D.P. Singh, J. - (1.) HEARD Counsel for the petitioner and Sri P.K. Jain, Senior Advocate assisted by Sri Shamshad Ali for the respondent.
(2.) THIS petition is directed against an order dated 6.1.2007 rejecting the application of the petitioner for appointment of a Commissioner and the order dated 30.4.2007 by which the disputed premises has been declared vacant un der U.P. Act No. XIII of 1972 (here-in-after referred to as the Act). The petitioner is a tenant of house No. 269, Meerpur Cantt. in Kanpur Nagar since 1960 and at the relevant time he was paying Rs. 17/- per month as rent where he along with other family members were residing. After purchase of the property by the respondent-landlord, he started to prosecute the appli cation for release under section 21 (1) (a) of the Act filed by the earlier land lord. During its pendency, he filed the release application under section 16 (1) (b) of the Act claiming that the petitioner-tenant has acquired certain other accommodation and thus, claimed deemed vacancy. The aforesaid case was reg istered as Case No. 34 of 2006 where the petitioner filed his objection and reply stating that the said property No. 208, Meerpur Cantt. was a non-residential property and that his daughter-in-law had been allotted a room in the Nurses Hostel. During the pendency of the proceedings, he made an application for appointment of an Advocate Commissioner to submit a report with regard to the nature of the premises No. 288, Meerpur Cantt. Kanpur. The said applica tion was rejected and thereafter the release application has been allowed. It is apparent from the release order that the Court below has substan tially relied upon the fact that in the sale deed with regard to premises No. 288, Meerpur Cantt., Kanpur stamp duty had been paid for residential purposes and therefore, it held that it was a residential house. It also found that the petitioner has not filed any licence or trade tax registration etc.
(3.) BE it so, assuming that the petitioner had incorrectly paid stamp duty by changing the nature of the said property and did not get any registration etc. if it was a commercial building, but that by itself would not be determinative of the usage of the premises. It is the consistent case of the petitioner that the said premises was non-residential and in fact the family members were found to be residing in the disputed premises when the Inspector had visited it. The pe titioner rightly had moved an application for appointment of a Commissioner to submit a report with regard to premises No. 288, Meerpur Cantt. but the rea sons given by the Rent Control and Eviction Officer for rejecting the application for appointment of Advocate Commissioner was incorrect as no other reports with regard to the said property were ever submitted in these proceedings. For the reasons above, this petition succeeds and is allowed and the impugned orders dated 6.1.2007 and 30.4.2007 are hereby quashed.;