- (1.) SHITLA Prasad Srivastava, J. This writ petition under Article 226 of the Con stitution of India has been filed by the petitioner for quashing the order dated 23-11-1994 passed by the Rent Control and Eviction Officer, Mathura, hereinafter referred to as R. C. E. O. only. The judgment of the R. C. E. O. has been filed as Annexure 21 to the writ petition. The second relief claimed by the petitioner is for issuing mandamus commanding the respondents not to interfere with the pos session of the petitioner.
(2.) THE relevant facts for the purpose of the present writ petition are that the dispute arose in respect of shop Nos. 1, 2 and 5 situated in Mohalla Goverdhan Dar-waza, Brindaban. THE petitioner was oc cupying these shops as a tenant. Landlord Mool Kishore Goswami filed three ap plications separately in respect of each shop under Sections 12/16 of U. P. Act No. 13 of 1972, hereinafter, referred to as the Act only. In these applications it were mentioned that provisions of the Act are applicable and the petitioner is an un authorised occupant as he is living without any order of allotment. THErefore, legally the shops are vacant. It was also stated that the son of the landlord is unemployed, therefore, he wants to establish his son in theshopno. 1. The second applications was filed in respect of shop No. 2. In this application the landlord stated that he is a Govern ment servant and his retirement is near at hand and he wants to establish some business in shop Nos. 2 and 5 after his retire ment. The third application was in respect of shop No. 5 mainly on the same ground and it was prayed in all these applications that the vacancy be declared and then it may be released in favour of the landlord. The petitioner contested these ap plication on number of grounds. The main grounds of defence was that the petitioner is not an unauthorised occupant of the shop in question; provisions of the Act are not applicable to the shop in question. It is stated that he was a tenant and was paying rent to the landlord but when he refused to accept the rent was remitted through money order which was also not accepted by the landlord and then the petitioner deposited the rent under Section 30 of the Act, He also denied that the landlord's son is unemployed. In additional plea petitioner has stated that shop Nos. 1 and 2 are combined shops and with the consent of the landlord the petitioner is a tenant of those shops on payment of rent of Rs. 200/-per month. The disputed shop was con structed in the year 1984, therefore, the provisions of Act are not applicable. The petitioner is running the shop of religious books etc. and has earned a good will and there is no need to these shops to the landlord. It appears that a commission was also issued in this case by the Prescribed Authority. The Commissioner has sub mitted his report. It is stated by the petitioner that he filed objection against the report of the Commissioner on the ground that the Advocate who has been appointed Court Commissioner is junior of the Counsel for the landlord. An af fidavit was also filed to this effect by the tenant Munna Lai. That affidavit has been filed as Annexure 11 to the writ petition. The petitioner has also filed rent receipts, and certified copy of the extract of assess ment register to prove that he was tenant with t|se consent of the landlord and the shop was assessed on a particular date, therefore, on the date of the application the Act is not applicable. The report of the Commissioner is Annexure 14 to the writ petition. The Commissioner has reported that he recorded the statement of the petitioner and the witnesses Radha Krish na and Sunder Lai on the spot and no allotment order was shown by the petitioner. The objection of the petitioner against the report of the Commissioner is also on record wherein he has reiterated that the Advocate Commissioner Sri Shobh Raj Singh is Junior to Sri R. P. Chaturvedi, Advocate of the landlord and his appointment is purposive. Rejoinder affidavit has been filed by the landlord to the effect that no new construction was made rather only some alterations were made and the construction is old one, therefore, the provisions of the Act are applicable.
(3.) THE R. C. E. O. has considered the statements of the witnesses and held that since the petitioner himself deposit the rent under Section 30 of the Act in the court of Munsif, Mathura which is ad mitted to him, therefore, the provisions of Rent Control Act were applicable to the building in question and as there was no allotment in his favour the tenancy will be illegal under Sections 11 and 13 of the Act and it would be deemed to be vacant under Section 12 of the Act. He accordingly declared the vacancy by order dated 23-11-1994. THE petitioner has challenged this order in this writ petition. A counter-affidavit has been filed on behalf of the landlord. Rejoinder, sup plementary counter, supplementary rejoinder affidavits have also been filed. In the counter affidavit it is stated that as the petitioner deposited the rent under Sec tion 30 of the Act he cannot say that the provisions of the Act are not applicable or that it was filed under wrong advice. It is also stated that objection against the Commissioner's report was considered and even if the report is ignored there is no other evidence that the construction is new one. It is also stated that the R. C. E. O. has also held that the building was con structed in the year 1964. The finding is not perverse. It is also stated that after the declaration of the vacancy the shops were also released in favour of the landlord and while releasing the shops the R. C. E. O. has held that the petitioner has got more than-40 shops in his possession and has a market in the name of his wife and has let out most of the shop at fancy rent. In supplementary affidavit of the petitioner he has stated that papers filed alongwith the affidavit which amounts to the admission of the landlord as well as the statement of the landlord which was filed alongwith the Commissioner's report, are not available on record of the court below. It is stated that an application to this effect was filed before the R. C. E. O. but the authorities are sleeping over the matter and are not able to trace out the same filed alongwith the supplementary affidavit. In the rejoinder affidavit it is stated that the petitioner filed revision against the order of releasing the shop in dispute. He also filed some documents alongwith this rejoinder affidavit which were not filed before the R. C. E. O. alleging it to be the admission of the landlord that the shop was let Out after construction. It is also stated that he filed receipt of a sum of Rs. 4,500/- which was paid by him for the con struction of the shop as non-refundable amount but this receipt has been ignored by the R. C. E. O. It is also stated that Municipal Assessment has also been ig nored. The first assessment was of 1-4-1995. Therefore, this document was relevant. Supplementary affidavit alongwith assessment register has also been filed by the petitioner to prove the construction of the building. The landlord has also filed supplementary counter-af fidavit to the effect that the tenant has got more than 40 shops in the name of his wife. He has annexed copy of the assessment register. In reply to this supplementary counter-affidavit of the landlord the petitioner has filed supplementary rejoinder affidavit. It is stated that there are 8 shops which were constructed by the wife of the petitioner. Some of the affidavit on record are also on the point of age of the construction.;