Sudhir Narain, J.@mdashThis writ petition is directed against the order dated 2812000 declaring the disputed accommodation as vacant and
thereafter passing an order releasing the disputed accommodation and rejecting the application of the petitioner for recalling the order dated
2812000 on 1622000.
2. Briefly stated the facts arc that the petitioner is alleged to have let out the disputed premises in the year 199394 of which respondent No. 2 Smt.
Amita Das Sharma is landlady. She filed an application for release of the disputed accommodation stating that the petitioner was in possession
without an allotment order and it should be treated as vacant. The petitioner filed an objection alleging that the provisions of Act No. 13 of 1972
were not applicable; firstly, for the reason that the disputed accommodation was let out on Rs. 3,000/ per month and secondly, it was constructed
in the year 1989 and the provisions of the Act were not applicable. The Rent Control and Eviction Officer passed an order on 2182000 holding
that as the petitioner himself admitted that he was let out the accommodation in 1994 he shall be treated in unauthorised occupation without any
order of allotment being passed in his favour. His possession shall be treated in violation of Section 11 read with Section 13 of Act No. 13 of
1972. The petitioner filed an application to recall the said order slating the reasons why the petitioner or his Counsel could not appear in the said
case. Respondent No. 1, rejected the application on 1622000.
3. 1 have heard Sri M.K. Gupta, learned Counsel for the petitioner and Sri K.K. Arora learned Counsel for the respondent.
4. Learned Counselor the petitioner contended that the petitioner had filed an application lo recall the ex pane order dated 2812000 giving the
facts as to whyhe could not appear on the said date. The respondent No. 1 noted the facts stated in the application and objection of respondent
No. 3 thereon but without any finding but on the averments made by the petitioner proceeded to decide the application in regard to merits of the
case.
5. Sri K.K. Arora, learned Counsel for the respondent, contended that the application shall be deemed to have been allowed as respondent No. 1
noted the arguments raised in respect of merits of the case and has recorded his own finding. It is not necessary to go into the question as to
whether the petitioner was justified to remain absent on the date when the ease was taken up on the date of he ring as the Rent Control and
Eviction Officer has decided the controversies raised by the parties.
6. There were two objections raised by the petitioner on merits. Firstly, that the provisions of Act No. 13 of 1972 were not applicable as the
accommodation was let out at Rs. 3,000/ per month. The petitioner''s version was that the rent was Rs. 500/ per month. He himself had filed a suit
for injunction against the landlordrespondent stating that the rent was Rs. 500/ per month and in this writ petition also he did not state that the rent
is Rs. 3,000/ per month. His contention is that the respondent No. 3 had filed a suit and in that rent was claimed at Rs. 3,000/ per month. The
Court had never accepted that the rent of the premises in question was Rs. 3,000/ per month. The mere averment of respondent No. 3 in the suit
that the rent was Rs. 3,000/ per month was itself not conclusive to determine the rate of rent. Respondent No. 3 during the pendency of the
proceedings had filed an application for amendment categorically slating that the rent of the premises is Rs. 500/ per month. In view of these facts
the rent of the premises having determined at Rs. 500/per month, it cannot be held that the provisions of Act No. 13 of 1972 will not be applicable
on this ground.
7. The next contention of the learned Counsel for the petitioner is that the disputed premises was constructed in the year 1989 and therefore, the
provisions of the Act will not be applicable. The petitioner appears to have filed a map alleged to have been duly sanctioned by the municipal
authorities and it was contended that the construction was made according to be sanctioned map. The contention of respondent No. 3 was that the
construction was not made in accordance with the map and itwas made prior to the year 1989. Respondent No 1 considered this aspect and
recorded a finding that the shop in question was constructed prior to the year 1989 and the provisions of the Act were applicable. It, however, did
not refer to the evidence on record led by the parties on this question.
8. In view of the above the writ petition is allowed. The Rent Control and Eviction Officer shall determine the question of date of construction of
the premises in question in accordance with law within two months from the date of production of a certified copy of this order. It will, however,
be open to the parties to lead evidence on the date of completion of construction.
9. It is made clear if the accommodation in question is treated as vacant, the order of release as passed by the Rent Control and Eviction Officer
shall be treated as affirmed.
10. Learned Counsel for the petitioner states that he has been directed to vacate the possession. The petitioner shall not be evicted till the matter is
decided by the Rent Control and Eviction Officer. Petition allowed.