Saeed-Uz-Zaman Siddiqi, J. - (1.) This petition has been preferred against the order dated 05.03.2013 passed by Learned Rent Control and Eviction Officer by which vacancy has been declared in the disputed premises. The petitioner has challenged it on the grounds, inter alia, that he was inducted as tenant in the year 1983 by the previous landlords Satish Chandra Agarwal and Jagdish Chandra Agarwal. Opposite party No. 2 has purchased the said property by way of registered sale deed dated 30.05.2009. But he did not intimate to the petitioner about the change of title. After purchase of the property, O.P. No. 2 filed release application under Section 16 (1) (b) of U.P. Act No. 13 of 1972 on 26.11.2011 on the ground that Khaderu was the tenant and hence there is deemed vacancy under Section 12 of U.P. Act No. 13 of 1972. The petitioner filed suit for permanent injunction against Opposite party No. 2 and previous owners who have attempted to dis-possess the petitioner illegally in which an interim relief was granted to the petitioner. The petitioner is bona fide tenant and the release application has been filed on false grounds and there is no deemed vacancy. The declaration of vacancy is absolutely illegal.
(2.) I have heard learned counsel for both the parties at length and gone through the records.
(3.) Reliance was placed on the law laid down by this Court in Smt. Reeta Singh @ Madhvi Singh & Anr. v. Rajendra Sharma & Ors. With Anand Ji Arya vs. Rajendra Sharma & Ors., 2012 (3) JCLR 417 (All) , in which it has been held, as under:- "The Apex Court in the case of Nutan Kumar & Ors. v. II nd Additional District Judge & Ors., 2002 (2) ARC 645 , had held that Section 13 of the said Act specifically provides that a person who occupies, without an allotment order in his favour, shall be deemed to be an unauthorized occupant of such premises. As he is in unauthorized occupation he is like a trespasser. A suit for ejectment of a trespasser to get back possession from a trespasser could always be filed. Such a suit would not be on the contract/agreement between the parties and would thus not be hit by principles of public policy also. However, the Apex Court in the aforementioned case has not said that for ejecting an unauthorized occupant/trespasser only the suit is a remedy. It has not anywhere put any restriction on the appropriate authority, to seek ejectment of the unauthorized occupant/trespasser by initiating the proceedings under Section 12 of the Act in the light of Sections 11 and 13 of the Act." "The premises in the possession of an unauthorized occupant would be deemed to be vacant for the purposes of Rent Control Act, even if an unautorized occupant is inducted into the premises contrary to the provisions of the Act by the landlord himself, the legislature has not placed any restriction on the rent control authorities to initiate proceedings under Section 12 of the Act. So far as the release of such premises which are deemed to be vacant under Section 12 (4) of the Act is concerned." "Bare perusal of the record clearly would show that there is no cogent material on record to establish that the Respondent No. 1 or his father was occupying the disputed premises with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 i.e. 5th July, 1976, therefore, Respondent No. 1 who is admittedly occupying the premises in dispute without allotment order is an unauthorized occupant within the meaning of Sections 11, 12, 13 and 31 of the Act.";