Prakash Krishna, J. - (1.) HEARD Shri Subham Agrawal, learned Counsel for the petitioners and Shri A.B.L. Gour, Senior Advocate for the contesting respondent. Bench Secretary has pointed out that Vakalatnama of Shri Subham Agrawal is not on file. Shri Subham Agrawal states that he has filed Vakalatnama on 10th of November, 2006. Office may trace it out and place on the record.
(2.) IT is not in dispute that Om Prakash, father of the petitioners namely Surendra Kumar and Rajendra Kumar, was the tenant of the disputed shop of which the respondent No. 2, Jamuna Prasad, is the landlord. An application under section 12 of the U.P. Act No. 13 of 1972 was filed by the respondent No. 2, the landlord, on the ground that there is deemed vacancy in as much as the said shop after the death of Om Prakash came in tenancy of Surendra Kumar and subsequently Surendra Kumar sublet it to his brother Rajendra Kumar. A report from Rent Control Inspector was called for who on physical verification reported that the business in disputed shop is being carried on by Rajendra Kumar. On these facts, the Rent Control and Eviction Officer by the impugned order dated 16th of June, 1993 declared the shop in dispute as vacant. Feeling aggrieved against the aforesaid order, the present writ petition has been filed. The learned Counsel for the petitioners in support of writ petition has submitted two points. Firstly, that no opportunity of hearing was afforded to the petitioner on question of vacancy in as much as the Prescribed Authority has heard the miscellaneous application filed by the petitioners to seek further time to bring stay order from higher Court and secondly, that in any view of the matter, the finding of vacancy is vitiated. Elaborating the first point, the learned Counsel for the petitioners referred the order dated 8th of June, 1993 and 9th of June, 1993 (Annexures -8 and 9 to the writ petition). In response, Shri A.B.L. Gour, the learned Senior Counsel, submits that adequate opportunity of hearing was afforded to the petitioners and as a matter of fact, the petitioners were heard on the question of declaring the shop as vacant. He submits that at such a distance of time it would not be proper to interfere with the order passed by the Rent Control and Eviction Officer namely City Magistrate.
(3.) I have given careful consideration to the respective submissions of the learned Counsel for the parties. It appears that on 8th of June, 1993 the petitioners filed an application for grant of time to bring stay order against an order passed earlier by filing revision before the higher Court. On that date the Presiding Officer of the Court was busy in some administrative work and the reader of the Court made entry on the record that let the application be placed on the next date for further proceedings. On the next date i.e. 9th of June, 1993 the following order was passed: - - Aj Patraoli Pesh Pukar Karai Gaee. Pakshakar Va Unke Adhivaktagan Upasthit Hain. Prarthana -patra Di 8.9.1993 Par Donon Pakshon Ko Suna Gaya. Patraoli Vaste Adesh Di. 16.9.1993 Ko Pesh Ho.;