Honourable Rakesh Tiwari, J. - (1.) HEARD learned counsel for the parties and perused the record.
(2.) THIS writ petition has been filed challenging the validity and correctness of the orders dated 31.1.2011 and 10.2.2011 passed by Special C.J.M. Kanpur Nagar/Prescribed Authority in Rent Case No. 27 of 2001: Mithelesh Kumari v. Mohd. Yunus. The brief facts of the case are that release application was filed by the landlord/respondent No. 2 under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for release of accommodation in dispute in possession of the tenant Mohd. Yunus from the premises House No. 11/89 Suitergunj, Kanpur Nagar. The tenant filed an objection inter alia that need and hardship of the respondent/landlord is not genuine and bona fide. Though admitting the fact in para 1 of his objection that respondent No. 2 was his landlady and he was her tenant, also raised question of ownership whereupon Mohd. Yunus, the original tenant died on 4.1.2010. The petitioner, Ms. Hazra Begum the real unmarried sister of Mohd. Yunus and his real brother Mohd. Ayub represented themselves as tenant on the ground of being family members of the original tenant Mohd. Yunus (since deceased). Apart from the objection already filed by the original tenant Mohd. Yunus to the release application, the petitioner also filed her objections adopting the stand taken by her late brother that waqf Moitadaula is the owner of the premises in question and neither the waqf Moitadaula nor Shia Central Board of Waqf is arrayed as a party in the release application. The petitioner also moved an application under Section 34 (c) of the Act for appointment of advocate commissioner and for actual measurement of the accommodation in dispute. The application for commission along with prayer has been filed as Annexure-5 to the writ petition, which reads thus: "In the instant matter, it is submitted that the landlady is in use and occupation of two rooms on the ground floor, two rooms on the first floor and one big room (by removing partition wall in between two rooms) on the second floor while she has mentioned only two rooms in her occupation in the premises in question. So inspection of the premises in question has become essential to assess and enquire into the alleged need and requirements of the landlady/petitioner. Hence this application for appointment of an Advocate commissioner in the case to inspect the premises in question and to submit his report proper prayer as under: It is,-therefore, respectfully prayed to please appoint an Advocate Commissioner to inspect the premises in the case and submit his report on the following points: (i) To the measurement of the accommodation on ground floor, first floor and second floor under occupation of the landlady in premises No. 11/89 Souterganj, Kanpur Nagar. (ii) To take separate measurement of rented portion of the opposite party No. 1/2 Hazra Begum. (iii) To note the names of tenants, if any, presently occupying the portion and to enquire about the time whence he or she is occupying. (iv) To note any other point, pointed out by the parties on spot or by their respective counsel." Subsequently, the Court of Special C. J.M./Prescribed Authority vide order dated 18.1.2011 allowed the application granting a day's time for taking steps. It appears that on 31.1.2011, opportunity to take steps was closed as the petitioner had not taken any steps in pursuance of the order dated 18.1.2011 passed by the Prescribed Authority and fixed 10.2.2011 in the case. On that date i.e. 10.2.2011, the petitioner moved an application for grant of further time to take steps which has been refused by the Court by the following order dated 10.2.2011. JUDGEMENT_699_ADJ4_2011Image1.jpg
(3.) IN the order dated 10.2.2011 it is provided that in case steps are not taken by the applicant within the time allowed the order for appointing the commissioner shall be understood to be automatically discharged/vacated. The Court thereafter fixed 31.1.2011 in the case. Aggrieved by the said order, the petitioner has filed this petition.;