Siddhartha Varma, J. - (1.) Heard learned counsel for the parties and perused the record.
(2.) An application for declaring vacancy and for allotment was filed by the respondent Nos. 2 and 3 alleging that the petitioner was an unauthorised occupant. Upon notices being issued, the respondent No.2 & 3 and the petitioner appeared. The respondents stated that the petitioner was an unauthorized occupant as the husband of the respondent No.4 happened to be the tenant and the petitioner had nothing to do with the premises in question and now as the respondent No.4 had purchased the property in question there was a deemed vacancy. However, the petitioner submitted that he had been in possession over the premises in question as his father Devi Prasad Saxena was the tenant of the premises in question since 1962 and he had along with his father and brothers shifted to the accommodation in question as joint tenants. He further submitted that after his father died on 29.10.1972 then by virtue of Section 14 of the U.P. Act No. XIII of 1972, he also became a tenant in the premises in question. When, however, after dealing with the application for vacancy and also the statements of the petitioner and the respondents, the Rent Control & Eviction Officer decided the matter on 10.10.2013 and declared vacancy, the petitioner approached this Court.
(3.) Learned Counsel for the petitioner has submitted and even though the Rent Control & Eviction Officer found that the petitioner had continued to remain in possession over the premises in question and had entered possession over the property in question along with his father, Sri Devi Prasad Saxena and his elder brother Sri Ganesh Prasad, he allowed the application of the respondent Nos. 2 and 3 and declared vacancy simply because respondent No.4, Ramola Rani Saxena had bought the property in question on 02.11.2010. He submits that wrongly, on the basis of the law that if a member of the family had taken up residence by buying a property which was in a vacant state the premises would be declared to the vacant, the order was passed. Learned counsel for the petitioner further submitted that when Ramola Rani Saxena, respondent No.4, had bought the very same property, where she was staying as a tenant then it could not be said that she had bought a residential building in a vacant state in the same City, Municipality, Notified Area, Town Area, in which the building under tenancy was situate. He submits that infact she had bought the very same building in question and had only set up respondent Nos. 2 and 3 to file the allotment application. He further submits that since the respondent No. 4 had bought the property on 02.11.2010, she had also put the petitioner on notice as per the proviso to Section 21 on 06.09.2018, which has been filed by the petitioner by means of a Supplementary Affidavit and, therefore, submits that the respondent No.4 in fact was treating the petitioner to be her own tenant. Only because she was treating him to be her tenant that notice was issued and it could not be said that the petitioner was an unauthorized occupant.;