S.D.Agarwala - (1.) -This is a petition under Article 226 of the Constitution of India arising out of proceedings under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).
(2.) THE property in dispute is a shop in house no. 86, Bhusauli Tola, Allahabad. THE case of the petitioner is that he is carrying on the business of a tea stall in the said shop for the last several years and that he occupied the premises before the coming into force of the Act. One Kishan Chand, who died during the pendency of the writ petition in this Court and whose heirs have been substituted, filed an application for allotment stating therein that the shop is lying vacant and, consequently, the same be allotted to him. The application was made by Kishan Chand on 17th January, 1979. In view of the application made by Kishan Chand, the Rent Control Inspector visited the premises and submitted his report on 5th February, 1979. On a consideration of the report of the Inspector and the other evidence on the record, the Rent Control and Eviction Officer by an order dated 22nd July, 1981, held that the petitioner was not occupying the premises before 5th July, 1976. He also held that the consent of the landlord had not been proved. In consequence of this finding, it was further held that the petitioner was an unauthorised occupant after 5th July, 1976, and, therefore, the property was declared vacant. Thereafter, a release application has also been filed by the landlord the Rent Control and Eviction Officer considered the release application as well as the allotment application. The release application was rejected by order dated 18th November, 1981, on the ground that the need of the landlord was not bona fide. So far as the question of allotment was concerned, the application of Kishan Chand was considered and, thereafter, it was directed that the property be allotted to him, as he was the first applicant. Against the order of allotment dated 18th November, 1981, the petitioner filed a revision. This revision was dismissed on 22nd December, 1983. The petitioner has now challenged the orders dated 22nd July, 1981 and 18th November, 1981, as well as the revisional order dated 22nd February, 1983, by means of the present writ petition. I have heard the learned counsel for the parties.
(3.) LEARNED counsel for the petitioner has raised two contentions before me. His first contention is that he is a tenant in occupation of the shop in question with the consent of the landlord prior to 5th July, 1976, and, as such, he cannot be deemed to be an unauthorised occupant and, as such, the order declaring vacancy of the property is not an order valid in law. The second submission of the learned counsel is that even if the property is declared to be vacant, his case for allotment should, however, have been considered by the Rent Control and Eviction Officer and since his case has not been considered, the order is vitiated in law. In support of his first contention, the learned counsel for the petitioner has filed a supplementary affidavit on 12th May, 1988, in this Court wherein he has stated that he has been paying rent to the landlord, Nachal Das, respondent no. 4 and he has also been depositing rent under section 30 of the Act. In paragraph 2 of the said supplementary affidavit, it has been stated that rent has been paid from 1st November, 1978, on wards. There is nothing on the record to establish that any rent had been paid prior to the period 1st July, 1976. In the circumstances, it cannot be held that the petitioner was in occupation of the building prior to 5th July, 1976, with the consent of the landlord. In such circumstances, it cannot possibly be said that the order passed by the Rent Control and Eviction Officer on 2?nd July, 1981, declaring vacancy is, in any way, invalid.;