Sibghat Ullah Khan, J. - (1.) HEARD Sri Vinod Sinha, learned Counsel for the petitioner, Sri A.N. Mulla, learned Counsel for the respondent No. 2 and Sri A.K. Gupta learned Counsel for the respondent No. 3 O.N. Singh. The property in dispute is a two room flat situate at first floor of the property bearing No. 26/28, Mahatma Gandhi Marg, Allahabad. Respondent No. 2 C.M. Ghosh Trust is the landlord of the property in dispute. Respondent No. 3 O.N. Singh filed allotment application in respect of the flat in dispute i.e. Flat No. 8 situate at 26/28 Mahatma Gandhi Marg, Allahabad, which was registered as Case No. 25 of 2001. It is admitted to the petitioner that his father was the tenant of the flat in dispute, however, father of the petitioner purchased a house at J.L.N. Road, Allahabad on 3.8.1978 and shifted with the entire family at the newly purchased house. According to the petitioner his fattier continued to use the flat in dispute for music coaching classes. Rent Control Inspector at the time of inspection found that musical instruments were lying there in the flat in question. Landlord and respondent No. 3, applicant for allotment asserted that music coaching was not being carried from the flat in dispute. Rent Control and Eviction Officer -I, Allahabad through order dated 25.8.2004 declared the house in dispute as vacant. The said order has been challenged through this writ petition. Rent Control and Eviction Officer -I, concluded that for years house in dispute was kept locked, hence it was vacant.
(2.) LEARNED Counsel for the landlord -respondent No. 2 has categorically stated that the landlord supports the case of the petitioner and asserts that there is no vacancy. I have held in Rajdhari v. Smt. Ranjana Gupta and another : 2006 (63) ALR 677 that allotment/release applications under section 16 of the Act cannot be filed after 12 years of vacancy. In the instant case the alleged vacancy occurred in the year 1978 and allotment application was filed in 2001 i.e. after 23 years. Accordingly allotment application was not maintainable and was barred by time.
(3.) IN view of the above, writ petition is allowed, the impugned order declaring vacancy is set aside.;