- (1.) Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Anil Kumar Tripathi, appearing for the petitioner and the learned Counsel for the respondents. The writ petition is directed against the order dated 14.2.2005, passed by the Rent Control and Eviction Officer/Additional City Magistrate, VIIth, Kanpur-Nagar declaring vacancy in the accommodation in question and the revisional order dated 4.11.2011 dismissing petitioner's revision. The basic contention of the learned Counsel for the petitioner is that the petitioner got possession of the accommodation in question in 1979 and proceedings have been initiated after 12 years, therefore, the same is barred by time.
(2.) The question of limitation of 12 years is not to be applied in a mechanical manner by commencing the period from the date of unauthorized possession unless the real question as to when cause of action would have arises is seen. This aspect has been dealt with by this Court in Uma Yadav (Smt.) v. A.DM. (Supply)/R.C.E.O. and others, 2012 3 ARC 141 paras 71 to 78 whereof, read as under: 71. I do not find any period of limitation as such prescribed in para 12 of the judgment in Mansaram holding that in no case an order of eviction shall be declined or an unauthorised or illegal entry of a tenant shall stand regularized after a particular period of time, treated to be a period of limitation, particularly in a case which would be in the teeth of the statute based on proved facts demonstrating an admitted illegal entry in the premises and where the authorities concerned cannot be held responsible for not taking appropriate action for want of any information. 72. Can it be said that cause of action would arise immediately as and when a person occupy an accommodation without any letter of allotment and in all cases this 12 years period will commence therefrom, I find that on this aspect, no issue has ever been raised in all the aforesaid decisions and therefore it has neither been argued nor decided as to when a "cause of action would arise" and "whether it would necessarily arise in any case only on the date when a person takes possession of a accommodation without any latter of allotment or there can be different dates". 73. In my view, this question is of much relevance so as to attract the aforesaid period of limitation or laches, whatever terminology one may use. Such illegal occupation/unauthorised occupation can be challenged/assailed by three sets of people: (i) Landlord, whose accommodation is unauthorizedly occupied by someone. (ii) Applicant, i.e., a prospective allottee who is in the need of an accommodation and has applied for allotment of an accommodation to R.C.E.O. Here we will term him as "prospective allottee" for future discussion. (iii) R.C.E.O./District Magistrate, as the case may be, who has power to declare vacancy or to proceed to make allotment in case of a deemed vacancy of a particular premises. 74. In respect to the first set namely, owner of the premises, normally he would get knowledge of occupation of his building by someone unauthorizedly as soon as such possession is taken and therefore, so for as landlord/owner is concerned in his/her case, cause of action may arise on the date of such unauthorised occupation. However where landlord can show that for certain reasons, namely landlord is residing elsewhere in different city or in different country or for any other reason, had no knowledge whatsoever about such unauthorised occupation, cause of action would arise and continue to arise on the date he acquired such knowledge for the simple reason that without such knowledge, one is not expected to take an action for ejectment/release from unauthorised occupant. 75. So for as the authorities are concerned, one cannot presume that they can get knowledge immediately as soon as a person is put in possession of a building unauthorisedly, i.e., without any letter of allotment. Such possession can be given in various ways namely, by outgoing tenant without any notice to the landlord and Rent Control Authorities and/or by inducting an outsider to the premises in question and thereafter vacating the premises by tenant already occupying it, or with the consent of landlord, possession of an accommodation is given to a person without informing the authorities and without making the building available for allotment under the statute. 76. Section 15 makes it obligatory upon tenant and landlord to inform the Rent Control Authorities i.e., District Magistrate about vacancy occurring or likely to fall within a specific time with the power to condone delay in giving such information. It is only when this provision has been complied with, it can be said that District Magistrate or Rent Control Authorities had the knowledge of vacancy and yet, if they do not take any action to evict an unauthorised occupant for such a long time, the laches can be applied. In my view, so for as Rent Control Authorities are concerned, in their case, cause of action would arise on the date, factum of unauthorised occupation by someone has come to their knowledge. 77. Attributing knowledge of unauthorised occupation without any intimation to authorities may render redundant and virtually nullify the efficacy of the statute, and, the purpose and objective with which these provisions have been made. Probably for this reason, in respect to certain cases where action may not have been taken by Rent Control Authorities immediately, the Legislature itself has made provision like section 12 regarding "deemed vacancy" of building and such "deemed vacancy" would continue. Action for vacation of an unauthorised occupant can be conceived only when authorities concerned gather information/notice of such unauthorised occupation. Therefore, in case of Rent Control Authorities, again it is the knowledge of such unauthorised occupation wherefrom the said period of 12 years would commence and not otherwise. 78. Now coming to the third category namely prospective allottee (s). They also cannot be presumed to possess knowledge every time, whenever an individual has got possession unauthorisedly or otherwise i.e., without any letter of appointment or not. The position of vacancy can be gathered by prospective allottee only when vacancy in a premises is entered in the register maintained in the office of RCEO as contemplated in Rule 9(3) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as "Rules, 1972") unless it can be shown otherwise by positive evidence that particular prospective allottee acquired knowledge of unauthorised occupation at a particular point of time even before entry of vacancy in the register under Rule 9(3) and in such case, cause of action may arise from that date. Therefore, in respect to the third category, either it is the date on which vacancy is entered in the register maintained under Rule 9(3) of Rules, 1972 or the date of knowledge acquired by the prospective allottee.
(3.) Here is a case where proceedings have commenced on an application filed by prospective allottee Sri Amit Kumar vide application dated 23.1.2004. It has not been shown anywhere either before Court below or this Court that Sri Amit Kumar had knowledge of unauthorized possession of accommodation in question by the petitioner at any earlier point of time and despite such knowledge, he filed application after expiry of 12 years. Sri P.K. Jain, learned Senior Advocate, could not dispute that case in hand is governed by the contingencies dealt with by this Court in Uma Yadav in para 73(ii) read with para 78 of judgment and if the aforesaid dictum is applied, it cannot be said that the proceedings, in the case in hand, are barred by limitation. Sri Jain, learned Senior Advocate could not dispute that matter is squarely covered by the aforesaid decision in Uma Yadav against him and he also could not advance any argument to pursue this Court to take a different view in the matter.;