DEVI DAYAL Vs. RENT CONTROL AND EVICTION OFFICER

JUDGEMENT

(1.) SRI Devi Dyal Vyas, at present member of Income-Tax Tribunal, Ahmedabad was allotted house in Model Town, Ghaziabad in official capacity as Civil Judge in 1969 at a rent of Rs. 35/- only. In 1971 he was transferred as Additional District Judge, Sultanpur. Within few months he was selected as Judicial Member Income-Tax Tribunal and was posted at Calcutta From Calcutta he was transferred to Jaipur. On his selection as Member of Income Tax Tribunal he resigned from Judicial Service of the State. But he did not vacate the house at Ghaziabad. The landlady who is also wife of an I.A.S. Officer, probably grew apprehensive that the house may be lost for ever on nominal rent, and not very wrongly, as petitioner has admitted in affidavit filed, that he has no house and intended to settle in it permanently after his retirement. Therefore, in March, 1974 she made her first effort for release of the house by taking recourse not only to proceedings under Section 21(1)(a) of U.P. Act XIII of 1976 as she needed it for her husband who was likely to be posted in Delhi after contemplating his training in Goa and also for her brother who was an Advocate and intended to settle at Ghaziabad but also under Section 21(1)(b) for demolition and construction as the house was dilapidated. On the allegations the house obviously could not be released under Section 21(1)(a) and the Prescribed Authority rightly held that the provisions could not be invoked by landlady for convenient and comfortable living. He was further right in observing that necessity of brother could not be covered in expression bonafide requirement of the landlord. Nor did he find any merit in claim of opposite party that the house was dilapidated. Apart from these aspects it was also claimed that due to transfer of petitioner vacancy arose as a matter of law under Section 12 of the Act. The Prescribed Authority did not decide it as this aspect could not be examined the proceedings under Section 21. This additional plea was raised because of addition of sub-section (3-A) to Section 12 in 1976 raising presumption of vacancy on transfer of a government servant on fulfilment of conditions mentioned therein. Faced with this opposite party while challenging the order of Prescribed Authority in appeal initiated proceedings under Section 16(1)(b) read with Section 12(3-A) of the Act for release of the house as it has fallen vacant. On inspection it was found that petitioner had been transferred and the house was locked. While these proceedings were pending appeal was dismissed and the finding of Prescribed Authority on bonafide need was affirmed as it could not be believed that opposite party's husband who was an I.A.S. Officer of Delhi cadre shall not get a house in Delhi and shall have to live at Ghaziabad. The appellate authority decided the controversy of deemed vacancy as well and held that petitioner having substantial removed his effects from the house in dispute, he shall be deemed to have vacated the house. He examined comparative hardship also, and found that by vacating the house petitioner shall not suffer as he was bound to be allotted a house at place of his posting, and his sons were also settled, one of them being M.B.B.S. The opposite party was, obviously satisfied as although the appeal was dismissed by the finding on deemed vacancy and comparative hardship were in favour. She immediately intimated the finding of vacancy recoded by appellate authority to Prescribed Authority and claimed that the house was vacant. And on next day that is 22nd October, 1980, she moved another application for release as she needed the house for her husband and children. On it fresh inspection was made. It was found that petitioner's wife along with a servant was found residing in the house. This report was damaging therefore, she filed third application on 3rd November, 1980 refuting its correctness and alleging that it was unbelievable that petitioner's ailing wife would remain all alone at Ghaziabad. It was also claimed on strength of finding recorded by appellate authority that petitioner having removed his effects substantially the premises were vacant and it be released in her favour. On 12th November, 1980 petitioner filed an application stating that he was approaching this Court against finding of appellate authority that deemed vacancy has arisen therefore, proceedings under Section 16 be stayed. It was also asserted that substantially all his effects were in the house at Ghaziabad. Another application was filed on 18th November for making local inspection. Details of house hold effects which were in the house namely, fridge, television Dressing and Dining tables, Sofasets, double-beds, Office table etc. were also mentioned. On 21st November, 1980 petitioner filed writ petition against finding of deemed vacancy recorded by appellate authority but it was dismissed summarily with observation that order being in favour of petitioner finding of deemed vacancy recorded against him could not operate as res judicata. Petitioner then filed his detailed objection to release application on 4th December, 1982. The Prescribed Authority (R.C. & E.O.) declared vacancy under Section 12(4) of the Act on 29.1.1981. He held that petitioner having been transferred it could not be delivered that he was residing at Ghaziabad. But as Section 12(3-A) was not applicable to this date there was no question of its allotment. And he rejected allotment applications of certain other applicants and dismissed the application of opposite party filed in 1979 and October, 1980. He, thereafter, took up the last application dated 3.11.1980 for declaration of vacancy due to substantial removal of effects and held that even if the wife of petitioner or his relations lived in the house and for that purposes retained certain goods it would not mean that substantial effects were not removed particularly when petitioner was transfered and admitted to have taken a house on rent in Jaipur. Revision against this order was dismissed on 19.9.81 as not maintainable. On 5.2.1981 petitioner filed another objection running in eighty two paragraphs to the release application. The Prescribed Authority (R.C. & E.O) on 2nd Nov., 1981 released the premises considering opposite party's husband did not have any houses to reside in Delhi. This order was ex parte. In revision it was held that absence of petitioner did not vitiate the proceedings as proceedings for release under Section 16(1)(b) are between the District Magistrate and the landlord to which outgoing tenant was not necessary party. In this view of the matter, he did not examine if petitioner did not appear despite direction by the revising authority while dismissing revision against order declaring vacancy. On merits he did not agree that he was debarred from examining correctness of the order declaring vacancy. But instead of deciding whether the order was in accordance with law he held that opposite party's husband having been transferred to Delhi the circumstances changed and no accommodation having been allotted to him it was not in interest of Justice to interfere with orders of Prescribed Authority specially when petitioner was posted at Ahmedabad, his two children were living far away from Ghaziabad and his ailing wife was normally expected to live with him at place of his posting.

(2.) IN order to substantiate its case of not vacating the premises by not removing substantial effects within meaning of Section 12(1)(a), petitioner had filed affidavits of as many as six lawyers, Sarvsri Jai Prakash Tyagi, Fateh Chand Goel, Rajpal Singh, Jog Ram Singh Tomar, Shyam Sunder Sharma and Puran Chand stating that the house was never vacated by petitioner. Affidavits of Jogendra Pal Bage, Press Correspondent of Milap, Dr. Rama Nand Sharma Smt. Bhagwati devi, Vice Principal (U.P. Pradhan) Mahanand Mission Harijan Dalika Vidyalaya and Sheo Charan, Scavenger, were also filed. In this objection filed before Rent Control Officer it was stated that on his transfer to Sultanpur, then his appointment at Calcutta and subsequent transfer to Jaipur, he never charged and travelling allowance etc. as he had not removed his effects and was residing temporarily here and there. He further alleged that electricity bills and water tax was paid by him. In support of it he filed paper Nos. 1 to 10 electricity bills showing consumption and its payment. Papers were filed to show payment of water and house-tax till March, 1977 and 1979 in pursuance of notice issued by Municipal Board under Section 149 of U.P. Municipalities Act. Number of other documents for instance cash memos for species purchased by his wife, bill for newspaper, bill of Milkman etc. were either filed or were stated to have been filed in Section 21 proceedings.

(3.) NUMBER of decisions were relied by learned counsel for parties on interpretation of expression of substantial removal of effects. For petitioner it was urged that it is not partial but substantial removal which is covered in this expression. According to learned counsel mere locking of premises was not sufficient. It had to be found if petitioner has substantially removed his effects. The interference could not be drawn either by petitioner's transfer or his sons studying outside Ghaziabad or his wife's ailment. It is not living at Ghaziabad which was material but if the petitioner had removed his effects. On the other hand learned counsel for opposite party urged that accepting petitioner's case that he was residing in government hostel etc. during his stay at Sultanpur and Calcutta but once it was admitted that he was residing in a house at Jaipur after his transfer there in 1973 it should be taken to have removed his effects. According to him intention was immaterial for declaration of vacancy under Section 12. It was not semblance of possession which could defeat the Legislature intent of assuming vacancy. The learned counsel urged that residing of petitioner's wife at time of inspection had nothing to do with removal of substantial effects except to frustrate the provision of deemed vacancy. According to learned counsel even though Section 3-A of Section 12 was not retrospective yet in cases of transfer the construction of provision should be same. It is unnecessary to refer to decision as very use of expression indicates that its construction has to vary from case to case. What may amount to substantial removal in one may not be acceptable in another. It is not the locking of premises, or absence for sometime, or relating some moveables which may, clinch the matter either way. Nor can it be inferred as a matter of law except in cases covered under sub-section (3-A) of Section 12 after of 1976. It was, therefore, incumbent on the authorities to examine this aspect on material on record. Unfortunately this has not been done either while declaring vacancy or while allowing release application.