MAYA DEVI Vs. DISTRICT JUGDE ALLAHABAD

JUDGEMENT

(1.) One Jagannath Singh was the owner of a house situate in the city of Allahabad, a portion of which (hereinafter referred teas the accommodation in question or the said accommodation) was allotted to Janak Raj Singh, respondent No. 4. The petitioner purchased the said house from Jagannath Singh on 23rd December, 1974. Thereafter she made an applica tion for the release of the accommodation in question in her favour under Section 16 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972), inter alia, on the ground that the tenant Janak Raj Singh had been transferred from Allahabad and had occupied the said accommodation. According to the petitioner, in these circum stances, the tenant would be deemed to have vacated and it was available for release in her favour. The application was contested by respondent No. 3 Sheo Pujan Singh, inter alia, on the grounds that he had been living in the accommodation in question with his brother Janak Raj Singh even in 1963 when he was transferred from Allahabad; that thereafter Jagannath Singh the then owner of the said accommodation had accepted him as its tenant and since on 15th July, 1972, the date of commencement of U. P. Act No. XIII of 1972, he was in the occupation of the said accommodation as tenant with the con sent of the landlord, he was entitled to the benefit of Section 14 of U. P. Act No. XIII of 1972. The plea raised by respondent No. 3 in his defence was accepted by the Rent Control and Eviction Officer, respondent No. 2 and the release application was dismissed. A revision filed against that order by the petitioner has been dismissed by the District Judge, respondent No. 1 Aggriev ed she has instituted the present writ petition with a prayer to quash these orders. The finding recorded by the Rent Control and Eviction Officer and accepted by the District Judge on the basis of the evidence on record including a notice given by Jagannath Singh, the earlier landlord through an Advocate, a copy whereof has been filed as part of Annexure 'iii' to the writ petition containing an admission that respondent No, 3 was the tenant of the accommodation in question, is that respondent No. 3 had been in possession over the accommodation in question from before 15th July, 1972 as tenant with the consent of the earlier landlord Jagannath Singh and consequently the said accommodation could not be deemed to be vacant for release in favour of the petitioner. Respondent No. 3 was thus given the benefit of Section 14 of U. P. Act No. XIII of 1972. The finding referred to above is apparently a finding of fact based on appraisal of evidence and cannot be challenged in a writ petition under Article 226 of the Constitution. What was, however, urged by counsel for the petitioner is that since the notice relied on by respondents 1 and 2 had not been given by Jagannath Singh himself but was given by an Advocate on his behalf any admission in the said notice was not binding on the petitioner who was a subsequent purchaser. I find no substance in this submission. The notice given by Jagannath Singh through an Advocate would be deemed to be given by Jagannath Singh him' and for that reason an admission contained in that notice will be an admission not of the Advocate but of Jagannath Singh. It was then urged that Section 14 of U. P. Act No. XIII of 1972 was not attracted to the facts of the instant case inasmuch as respondent No. 4. who was the allotted of the accommodation in question had never formally surrendered the possession of the said accommodation to the then landlord and as such the then landlord could not induct respondent No. 3 as a tenant in the said accommodation. I find no substance in this submission either. In view of the facts pleaded by her it is apparent that the case of the petitioner was that tenant-respondent No. 4 would be deemed to have ceased to occupy the accom modation in question, inter alia in view of Section 12 (1) (b) of U. P. Act No. XIII of 1972. Section 12 (1) (b) has been held to be retrospective by a Full Bench of this Court in Smt. Keshar Bai v. District Judge (1980 A. W. C 385 ). Section 12 (4) provides that any building or part thereof which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2) or sub-section (3), sub-section (3-A) or sub-section (3-B), shall for the purposes of this Chapter, be deemed to be vacant. Sections 12, 14 and 16 of U. P. Act Mo. XIII of 1972 are all in Chapter III. The petitioner made an application under Section 16 for release apparently in view of what is contained in bee 12 (4) of U. P. Act No. XIII of 1972. The argument that, even thougt he petitioner was entitled to make an application under Section 16 in view of the aforesaid provision, respondent No 3 could not be given the benefit of 01 Section 14, is, on the face of it, self-contradictory. Further, it is defeating argument. If the effect of possession not being formally sum by respondent No. 4 to the landlord was that the said respondent continued is a tenant, so as to render Section 14 inapplicable, the application de by the petitioner, when there was already a sitting tenant, for allotment under Section 16 of U. P. Act No. XIII of 1972 was misconceived and not maintainable. If the accommodation in question could not be treated as vacant, that i been vacated by respondent No. 4 for purposes of Section 14 it could treated as vacant for purposes of Section 16 either. In the result, I find no merit in this writ petition. It is accordingly dismissed. .