Raghunath Prasad vs Smt. Krishna Dixit and Others

S.C. Verma, J.—This petition is directed against the order dated 10-1-1987 passed by the IV Additional District Judge, Kanpur Nagar u/s 18 of U.P. Act 13 of 1972, here in after referred to as the ACI. The Matrix of the Act case, in short, is as follows.

Two applications for allotment of Quarter No 47/1 and 52/12 of premises No. 36/51 Ram Das ka Mandir, Chatani Mohal, Kanpur were moved alleging (hat the outgoing tenant Raghu Nath Prasad has removed his belongings and has shifted to his village residence and has locked the premises for the last 8 or 9 months and there is a vacancy. The report of the Rent Control Inspector was also obtained to the same effect. The Rent Control and Eviction Officer issued notices to the outgoing tenant and the landlord. The present Petitioner who was the tenant of the disputed premises filed objections stating that he is the tenant of the disputed premises for the last 20 years and living there in with his brother and family. The premises were never locked nor any enquiry was made by the Rent Control Inspector in his presence and the report is fictitious which is in collusion with the Munim of the landlord. The Petitioner also filed rent receipts and other evidence to indicate that he was in actual occupation of the disputed premises.

The Rent Control and Eviction Officer, after hearing the parties, vide his order dated 31-8-1985 held the Petitioner to be in occupation and further held that the premises were not vacant and open for the purposes of allotment. Respondents Nos. 1 and 2 filed Revision against the order dated 31-8-1985 u/s 18 of the Act The learned Additional District Judge has allowed the revision by the impugned order and set aside the findings with regard to the declaration of vacancy end declared the premises vacant directed the Rent Control and Eviction Officer to consider the case of the applicants for allotment of the premises. The learned judge was of the opinion that the tenant Raghu Nath Prasad was not living in the disputed house for the lait several years and had sublet the same to one Radha Krishna Katiyar who had also constructed his own house and who delivered unauthorised possession to one Ram Narain the Rent Control and Eviction Officer committed manifest error of law in disbelieving the report of the Rent Control and Eviction Officer. Since the tenant has substantially removed his effects and has allowed it to be occupied by Ram Narain who is not member of his family, there would be deemed vacancy.

The aforesaid order dated 19-1-1987 u/s 18 of the Act has been challenged in the present petition only on legal grounds. It has been contended by the learned Counsel for the Petitioner that alter the amendment of Section 18, the scope was greatly changed and the right of appeal has been substituted by a right of Revision on the grounds Identical to those as set out u/s 115 of the Code of Civil Procedure. The order of the Rent Control and Eviction Officer by which it has been declared that there does not exist any vacancy can not be questioned in proceedings u/s 18 of the Act. The Revision provided u/s 18 of the Act is against an order of allotment or release and not against a notification of vacancy The learned Judge has committed manifest error of law in interfering with the findings of fact recorded by the Rent control and Eviction Officer which are neither perverse nor wrong nor there is any error of jurisdiction which may call for interference u/s 18 of the Act.

In support of his contention, the learned Counsel for the Petitioner relied on the case Ganpat Roy and Others Vs. Additional District Magistrate and Others, . The learned Counsel for the Respondent, in spite of the case being squarely covered by the proposition of Jaw laid down in the aforesaid ruling, contested and tried to justify the order of the Revisional Authority regarding declaration of vacancy being a jurisdictional fact and the omission to consider the relevant evidence amounts to illegal exercise of the jurisdiction and as such was rightly interfered u/s 18 of the Act. The learned Counsel in support of his argument cited the decision S. Rama Iyer Vs. Sundarasa Ponnapoondar, , Onkar Nath Avasthi v. V. Addl. District fudge. Bareilly 1985 (1) ARC 358, Satbh Chandra Sharma v. Resident Magistrate, Haridwar 1987 (1) ARC 310, however, in the present case the order by which the findings of fact have been set aside by the Revisional Court does not indicate that they have been set aside on the ground that any preliminary fact upon the existence of which the jurisdiction has been in correctly exercised or the jurisdiction was exercised illegally or with material irregularity. The law laid down in Ganpat Roy''s case (supra) specifically provides.

Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and there after vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to reojudicata. In such an event it would be difficult to say that he can exercise his right of review on the ground that there was no vacancy. This would equally apply where an order of release is made. Further the revision which is provided for u/s 18 is against an order of allotment or release and not against a notification of vacancy and an issue*. Which was concluded earlier and on the basis of the finding on which the District Magistrate bad proceeded to allot or release the premises can not be reagitated in Revision....

In our opinion, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding A petition under Article 226 or 227 of the Constitution filed by such a tenant in order to challenge that finding cannot therefore, be said to be premature.

In view of the aforesaid law laid down by Hon''ble Supreme Court, the setting aside of the findings of fact recorded by the Rent Control and Eviction Officer that there was no vacancy, in proceedings u/s 18 of the Act cannot be upheld. The learned judge committed manifest error of law iii declaring vacancy in exercise of the revisional powers u/s 18 of the Act and remanding the case with direction to consider the allotment applications. The rulings relied upon by the learned Counsel for the Respondents would be deemed to be overruled on this point in view of the Hon''ble Supreme Court itself doubting the law laid down in Tirlok Singh and Co. Vs. District Magistrate, Lucknow and Others, .

For the reasons stated above, the impugned order dated 19-1-1987 passed u/s 18 of the Act is liable to be set aside. The petition thus succeeds, the order dated 19-1-87 is quashed but there shall be no order as to costs. Since there was an interim order in favour of the Petitioner staying his dispossession, no further order is required to be made.