RAGHUNATH PRASAD Vs. KRISHNA DIXIT

JUDGEMENT

(1.) -This petition is directed against the order dated 10-1- 1987 passed by the IV Additional District Judge, Kanpur Nagpur under section 18 of U. P. Act 13 of 1972, here in after referred to as the Act The Matrix of the Act case, in short, is as follows.

(2.) TWO applications for allotment of Quarter No 47/1 and 52/1-2 of premises No. 36/51 Ram Das ka Mandir, Chatani-Monal, Kanpur were moved alleging that the out going 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 bis 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 indirate that he was in actual occupation of the disputed premises.

(3.) IN support of his contention, the learned counsel for the petitioner relied on the case Ganpat Roy v Additional District Magistrate. AIR 1985 SC 1635. The learned counsel for the respondent, in spite of the case being squarely covered by the proposition of law 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 under section 18 of the Act. The learned counsel in support of his argument cited the decision S. Rama Iyer (deceased) v. Sundaresa Ponnapoondar. AIR 1966 SC 1431. Omkar Nath Avasthi v. V Addl. District Judge. Bareilly, 1985 (1) ARC 358, Satish Chandra Sharma v. Resident Magistrate, Haridwar, (987 (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 restudicata. 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 under section 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 had proceeded to allot or release the premises can not be reagitated in Revision.........