V.K.SHUKLA, J. - (1.) JYOTI Prasad has approached this Court questioning the validity of the order dated 7.7.1988 passed by Rent Control and Eviction Officer directing release of the premises in question in favour of the landlord exercise of its authority vested under section 16 of U.P. Act No. XIII of 1972 and order of its affordance dated 12.12.1996 passed by 3rd Additional District Judge, Agra in Revision No. 20 of 1991.
(2.) PETITIONER has been tenant of shop No. 14/34-A/1-6 Phawara Hospital Road Agra. Qua the said premises in question one Bijendra Singh Parmar moved application contending therein that premises in question is lying locked and thus, there is deemed vacancy of the premises in question. On the said ap­plication being moved Rent Control and Eviction Officer was asked to submit its report. There after Rent Control Inspector went on the spot and submitted its re­port. Along with said report submitted statement of Ravi Prakash Agarwal and Ramesh Chandra Jain that inspection was carried out by the Rent Control Inspector in their presence and it was found that said shop in question was closed was also appended. Rent Control Inspector on 29.1.1987 had submitted report and clearly mentioned therein that before taking decision respective parties be heard. After said report in question has been submitted notices were issued but neither landlord nor sitting tenant entered appearance to answer to the same on the first call as such another notice was send. Senior Rent Control Inspector again made inspection of the premises on 25.3.1988. On the said date during repeat inspection, shop in question was found closed and in the front of the said shop one sugar cane crushing machine was found and it has been in­formed by neighbour shopkeeper that Jyoti Prasad has closed the shop for last 5 and 6 years. On 24.5.1988 order was passed declaring the vacancy. After said order has been passed application was moved for setting aside of ex parte or­der. Said order was set aside and release application had come forward on be­half of landlord. Landlord made specific statement that tenant has taken away entire article from the shop in question and locked the shop in question. During the course of the said proceedings after scrutinizing the facts mentioned in release application Rent Control and Eviction Officer found need of landlord to be bona fide and genuine one, and directives were issued for releasing of the shop in question. After said order was passed directing release of the premises in question possession pursuant to the same was taken on 15.3.1990 by the land­lord. Tenant-petitioner thereafter moved application for review of the said order and as far as review application is concerned no order has been passed on the same. However application under section 5 of the Limitation Act was moved along with the revision preferred under section 18 of U.P. Act No. XIII of 1972 and detailed order was passed condoning the delay and thereafter revi­sion itself has been taken and decided on merit. Said revision has been dis­missed on 12.12.1996. At this juncture present writ petition has been filed. Counter-affidavit has been filed mentioning therein that shop in ques­tion is situated in prime commercial locality of Agra the hub of entire medicine, jewellery, electronics, college books stationery and garments business of the Agra. It has been stated that after shop in question was vacated same is being used by the landlord for earning their livelihood and after death of her husband on 11.1.1999, the respondent No. 3/1 is all alone running S.T.D. Booth and photo stat center therein to earn her livelihood as there is no male member in the family. It has also been stated that earlier petitioner was carrying on business of medicine store under the name and style of M/s United Chemists in partnership with his elder brother Sri Shital Prasad Gupta and said business was closed by them in or about the year 1979-80 and their entire stock was re­moved by the tenant and the shop was lying closed dumped with expired medicines, empty almirah etc. and the shop in question was illegally retained by the tenant to induct therein unauthorized occupant and to earn huge premium from him as it was very valuable property. The factum of closure of the business since 1979-80 was admitted by Sri S.P. Gupta the brother and partner of the pe­titioner in the shop in question himself in his statement before the sales tax au­thority on 11.3.1981 on the basis of which the final assessment order was made by the sales tax authorities. It has been further contended that Brijendra Singh Parmar is own man of the petitioner and this was the reason notice issued to the landlord were returned as incomplete address of landlord. It has been stated that inspection was made by Rent Control Inspector behind the back of the landlord and it was found that the shop in question was lying closed for a long time same was declared vacant. It has also been contended by the landlord that when he acquired knowledge of the said proceedings, landlord made an appli­cation for recall of the ex parte order against him. It has been further contended that order to proceed ex parte against landlord, was recalled. It has also been stated that possession of the shop was taken on 15.3.1990 and inventory was prepared of the goods lying in the shop. Photocopy of the same would go to show that entire stock was of expired medicines and in order to defraud this Court deliberately said endorsements have been removed while preparing pho­tocopies of the same. It has also been stated that valid proceedings have been undertaken qua release of the shop in question.
(3.) REJOINDER affidavit has been filed disputing the averments mentioned in the counter-affidavit and reiterating the averments mentioned in the writ petition. It has been stated that size of the disputed shop is six ft. wide and four ft. deep and further it has been sought to be contended that only whole sale business has been closed down and retail sale of medicine continued till 1990 in disputed shop when he was forcibly dispossessed under the ex parte order of re­lease dated 7.7.1988. It has also been contended that entire proceedings are out come of manipulation and maneuvering and inter se parties J.S.C.C. No. 49 of 1980 was on going wherein complete address was provided for and landlord was well aware of depositing of the rent up to 31.3.1990 which was deposited on 19.1.1990. In this background it has been sought to be contended proceedings are illegal and are ex parte to petitioner.;