KANTI KHARE Vs. KALI PRASAD ASTHANA

JUDGEMENT

(1.) K. C. Agarwal, J. Bungalow No. 17, Kanpur Road, Allahabad belongs to the Methodist Church, Allahabad. This was allotted to Dr. (Smt.) D. Kaur in 1954. Dr. (Smt.) D. Kaur was employed as Medical Officer Incharge, Dufferin Hospital, Allahabad in that year. Subsequently, she resigned from government service in or about the year 1956, and started her private practice.

(2.) SMT. Kanti Khare, the petitioner, filed an application under Section 16 read with Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Act XIII of 1972) (for the allotment?) of the aforesaid bungalow. She alleged that Dr. (SMT.) D. Kaur had constructed a residential building for herself at Nyaya Marg known as 'poorab Paschim'. Hence, the accommodation in dispute would be deemed to have fallen vacant under Sec. 12 (3) of U. P. Act XIII of 1972. The application made by the petitioner was referred for enquiry under Rule 8 to the Rent Control and Eviction Officer, who found that there was no vacancy. The Rent Control and Eviction Officer, thereafter, rejected the application on November 28, 1977 on the ground of being barred by principle of res judicata. The petitioner filed a revision before the District Judge which was transferred to the Additional District Judge, Allahabad and was dismissed on May 23, 1978. Against the aforesaid order, the petitioner filed the present writ. The writ was allowed by Hon. S. J. Hyder, J. , on May 7, 1981 and the case was remanded to the Rent Control and Eviction Officer for fresh decision in accordance with the observations made in the aforesaid judgment. Being aggrieved, Dr. (SMT.) D. Kaur filed an appeal to the Supreme Court which was allowed on August 10, 1981 and the writ petition was sent back to this Court for a fresh decision. The relevant portion of the judgement of the Supreme Court asking the High Court to decide the writ afresh, is quoted below: "the learned single Judge of the High Court has taken the view that an applicant for allotment of accommodation on the ground of deemed vacancy is entitled to be heard before an order is made by the Rent Control and Eviction Officer but this view taken by the learned single Judge seems to be contrary to the decision of another single Judge of the High Court in Munnoo Lal v. District Judge decided on 6th April, 1979 (reported in 1979 All Rent Cas 334 ). It is, therefore, necessary that so far as this particular question is concerned, the conflict between the decision of two judges of the High Court should be resolved by a Division Bench of the High Court, Moreover, we find that the High Court has laid down certain guidelines for the purpose of deciding whether the accommodation in the present case is residential or non-residential and remand the case to the Rent Control and Eviction Officer for the purpose of deciding that question in accordance with such guidelines. We are of the view that the High Court need not have remanded the case to the Rent Control and Eviction Officer but should have decided the question itself on the basis of evidence which was already led by the parties. We would, therefore, set aside the decision of the High Court and remand the case to the High Court with a direction that the matter may be disposed of anew by a Division Bench of the High Court according to law in the light of the observations contained in this judgement".

(3.) THE argument was that as the first application had been rejected, the second application for allotment on which the impugned order was passed, was not maintainable. This argument of the Counsel found favour with the Rent Control and Eviction Officer and the Additional District Judge, But Hon. S. J. Hyder, J. did not agree with the aforesaid view and set aside the same, His opinion was that as the order dated 30th July, 1977 was Passed behind the back of the petitioner, the same was void and could not operate as res judicata. In that connection, the learned Judge held that the principles of natural justice required giving of an opportunity to the petitioner before the order dated 30th July, 1977 was passed. As this opportunity had not been given, the order was a nullity. THE submission made before us was that there was a statutory obligation on the Rent Control and Eviction Officer to give an opportunity to the petitioner to substantiate his case for allotment, This argument was controverted by the learned Counsel for the respondent that there was no statutory Provision requiring giving of an opportunity, hence, the Rent Control and Eviction Officer had Jurisdiction to decide the application without hearing the petitioner.