O.P. Srivastava, J. - (1.) THIS writ petition is directed against the order dated 24.8.2002 and the order dated 21.11.2002 passed by the Prescribed Authority and the order dated 16.12.2002 passed by the District Judge, Kanpur Nagar in revision. The facts giving rise to this writ petition in brief may be stated as follow:
(2.) ADMITTEDLY the respondent No. 1 is a landlady of the godown in premises No. 108/138 Sisamau, Kanpur and the petitioner is in possession thereof. One said Ahmad applied for the allotment of the said godown in his favour. The said proceedings were contested by the petitioner on the ground that he is possession of the said godown since 1990 as tenant of the respondent No. 1 by mutual agreement and prayed for allotment in his favour. Allegedly the same was let out to petitioner by opposite party No. 1 on monthly rent as there was no need of allotment, it being a new construction. The respondent landlady also appeared in the said case and applied for release of the accommodation disputing the claim of the petitioner. The learned Rent Control and Eviction Officer, rejected the claim of the petitioner vide order dated 24.8.2002 on the ground that he is in possession of the godown without any valid allotment. Vide order dated 2.11.2002 the Rent Control and Eviction Officer directed the release of the godown in favour of the petitioner rejecting the application of the respondent for allotment. The revision preferred before the District Judge was also dismissed.
(3.) I have heard the learned Counsel for the parties. It has been contended on behalf of the petitioner that the petitioner is in possession of the said accommodation since 1990 which has been admitted on behalf of the respondent No. 1 during the course of argument before the Rent Control and Eviction Officer and therefore, the petitioner cannot be taken to be a trespasser and his claim for allotment even if he is not a valid allottee under the authority of the Rent Control and Eviction Officer can be considered. The learned Counsel for the petitioner further argued that during the period of 12 years, landlady never raised any grievance regarding the alleged forcible possession by the petitioner which itself falsifies her contention and lends support to the petitioner's case that he is in possession with the permission of the landlady. He argued that if the tenancy was without allotment the action should have been taken within a reasonable time by the landlady under Article 137 of the Limitation Act and not after a gap of 10 -12 years. He argued that since no action was taken by respondent landlady the consent in favour of the petitioner will be implied under section 13 which does not speak of any written consent under the Act. He, therefore, claimed that he is entitled for allotment under section 10(5)(d) read with section 10(8). Lastly it was argued that under the amendedR.8(1) inspections is to be made by a Gazetted Officer, which has not been done in this case and in view of the violation of theR.the entire proceedings should be deemed to stood vitiated. On the other hand the learned Counsel for the respondents argued that as the petitioner is a rank trespasser and his possession is not with the permission of the landlady he has no claim in respect of the said accommodation and his claim was rightly rejected by respondent No. 2. It has been further argued that the consent of respondent No. 1 cannot be presumed.;