RAMESH CHANDRA Vs. KAILASH AUDICHYA

JUDGEMENT

(1.) AN application was made by the Petitioner for allotment of a shop in the city of Kanpur on the ground that one Shiv Dutt Audichya was tenant of that shop, that after his death Respondent No. 1 Dr. Kailash Audichya occupied it without any authority, that subsequently, however, Respondent No. 1 was transferred from Kanpur to Farrukhabad and was keeping the shop locked. According to the Petitioner, Respondent No. 1 in the aforesaid circumstances shall be deemed to have ceased to occupy the shop in question as contemplated by Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and consequently it was available for allotment. The application was contested by Respondent No. 1, inter alia, on the grounds that he was the son of Sri. Shiv Dutt Audichya and was occupying the shop in question in that capacity. According to him, even after his transfer to Farrukhabad he was using the shop in question as a homoeopathic practitioner and was doing his practice by coming over to Kanpur on every Sunday. Subsequently he appeared to have made a statement on 10th April, 1980 that he had started a shop of milk in the said shop of which his wife was the owner. The Rent Control and Eviction Officer on the basis of the material on record held that Respondent No. 1 was at present employed at Farrukhabad, that his clinic was not there in the said shop at present and consequently the shop was to be deemed to be vacant. After declaring vacancy the shop was by a later order allotted in favour of the Petitioner. Respondent No. 1 filed a revision against that order before the District Judge under Section 18 of the Act. The IXth Additional District Judge, Kanpur to whom the revision was transferred for hearing has held that the shop was neither vacant nor could the Respondent No. 1 be deemed to have vacated the said shop within the meaning of Section 12 of the Act and consequently the allotment order was invalid. On these findings he has allowed the revision and set aside the allotment order passed in favour of the Petitioner. It is this order of the Additional District Judge which is sought to be quashed in the present writ petition.

(2.) IT was urged by Counsel for the Petitioner that in view of the decision of a Division Bench of this Court in Hari Swarup v. RC and EO : 1982 AWC 790 the Additional District Judge did not have jurisdiction to interfere with the finding of fact recorded by the Rent Control and Eviction Officer, the Respondent No. 1 shall be deemed to have ceased to occupy the shop in question and consequently there was vacancy in respect of the said shop.

(3.) IT was urged by Counsel for the Petitioner that two affidavits, copies whereof have been attached as annexures 7 and 8 to the writ petition, were filed before the Rent Control and Eviction Officer indicating that Respondent No. 1 has sublet the shop in question to one Shanker Lal. In the counter affidavit it has been stated that these affidavits do not constitute part of the record and were filed after the arguments. It has not been stated in the writ petition or in the rejoinder affidavit that these affidavits were filed after giving their copies to Respondent No. 1 nor has it been stated that any order was passed by the Rent Control and Eviction Officer accepting these documents and giving Respondent No. 1 opportunity to rebut them. In this view of the matter these two affidavits obviously could not be considered. Further these two affidavits do not appear to have been pressed in service before the Additional District Judge. The impugned order therefore cannot be quashed on the basis of these two affidavits either.