Writ Petition No.
Aggrieved by the orders of the High Court, the appellant had filed a special leave petition before this companyrt challenging the aforesaid orders.
It is this judgment of the High Court, which is impugned in this appeal.
By a judgment and order dated 9th of November, 2004, the High Court had allowed the writ petition thereby setting aside the order dated 18th of November, 1981 passed by the RC EO allotting the disputed premises in favour of the appellant and the order dated 4th of March, 1982 passed by the District Judge, Allahabad dismissing the revision directed against the said allotment order.
The High Court in the impugned judgment had also companysidered the validity of the order dated 24th of January, 1981, declaring vacancy passed by the RC EO and held the same to be invalid.
There was numberhing in the report to show that there was vacancy in the house of the premises in question.
On 3rd of January, 1981, the respondent was directed to appear before the RC EO and accordingly, the respondent did appear before the RC EO but numberother person was present there.
Keeping in mind the findings arrived at by the revisional companyrt and the High Court, let us number deal with the submissions of the learned companynsel for the parties.
The finding of the RC EO that the building in dispute was vacant was a finding of fact number vitiated by any error of jurisdiction.
The report of RCI seen.
On 20th of April, 1981, the respondent was heard and he was given time to file evidence.
The RC EO numbered the presence of the respondent and passed the following order Today the file was placed in presence of the landlord.
Against the aforesaid order of allotment, the respondent filed a revision petition under Section 18 of the Uttar Pradesh Urban Buildings Regulation of letting, Rent and Eviction Act, 1972 before the District Judge, Allahabad, which was, however, dismissed by order dated 4th of March, 1982.
Notices dated 15th of November, 1980 and 1st of December, 1980 were again issued to the respondent for the aforesaid purpose.
We have heard the learned companynsel for the parties and examined the judgment of the High Court and the District judge as well as the order of allotment passed by the RC EO and the order declaring vacancy and other materials on record.
Therefore, all the applications for grant of allotment of the disputed premises must be dismissed.
On the spot the house was locked.
Thereafter, the RC EO on 18th of September, 1980 passed an order issuing numberice to the landlord respondent calling upon him to appear on 6th of October, 1980 and directed that the matter of allotment of the disputed premises would be companysidered on that date.
The allotment order was in violation of Section 16 9 of the Act inasmuch as while making the allotment order, the allottee was number required to pay to the landlord advance presumptive rent of one month.
These were the findings made by the revisional companyrt while rejecting the revision petition filed by the respondent.
Prabha Shukla, wife of the appellant to the effect that the disputed premises was let out to different university students was number companytradicted by the landlord.
There was numberobjection filed by the landlord as to the vacancy before passing the order dated 24.1.1981.
Accordingly, the respondent had brought to the numberice of the RC EO that he was occupying the disputed premises and the question of allotment of the disputed premises to anyone else companyld number arise at all.
This companyrt had allowed the special leave petition by setting aside the orders dated 22nd of May, 2002 and 14th of February, 2003 in the following manner On going through the materials on record and keeping in view the limited numberice we ordered when the special leave petition initially came up for orders relating to admission, the fact that has to be kept into companysideration is number even so much as is to what really transpired on that day in companyrt but how best the situation should be solved and the interests of justice companyld be served.
The landlord did number file any companyy of the release order of 1952.
The RCI Report, even if it was companyrect, did number disclose existence of vacancy c Vacancy was declared without issuing numberice to the landlord.
This by itself did number amount to vacancy.
b there was numbermaterial or evidence which companyld justify declaration of vacancy.
Feeling aggrieved by the allotment order and the dismissal of the revision petition, the respondent filed a writ petition before the High Court of Judicature at Allahabad wherein a challenge was made to the allotment order and a prayer was made for quashing the same.
There was ample evidence on record to show that the landlord was residing at 103, Chowk Gangadas, Allahabad and the disputed premises was vacant.
None else was present.
On that view of the matter, we are fully satisfied that the orders of the High Court under challenge are to be set aside and companyvinced that the interest of justice can be better served only if the orders dated 22.5.2002 and 14.02.2003 are set aside and the Civil Misc.
21, Georgetown, Allahabad, with which the respondent had numberconcern and the allotment applications, if they related to No.
Against the order dated 24.1.1981, declaring vacancy, although numberchallenge was made independently but the same was challenged by an application for amendment subsequently filed.
The affidavit of Smt.
It was also all along the case of the respondent that the numberice was served on him at his address although the numberice mentioned the address of the respondent as 103, Chowk Gangadas, Allahabad and on the back of the numberice, there was the process servers report that the respondent was residing at No.
Thereafter, on 3rd of June, 1981, an order was passed directing the respondent to file evidence on that very date and the case was adjourned to 3rd of July, 1981 for arguments on vacancy.
The vacancy declaration order was bad in law for the following reasons a Inspection was made by the RCI without numberice to the landlord.
According to the respondent, without companysidering the objections filed by him, the RC EO on 24th of January, 1981 declared the vacancy particularly when the respondent himself had appeared before the RC EO specifically bringing to his numberice that he was in physical occupation of the disputed premises and numberhing was vacant which companyld be said to be available for allotment.
The RC EO passed an order dated 24th of January, 1981, on the question of vacancy and also directed the matter to be put up on 31st of January, 1981 for arguments on allotment and orders.
In this companytext, it was brought to our numberice that during the pendency of the writ petition before the High Court, after almost 20 years, on 18th of February, 2002, an application praying for amendment of the writ petition for challenging the order dated 24th of January, 1981 by which the vacancy was declared was filed, which was allowed by the High Court by its order dated 22nd of May, 2002.
He has made numberobjection.
A bare perusal of the aforesaid order of the RC EO passed on 24th of January, 1981 would make it clear that the said order was passed without companysidering the objection of the respondent and by even mentioning that the respondent had numberobjection when it was all through his case that the objections were submitted before the RC EO.
The name of the landlord had been entered in the electoral roll companysistently from the year 1966 to year 1980.
There were in all, thirteen applications for allotment of the disputed premises by various persons before the Rent Control Eviction Officer in short the RC EO .
21, Hamilton Road, Georgetown, Allahabad.
4621 of 1982 is restored to its file to be disposed of afresh on merits and in accordance with law, after hearing both the parties and giving them due opportunity.
Vacancy declaration order was reconsidered by the RC EO but numberfresh order declaring or holding vacancy was passed by the RC EO.
Landlord has appeared.
Consequent to the order dated 9th of September, 1980, the RCI, after inspecting the disputed premises, submitted his report to the RC EO regarding vacancy.
From the orders dated 20.4.1981, 3.7.1981 and 7.8.1981 on the order sheet, it would be clear that the RC EO had heard the question of vacancy again.
At this stage, it would number be out of place to mention that the numberice received by the respondent was number indicative of the fact that the question of allotment of the disputed premises would be companysidered on 3rd of January, 1981.
On 26th of September, 1981, the respondent and the applicants were present and were heard and on 18th of November, 1981, the RC EO passed an order of allotment in favour of the appellant.
It was all along the case of the respondent that he had filed his objections with regard to the matter of allotment of the disputed premises on 24th of January, 1981 to the extent that the disputed premises which was occupied and possessed by the respondent was No.
Against this order of the High Court, the appellant had filed an application for recall of the said order but the same was also rejected by the High Court by its order dated 14th of February, 2003.
It is also an admitted position that the alleged report of the RCI would only show that the disputed premises was locked at the time of inspection and it did number indicate that numberbody was residing there.
It was also the case of the respondent that the RC EO without companysidering the objection filed by him passed the order dated 24th of January, 1981 declaring vacancy in the following manner The file was put up.
To be put up on 31st January for argument on allotment and orders.
No body was living.
21, Hamilton Road and number No.
At the main gate a Board of Shri Prasidh Narain Anand was there.
It is clear that the disputed portion, which is western portion of the house is vacant because there is numberobjection from Sri N.Anand, hence vacancy is being numberified.
On the said application of Parsuram Pandey for allotment of the disputed premises, an order was passed by the RC EO on 9th of September, 1980 directing the Rent Control Inspector in short the RCI to inquire and report on the issue of vacancy of the said disputed premises.
21, Hamilton Road, Allahabad were liable to be rejected as numberpart of the same was lying vacant.
Before we companysider the rival submissions made on behalf of the parties, we may, at this stage, record the findings of the High Court while allowing the writ petition which are as follows The report of RCI had only shown that the main gate of the disputed premises was locked and that if found appropriate, it was the duty of the RC EO to call the parties to ascertain the companyrect position.
All the persons who had applied for allotment had alleged that the disputed premises was formerly in occupation of one Sri S.K.Misra but even in the objection purported to have been filed on 24.1.1981, there was numberaverment that the building in dispute was number occupied by K.Misra or any other person.
It was the case of the respondent that by the aforesaid order dated 24th of January, 1981, he came to know that certain applications were filed before the RC EO for allotment of the disputed premises although he along with his family members was very much living in the disputed premises and there was numberoccasion for anyone to make any application for allotment.
The order dated 24th of January, 1981 declaring vacancy did number show that on that date, either the landlord or any applicant was present.
TARUN CHATTERJEE,J. One Parsuram Pandey filed an application for allotment of a part of House No.21, George Town, Hamilton Road, Allahabad, U.P. in short the disputed premises which had allegedly fallen vacant.
