S.U.KHAN, J. - (1.) RESPONDENT No. 2 initiated eviction proceedings against petitioner under Section 2-A of U.P. Act No. 13 of 1972 before Prescribed Authority/lXth Additional C.M.M., respondent No. 1 Kanpur Nagar, which were registered as rent case No. 138 of 1992. The said application was allowed on 26.10.1993. This writ petition is directed against the said order.
(2.) RESPONDENT No. 2 stated that petitioner was inducted in the accommodation in dispute as licensee in June 1988 on monthly rent/licence fee of Rs. 275/-. Respondent No. 2 also filed a rent deed/licence deed. He also filed photocopy of intimation dated 16.6.1988 given to District Magistrate allegedly by both i.e. respondent No. 2 and petitioner. It is significant to note that in the original application under Section 2-A of the Act nothing was said with regard to the deed dated 16.6.1988 or the joint intimation given to District Magistrate of the same date. Application for eviction of the licensee can be filed under Section 2-A(5) of the Act only if licence has been granted in accordance with the said section. Joint intimation to D.M. is necessary ingredient of the said section and if such intimation is not given then eviction proceedings under Section 2-A(5) of the Act are not maintainable as held by the Supreme Court in 1998 Vol 2 ARC 599 (SC). As nothing was mentioned in the original application regarding joint intimation to the D.M. hence the application itself was not maintainable. In any case neither in the original application nor in the affidavit filed by the landlord anything was mentioned regarding order of D.M. extending the period of temporary occupation of petitioner up to six months. Even if it is assumed that joint intimation was given to D.M. for three months occupation of petitioner as licensee by respondent No. 2 and petitioner, application under Section 2-A(5) of the Act was not maintainable for want of order of D.M. extending the period of the temporary occupation up to six months. In this regard reference may be made to the Division Bench Authority of this Court reported in 1982 ARC 528 (Para 22). The tenant had denied giving of joint intimation to the D.M./Prescribed Authority did not record any finding with regard to the said fact. Petitioner had filed various rent receipts uptil February 1992, which were not denied by the respondent No. 2. In the original application filed by respondent No. 2 it was stated in Para 6 that the petitioner had paid licence fees till 31.3.1992.
(3.) SECTION 2-A of U.P. Act No. 13 of 1972 is quoted below : "(2-A. Special provisions for short term licence. - (1) Notwithstanding anything contained in this Act, a person occupying a building as owner or as tenant or in any other capacity (hereinafter in this section referred to as licensor) may permit any other person (hereinafter in this section referred to as licensee) to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment under Section 16 : Provided that intimation of the grant of such licence shall be given jointly by the licensor and the licensee to the District Magistrate within one month from the date of occupation of the building or part by the licensee : Provided further that the District Magistrate may by order, extend the maximum period of such temporary occupation up to 6 months in the aggregate (including the original period of occupation) : Provided also, that similar licence shall not be granted again to any other person in respect of the same building or part within a period of one year from the date of vacation of the building or part by the last licensee. (2) Such licensee shall not be deemed to be a tenant for purposes of Section 20, notwithstanding that he pays or is liable or pay rent for such occupation. (3) Such licensor (licensee ?) shall not be deemed to have ceased to occupy such building or part within the meaning of Section 12 merely on the ground of having granted such licence. (4) The District Magistrate shall not make an allotment under Section 16 in respect of the building or part vacated by the licensee except with the consent of the landlord. (5) If the licensee omits or refuses to vacate the building or part after the expiry of the period of licence the licensor may make an application to the Prescribed Authority for his eviction, and the Prescribed Authority shall thereupon order his eviction, and its order shall be final : Provided that no order shall be made under this sub-section except after giving to the parties concerned a reasonable opportunity of being heard. (6) The provisions of Section 23 shall apply to an order made under sub- section (5) as if it were an order made under Section 21 or under Section 22." ;