Smt. Pushpa Sand vs Rent Control and Eviction Officer and Another

Sudhir Narain, J.—The Petitioner seeks writ of certiorari quashing the order dated 5.2.1996 passed by Rent Control and Eviction Officer, Respondent No. l, declaring the house in dispute as vacant u/s 12 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).

The Petitioner is a tenant of the house No. 10/419, Khallasi Lines, Kanpur. Respondent No. 2, who is landlady of the house in question, filed S.C.C. Suit No. 609 of 1991 in the court of Judge Small Causes, Kanpur. The suit was decreed ex parte on 9.1.1992. The Petitioner filed an application to set aside the ex parte decree. The ex parte decree has been set aside by order dated 15.2.1995. Respondent No. 2 has filed revision before the District Judge Kanpur which is alleged to be pending. Respondent No. 2 further filed an application for release of the house in dispute u/s 21(1)(a) of the Act in the year 1993 on the ground of bona fide need, which is still pending.

Respondent No. 2 further filed an application for release of the building in question u/s 16(1)(b) of the Act. One Bipin Kumar Pandey also filed an application for allotment on the allegation that the Petitioner is living in House No. 48/152, Generalganj, Kanpur with her husband since June 1992 and the accommodation in question should be deemed as vacant. It was further averred that the Petitioner has acquired House No. 2108 E.W.5., Avas Vikas Colony, Scheme-1, Kalyanpur, Kanpur and has obtained its possession. A notice was issued to the Petitioner and she filed objection. It was stated that before marriage, she belonged to a different caste and, therefore, in-laws of the Petitioner who were very orthodox, did not permit her to live with her husband in the same house.

An affidavit dated 22.10.1994 was filed on behalf of Respondent No. 2 wherein it was stated that the Petitioner has been allotted House No. 2108 E.W.S, Avas Vikas Colony, Scheme-1. Kalyanpur, Kanpur wherein she is residing. The Rent Control and Eviction Officer dropped the proceedings by order dated 23rd March, 1995 on the ground that Respondent No. 2 has filed application u/s 21(1)(a) of the Act which is pending and secondly, the ex parte decree was passed against the Petitioner and the same has been set aside and the matter is pending in the Civil Court. It was observed that after the matter is decided, the application shall be considered and the proceeding is to be dropped.

Respondent No. 2 filed an application on 9th August, 1995 purporting to be under Rule 22 (f) of the Rules framed under the Act for deciding the matter on merits in accordance with law. Respondent No. 1, after considering the case on merits, held that the husband of the Petitioner has got House No. 48/152, Generalganj, Kanpur and the Petitioner is living there since then. It was further found that the Petitioner has been allotted House No. 2108 E.W.S., Avas Vikas Colony, Scheme-1, Kalyanpur, Kanpur and she has also obtained its possession. A report of the Commissioner was submitted which indicated that in the said house, there are two rooms, kitchen, latrine, etc. and the Petitioner can live there. As the Petitioner has acquired the house in the same city, the accommodation in question shall be deemed as vacant under Sub-section (3) of Section 12 of the Act. The Petitioner has challenged this order dated 5.2.1996 in the present writ petition.

I have heard learned counsel for the parties.

Learned counsel for the Petitioner urged that the Rent Control and Eviction Officer had no jurisdiction to review his own order under Rule 22 (f) of the Rules. The order passed by him was final and he has not been conferred with any power of review under any provision of the Act.

The Petitioner has not denied that House No. 2108 E.W.S., Avas Vikas Colony, Scheme-1, Kalyanpur, Kanpur has been allotted to her and she has also obtained its possession. A Commissioner also went to inspect the said house and it was found that it consists of two rooms, kitchen, bathroom, latrine, etc. and there is facility of water, etc. also. It is situated in the Kan pur City. It is also not denied that her husband owns a house No. 48/152, Generalganj, Kanpur. It is also reported that the Petitioner is living in that house since 1992. The contention of the Petitioner was that her in-laws are not permitting her to live in the said house.

As the Petitioner has acquired another house in the same city, it will be deemed as vacant u/s 12(3) of the Act. The Rent Control and Eviction Officer by order dated 23.3.1995 had not decided the question on merit. He had passed an order for dropping the proceeding simply on the ground that Respondent No. 2 had filed an application u/s 21(1)(a) of the Act and, therefore, he has no Jurisdiction to decide as to whether there is vacancy of the disputed house. The view taken by him was manifestly erroneous. The proceeding u/s 21 of the Act does not bar the Rent Control and Eviction Officer to declare an accommodation as vacant if the necessary facts are placed before him which indicate that either there is deemed vacancy or actual vacancy. If the tenant has vacated the accommodation or there is a deemed vacancy under law, it will be open to the Rent Control and Eviction Officer to pass an order releasing the property in question in favour of the landlord or to allot it u/s 16 of the Act. In T.C. Rekhi v. Prescribed Authority, Nainital and Ors. 1983 (2) ARC 223, it has been held that there is no specific bar in the Act prohibiting the landlord from filing application u/s 21(1)(a) of the Act if he has already filed an application u/s 16(1)(b) of the Act. Similarly, when an application has been filed u/s 21(1)(a) of the Act by the landlord, accommodation can be declared as vacant.

The Rent Control and Eviction Officer was Justified in considering the application filed by the landlord under Rule 22 (f) of the Rules to decide the controversy on merits. In Daman Singh and Others Vs. State of Punjab and Others, , it was held that if any ground which was urged by a party and was not considered by the authority concerned, it is open to the party to file proper application for review of the order. Learned counsel for the Petitioner has placed reliance upon the decision Shiv Prakash Agnihotri v. IXth Additional District Judge, Kanpur and Ors. 1982 (2) ARC 461, wherein it was held that the District Judge cannot review his earlier order under this rule. The Court, however, in this very writ petition declined to exercise discretionary Jurisdiction under Article 226 of the Constitution of India because if the order is set aside, it will be maintaining an illegal order passed earlier.

In the present case, the Rent Control and Eviction Officer had dropped proceeding and did not decide the controversy raised before him. He did not adjudicate the question as to whether there was a vacancy. A review of the order which has been passed on merit will not be permissible but when an authority failed to exercise Jurisdiction taking erroneous view of the law or under some misconception of law, it will be open to recall his order and consider the case on merits. Secondly on facts, it is not denied that the Petitioner has been allotted House No. 2108 E.W.S., Avas Vikas Colony, Scheme-1. Kalyanpur. Kanpur and she has obtained possession and her husband also owns House No. 48/152, Generalganj, Kanpur in which he is residing and the Petitioner is also reported to be residing there. On these facts, the house in question shall be deemed as vacant u/s 12 (3) of the Act.

Even if it is held that the Rent Control and Eviction Officer has no Jurisdiction to recall the order but on facts, it has been found that the accommodation in question is vacant, it will not be proper to interfere in order in question.

The writ petition is accordingly dismissed.