MANIK CHAND Vs. IXTH A D J KANPUR

JUDGEMENT

(1.) This is a writ petition seeking writ of certiorari for quashing the allotment order dated 23-5-1978/1-6- 1978 of the R. C. and E. O. , order dated 6-9-1980 of the delegated authority rejecting the application under Section 16 (5) of the petitioner for review of the same, and the order dated 18-9-1981 of the Additional District Judge Kanpur Nagar dismissing the revision against the same. 2 The petitioner Manik Chandra claims to be a tenant of the premises in question No. 13/152 (22) situate in Parmat, Kanpur, since forty years prior to the filing of the writ petition. 3. It appears that an application for allotment by respondent No. 3 Ram Chet was made on ground of deemed Tacancy of the premises in question on account of the act that the petitioner has acquired premises No. 13/256 Parmat, Kanpur, and has ceassd to occupy the same having shifted to his newly acquired building. After declaring vacancy the R. C. and E. O. allotted the said premises in favour of respondent No. 3. 4. The petitioner aggrieved by the impugned order of declaration of deemed vacancy and allotment filed an application under Section 16 (5) for review on the ground that the premises in question was occupied by him, and used as shop since the very beginning for carrying on Parchoon business. Due to his old age the business is being looked after by his son Madan who has got a licence. The petitioner is residing in House No. 13/256. The pre mises in question being a non-residential one, Section 12 of Act 13 of 1972 is not attracted and the premises in question cannot be deemed to be vacant. No spot inspection in accordance with rules was made by the R. C. I. and no notice was served on the petitioner in pursuance of the order of the R. C. and E. O. The premises not being vacant not likely to fell vacant, it could not be allotted. The review application was opposed by the respondent No. 3. 5. The delegated authority by his order dated 6-9-1980 rejected the review application of the petitioner with a finding that the accommodation in question was a residential accommodation and the allotment in favour of the respondent No. 3 is valid. On the revision being preferred by the peti tioner, the learned Additional District Judge affirmed the said conclusions and order of the delegated authority. Aggrieved this writ petition. 6. Learned counsel for both the parties have been heard at length in this writ petition and the material placed on record has been perused. 7. On behalf of the petitioner, the impugned order of allotment and subsequent orders of the delegated authority and the Additional District Judge have been challenged on the ground of manifest error of law, in so far as according to the petitioner the accommodation in question being a resi dential accommodation on account of acquisition of house No. 13/256 for residential purpose, the same could not be, deemed to be vacant, the docu mentary evidence filed in this regard by the petitioner at revisional stage was not considered by the revisional court, reliance was wrongly placed by the courts below on the report of the R. C. I. which was made behind the back of the petitioner. In any case the premises No. 13/256 having been acquired before 15-7-1972 when Act 13 of 1972 came into force, the provisions of Sec tion 12 (3) of the said Act are not attracted. 8. The contention of the respondent on the other hand is that the R. C. and E. O. declared the vacancy on the basis of valid material. The pre mises in question was a residential accommodation and the petitioner and his family members having taken up residence in another building (House No. 13/256 vacancy was rightly declared under Section 12 (1) (c) of Act 13 of 1972 and allotment in favour of the respondent was validly made. 9. A perubal on the record would go to show that although the Rent Control Authorities purported to hold the deemed vacancy of the premises in question under Section 12 (I) (3) of Act 13 of 1972, in essence it was a determination of deemed vacancy under Section 12 (1) (c) of the Act. On a perusal of the impugned orders of R. C. and E. O. and the learned District Judge, it would be found that the report of the Rant Control Inspector relied on in this regard, was to the effect that the petitioner tenant having shifted to house No. 13/256 has substantially removed his effects therefrom. In the context of this there hardly was any relevancy of the question as to whether the premises in question was used a residential building or as a non-residential building. 10. That sub-section (3) of Section 12 (1) of the Act was not attracted is also clear from the fact that it was no where the case of the respondent, or the rent controller, that the residential building No. 13/256, Format Kanpur was acquired by the tenant or any member of his family after enforcement o1 Act 13 of 1972. 11. According to the principles laid down in the full bench decision in Mangi Lal v. Additional District and Sessions Judge Lucknow, reported in 1980 ALR 1 the scheme of Section 12 is that the construction of residential building or otherwise acquiring in a vacant state, or getting it vacated after acquisition of a tenant, created a vacancy in the accommodation held by the tenant. This happens if the tenant builds or otherwise acquires, after the commencement of the Act. In case he acquires a residential building before the commencement of the Act, vacancy does not arise. 12. It is also not the case of the respondent that the premises No. 13/256 was constructed by tenant himself or any member of his family so as to attract the proviso to sub-section 13 (3 ). 13. In view of the above state of facts, therefore, the controversy as to whether the premises in question was residential or con-residential was hardly relevant, and all that was required to be determined was whether as contended by the respondent applicant for allotment the petitioner has substantially removed his effects from the disputed premises, or he was still in effective use and occupation of the same. This aspect, however, does not appear to have been considered or discussed by the R. C. and E. O. or by the District Judge. They appear to have cursorily dealt with the evidence on this point including the documentary evidence filed before the learned District Judge, copies of which are enclosed as Annexure 5-A to 6-D to this writ petition. Of course Annexure 12 copy of the Commissioner's report and Annexure 13 judgment of the Additional District Judge in Rent Appeal No. 93 of 1974 were not relevant being in respect of another premises No. 13/124 and those were rightly discarded by the courts below, but still the fact remains that the impact of Annexure 5-A to 6-D was not considered. The Courts below thus acted illegally in the exercise of their jurisdiction and the impugned orders deserve to be quashed. 14. The writ petition is accordingly allowed. The allotment order dated 23-5-1978/1-6-1978, the order dated 6-9-1980 of the Rent Control Authorities and order dated 18-9-1981 of the Additional District Judge are hereby quashed. The case is remanded to the R. C. and E. O. Kanpur Nagar with a direction to decide the question of deemed vacancy under Section 12 (1) (c) of the Act of 13 of 1972 in accordance with law after discussing oral evidence filed before the R. C. and E. O. as well as revisional court, on merit, and therefore to dispose of the allotment application if there is positive finding on the point of deemed vacancy. The record of the revisional court shall be requisitioned by the R. C. and E. O. with reference to the relevant documents as mentioned in Paragraph 13 above. The case shall be disposed of by the R. C. and E. O. within three months from the date a certified copy of this order is present or laid before him. There is co order as to costs. Petition allowed. .