Prakash Krishna, J.@mdashThe present writ petition is directed against the order dated December 6 2001 passed by the Additional District
Magistrate (Supplies)/Rent Control and Eviction Officer, in Case No. 69 of 1999, with respect of the house No. C-08/99 Chetganj, Varanasi,
declaring the accommodation in question as vacant in proceedings u/s 16(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972 (hereinafter referred to as U.P. Act No. 13 of 1972).
2. The Petitioner claims himself as tenant of a shop on the ground floor of premises No. C-08/99, Chetganj, Varanasi, since before 1972. An
application for release of the said shop u/s 16(1)(b) of the Act was filed by Smt. Asha Devi, Respondent No. 1 herein claiming herself as owner
and landlord of the said shop on the pleas inter alia that initially the shop in question was in the tenancy of one Narain Das since before 1972 who
died in the year 1980 and thereafter the present Petitioner has come into possession, who is brother-in-law of Narain Das (deceased) of the said
shop. It was stated that there is a vacancy under the provisions of U.P. Act No. 13 of 1972 as the Petitioner is in occupation of the disputed shop
without an allotment order. It was so held in S.C.C. Suit No. 77 of 1997, decided on 6th of August, 1999.
3. It is not necessary for the purposes of disposal of the present writ petition to notice the allegations of the Respondent No. 1 with regard to her
bona fide need in view of the order proposed to be passed in the present writ petition. The said application particularly as to whether there is a
vacancy in the shop in question was contested by the present Petitioner denying the contention of the Respondent No. 1 that he is an unauthorised
occupant with the plea that he is in possession of the disputed shop as tenant with the consent of the landlady prior to 5th of July, 1976, which is a
cut-off date as provided in the said Act.
4. The Respondent No. 2 by the impugned order dated December 6 2001, declared the shop in question as vacant on the finding that the
occupation of the Petitioner over the disputed shop is unauthorised one.
5. Heard Shri S. N. Mishra, the learned Counsel for the Petitioner and Shri Prakash Padia, the learned Counsel for the Respondent No. 1 and the
learned standing counsel for the Respondent No. 2. It was contended on behalf of the Petitioner that the finding recorded by the Rent Control and
Eviction Officer on the question of vacancy and holding that the Petitioner is unauthorised one is against the provisions of Section 14 of the said
Act. The learned Counsel for the Respondents supported the impugned order.
6. On a bare perusal of the impugned order, it is clear that the Rent Control and Eviction Officer has taken into consideration the facts and
circumstances of the case, such as municipal assessment since 1st of April, 1976, receipt issued by the electricity department dated 9th of June,
1973, wherein name of the Petitioner is mentioned, other receipt dated 3rd of August, 1973, 6.4.1974 and 31st of January 2001, the registration
certificate issued by the labour department of the year 1976 etc. and reached to the conclusion that the Petitioner has been in occupation of the
disputed premises since before the cut-off date, i.e., 5th of July, 1976. The vacancy was declared on the ground that there is no material on record
to show that possession of the Petitioner prior to 5.7.1976 was with the consent of the landlady. In this connection, it is relevant to extract Section
14 of the Act which reads as follows:
14. Regularisation of occupation of existing tenants.-Notwithstanding anything contained in this Act or any other law for the time being in force, any
licensee (within the meaning of Section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the
commencement of the Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person
against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to
be an authorised licensee or tenant of such building.
7. On a plain reading of Section 14, it is quite apparent that besides the other things, occupation of a person who is in possession of premises on or
before 5th of July, 1976, would be treated as regularised provided such occupation was with the consent of the landlord. The question which
immediately arises is as to whether the ''consent'' is express or implied. Section 14 does not provide that the consent should be express or in
writing. Legislatures wherever thought fit have made provision where express consent of landlord or consent in writing, is required. Reference can
be made to Section 20(2)(d) of the Act wherein it has been provided that a tenant is required to have consent in writing of the landlord for using
the premises for a purpose other than the purpose for which he was admitted to the tenancy of building. Similarly, u/s 25(2) written permission of
the landlord and of the District Magistrate has been statutorily provided to sublet a part of the building. On examination of the scheme of U.P. Act
No. 13 of 1972, an inference can be drawn that wherever express consent is required a provision has been made therein. In absence of
requirement of express consent, the consent u/s 14 will include implied consent also.
8. Coming to the facts of the case on hand, it is clear that the Petitioner has been in occupation since before 5th of July, 1976, as found by the Rent
Control and Eviction Officer. The payment and acceptance of rent as also payment of electricity dues are the facts indicative of implied consent of
the landlord. The non-action of the landlord for not taking steps for more than two decades against the Petitioner treating him as unauthorised
occupant also shows intention of the landlord not to treat the Petitioner as an unauthorised occupant. Inference of implied consent in the facts and
circumstances of the case has to be drawn. It appears that the Rent Control and Eviction Officer proceeded to decide question of vacancy with a
view that there should be an express consent which is on incorrect interpretation of Section 14, is incorrect.
9. But there is another aspect of the case yet. No finding in what capacity the Petitioner is in occupation has been recorded. It has to be
ascertained that the Petitioner was in occupation prior to 5.7.1976, as ""a tenant"" and not as a licensee of the erstwhile tenant Narain Das
(deceased), who died in the year 1980. The nature of the Petitioner''s possession prior to 5.7.1976, and payment of rent etc., if any made by him,
is to be examined. The case was not examined from this angle. It is expedient to remand it to the Rent Control and Eviction Officer for recording
necessary findings on the other ingredients of Section 14 of the Act, before extending the benefit of Section 14 of the Act.
10. There has been civil litigation (Suit No. 77 of 1997 and Suit No. 1392 of 1996) between the parties and the application giving rise to the
present writ petition was filed in the year 1999 and the Petitioner is in occupation of the disputed shop on payment of a nominal rent of Rs. 100 per
month which is virtually no rent looking to the cost index. The prices of, immovable properties are sky-rocketed these days. To meet the ends of
justice, it is expedient to direct the Petitioner to pay Rs. 2,000 as rent/damages for its use and occupation commencing from May 2007 till the
continuance of possession by 7th of each succeeding month. The shop in dispute is two khani, i.e., it consists of two compartment and two doors
and in situate in densely populated area namely Chetganj, i.e., at the heart of the city Varanasi. The injunction order or any interim order which may
be operative in favour of the Petitioner, passed by any Court, subordinate to High Court hitherto shall be subject to the above condition.
11. Viewed from any angle, the impugned order cannot be sustained and it is indefensible.
12. In the result, subject to what has been said above the writ petition succeeds and the impugned order is quashed and the matter is restored to
the Rent Control and Eviction Officer to rehear and redecide it again preferably within a period of four months from the date of the receipt of this
order. No order as to costs.