R. H. Zaidi, J. - (1.) Present petition is directed against the order dated 17. 6. 1996 passed by the Rent Control and Eviction Officer, Kanpur Nagar/addl. City Magistrate, (VI), Kanpur Nagar, declaring the shop in dispute situated on the ground floor of Building No. 111-A/19, G. T. Road, Kanpur (hereinafter referred to as 'the shop in dispute') as vacant, under Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act' ).
(2.) THE brief facts of the case pertaining to the controversy involved in the case are that the aforesaid building (No. 111-A/19, G. T. Road, Kanpur) was constructed in two phases. In the first phase in 1962-63, the ground floor i. e. 5 shops including the shop in dispute and other residential portion were constructed. In the second phase in 1984-85, first and second floors and Balcony of the said building were constructed. The shop in dispute was let out in 1964 to Shri Sardar Kuldeep Singh, father of the petitioner, who established his business in the name and style of M/s. Gurdeep Automobiles in the same. In 1975, the occupants of the shops at G. T Road were provided alternative commercial accommodations by Kanpur Development Authority at the locality known as Pratap Ganj, Gaderian Purwa, Kanpur, on the condition that they vacate the shops in their occupation at G. T Road, Kanpur and shift their business to that locality and none of their family members to remain at G. T Road, Kanpur. Occupants of the shops at the G. T Road were shifted to Pratap Ganj with a view to solve the traffic problem at G. T Road (National, Highway No. 2) which passes through the Kanpur City. Sardar Gurbaksh Singh also opted for vacating the shop in dispute and shifting his business to plot No. 45, Pratap Ganj. On 18. 2. 1982 Sardar Gurbaksh Singh intimated the Kanpur Development Authority that he has vacated the shop in dispute and shifted his business to Plot No. 45, Pratap Ganj. Thereafter a lease deed was executed in respect of Plot No. 45, in favour of the Sardar Gurbaksh Singh. It was in the year 1984-85 that the petitioner took on rent the shop in dispute and started the business in the name and style M/s. Jaswant Motors, without any order of allotment in his favour. It was on an application filed by one Shri Gurmit Singh that proceedings under Section 16 of the Act were initiated. Under the orders passed by respondent No. 1 the Rent Control Inspector submitted his report to the effect that the shop in dispute was in possession of the petitioner who used to carry on business in the name and style M/s. Jaswant Motors. The petitioner had no allotment order in his favour in respect of the shop in dispute. The shop in dispute was owned by Smt. Jeevan Devi, the respondent No. 3, wife of Sardar Wariyan Singh r/o 111-A/19, Ashok Nagar, Kanpur City. The Inspector reported that legally the shop in dispute was vacant. The Rent Control and Eviction Officer issued notices to the petitioner and to the landlady-respondent No. 3, Smt. Jeevan Devi. The petitioner refused to accept notice sent to him by post but subsequently accepted the same through Rent Control Inspector. In the meanwhile the respondent No. 3 also applied for release of the shop in dispute in his favour for personal use and statement/objection, firstly applied for inspection of the building thereafter filed a preliminary objection which was supplemented by another objection. The 1 petitioner's main objection was that it was in the year 1984-85 that first floor and Balcony of the building in question were constructed, therefore, the shop in dispute should also be treated as new building and the provisions of the Act have got no application to it.
(3.) ON the other hand the case of the respondent No. 3 and others contesting respondent was that the shop in dispute was constructed in the year 1962-63 and the same was thereafter let out to Sardar Gurbaksh Singh in the year 1964. Sardar Gurbaksh Singh vacated the shop in dispute and shifted his business to Pratap Ganj, Gaderian Purwa, Kanpur, in the year 1982, thereafter, the shop in dispute was occupied by the petitioner in 1984-85 as the tenant of respondent No. 3 without any order of allotment in his favour, therefore, in view of the provisions of Section 12 of the Act, the shop in dispute was vacant and was liable to be released or allotted in accordance with the provisions of the Act. In support of their respective cases the parties have produced evidence oral and documentary before the respondent No. 1. The contesting respondents have filed the extract of Assessment Register for the years i. e. 1962-68,1968-73,1973-78,1978-87 and 1987-92 to prove that the ground floor of the aforesaid building i. e. 5 shops including the shop in dispute and the other residential portion were constructed in the year 1962-63 and were assessed to house and water tax since then. A copy of the application dated 18. 2. 1992 filed by Sardar Gurbaksh Singh before the Kanpur Development Authority intimating that he has vacated the shop in dispute and shifted his business to Pratap Ganj, Gaderian Purwa, Kanpur. Affidavit of Kuldip Singh, dated 23. 12. 95 to show that he was in occupation of the shop in dispute since 1984-85 independently, proposed plan of the first floor and the receipt of payment of fee issued by Kanpur Development Authority in 1988, The petitioner has also filed affidavit in support of his case and asserted that he was lawful occupant of the shop in dispute and was entitled to continue in occupation. It was also asserted by supplementary objection by the petitioner that in the year 1989 his father, Sardar Gurbaksh Singh, has died. He was, therefore, also entitled to occupy the shop in dispute as his heir and legal representative. From the statement of fact made in the order passed by the Rent Control and Eviction Officer it is apparent that the petitioner had played delaying tactice and has been attempting to delay the disposal of the case by filing frivolous applications and seeking unnecessary adjournment on false and concocted grounds.;