court held that in view of the said report the intimation of vacancy on 4.9.1989 was more than seven days after the occurrence of vacancy, hence nomination of the landlord was meaningless. THEre is no specific date of vacation found by courts below, hence nomination of landlord could not be ignored on the ground that vacancy was intimated by him after seven days. THE R.C.I. report on which reliance has been placed simply stated that the tenant was keeping the shop closed and locked for about a month. This does not amount to vacancy, R. K. Bansal, second applicant for allotment himself stated that shop was vacated on 12.10.1989, i.e., much after intimation of vacancy and nomination by landlord. In this regard it is also important to note that it was stated by the landlord that previous tenant vacated/abandoned the shop without any intimation. THE R. C. and E. O. and Revisional Court have not disbelieved this version. If the tenant abandons the premises it is rather risky for the landlord to treat the premises as vacant and take possession thereof immediately. THE tenant may launch criminal and civil proceedings against the landlord for trespass and forcible dispossession. Landlord will have to think several times before occupying such premises. In such situation, it cannot be said that the building became actually vacant on a particular date. In any case in view of the peculiar facts and circumstance of the case, it was a fit case in which the delay in giving intimation of vacancy should have been condoned under Section 15 (4) of the Act.

(3.) ACCORDINGLY, writ petition is allowed. Judgment and order passed by R. C. and E. O. and Revisional Court are set aside. Instead of remanding the matter, it is directed that the shop in dispute shall be deemed to have been allotted to the petitioner (as was done in (1986) 2 ARC 25). No order as to cost.