PARMESHWARI DEVI Vs. JAGDISH SHARMA

JUDGEMENT

(1.) THIS writ petition is directed against the judgment of the learned Addl. Distt. and Sessions Judge, Bulandshahr, dated September 5, 1974, dismissing the appeal filed by the petitioners u/S. 18 of U.P. Act No. XIII of 1972. The dispute in this case is with regard to premises No. 2/282, Race Course Colony, Bulandshahr. THIS house was owned by one Bhupendra Singh Dang prior to 25th of June, 1974. He sold the aforesaid house on June 25, 1974 to Smt. Parmeshwari Devi and Smt. Ilachi Devi, the petitioners. It appears that an application was filed by Jagdish Sharma, respondent No. 1, for allotment of the aforesaid premises in his favour on the ground that the same was vacant. The application had been recommended by the Minister of Education, U. P. The Rent Control and Eviction Officer passed an order of allotment on the said application in favour of Jagdish Sharma on 18-7-1974. Having come to know of the aforesaid order the petitioners preferred an appeal under Section 18. The appeal was dismissed by the impugned order. Hence the writ.

(2.) THE first submission made by the learned counsel for the petitioners was that as the house was in occupation and possession of Bhupendra Singh Dang on the 25th of June, 1974, when it was sold to the petitioners, therefore, there was no vacancy at any point of time which could entitle the Rent Control and Eviction Officer to pass an order of allotment in favour of respondent No. 1. Counsel urged that an order of allotment can be passed in respect of a premises only when it is likely to fall vacant or is actually vacant or is deemed to be vacant under Sec. 12 of U. P. Act No. XIII of 1972. Learned counsel for the respondent No. 1, however, urged that there was no evidence before ,the District Judge to come to the conclusion that the premises in question was not actually vacant and, therefore, the submission made is untenable. He urged that whole of this premises had been let out by Bhupendra Singh Dang to the Regional Food Controller and as the latter had vacated the premises, therefore, the same could be allotted to respondent No. 1

(3.) HAVING found thus that the court below committed an error in law in holding that on account of passing of possession from Bhupendra Singh Dang to the petitioners, a vacancy had occurred, the judgment of the court below is liable to be quashed. As a result thereof, the matter will now go back to the District Judge with a direction to decide the case afresh. As it appears that the parties did not have full opportunity to adduce evidence on the question as to whether the Regional Food Controller was in possession of the whole of the premises before April 1974 or only a part thereof, it appears proper to give a direction to the court below to permit the parties to adduce evidence in respect thereto. If it is found that the Regional Food Controller was in possession of only a portion of it, it will become necessary for the court below to consider whether the allotment order passed in favour of respondent No. 1 in that event can be said to be valid. While deciding this question, the court below will also take into consideration the effect of Section 17 of U.P. Act No. XIII of 1972. As the judgment of the court below is being set aside on a point which, to my mind, is crucial, it is not necessary for me to go into other questions which have been decided by the court below. It will now be open to the court below to record its finding again on these points, if they are pressed before it.