- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) THIS writ petition is directed against vacancy declaration order dated 1. 11. 1999 passed by Rent Control and Eviction Officer/a. C. M. (III), Kanpur in Case No. 48 of 1998 Mohd. Naseer v. Smt. Malika Khatoon. Property in dispute consists of one room, veranda, aangan and latrine situate on the ground floor. Initially Mehmood Khan father of petitioner Smt. Malika Khatoon was tenant in the accommodation in dispute who died in the year 1975 leaving behind only two daughters i. e. the petitioner and Smt. Shahina. Petitioner stated that Smt. Shahina was residing alongwith her husband in another house and petitioner alongwith her husband was residing in the house in dis pute. It was further stated that mother of the petitioner had also died in the year 1996. Rent of the accommodation in dispute is Rs. 10/- per month. R. C. ande. O. has given a very strange reason for declaring the vacancy. R. C. ande. O. accepted the version of the petitioner that petitioner was married in the year 1978. However, R. C. ande. O. held that as she did not file any written evidence to show that she was in possession since before 1976 and from electoral list filed by the petitioner it was clear that her name was entered since 1988 hence it was proved that she was not residing in the said house before 1988. Petitioner is daughter of the original tenant. She was unmarried when original tenant died. There is absolutely no question of her residing anywhere else to file any written evidence. It was for the landlord or the applicant for allotment to show that she was not residing with her father when he died. The impugned order declaring vacancy is utterly erroneous in law and cannot be sustained.
(3.) WRIT petition is accordingly, allowed. Impugned order is set aside and it is declared that there is no vacancy and petitioner is valid tenant of the ac commodation in dispute. I have held in Khursheeda v. A. D. J. , 2004 (55) ALR 586 and H. M. Kitchlu v. A. D. J. , 2004 (2) ARC 652 that while granting relief against eviction to the tenant in respect of building cov ered by Rent Control Act or while maintaining the said relief already granted by the Courts below, Writ Court is empowered to enhance the rent to a reason able extent.;