KAMLA DEVI Vs. XITH ADDL DISTRICT JUDGE VARANASI

JUDGEMENT

(1.) PRAKASH Krishna, J. These two writ petitions are connected one and the arguments were advanced only wife reference to the facts in Writ Petition No. 23116 of 1989 and it was agreed that the fate of the Writ Petition No. 23116 of 1989 would decide the fate of the Writ Petition No. 30665 of 1999.

(2.) THE present Writ Petition No. 23116 of 1989 arises out of an application for allotment filed on 3rd of November, 1981 by Shri Santosh Kumar Srivastava who is respondent No. 3 herein, for allotment of three rooms, latrine, bathroom plus verandah of a house No. D-52/96a, situate at Varanasi. THE application was moved on the ground that earlier Shri Vijay Kumar Tandon was the tenant of the said accommodation who has constructed his own house within the municipal limits of Varanasi and thus the disputed accommodation would be deemed to have been vacant. A report from Inspector was called for who submitted his report dated 4th of January, 1982 to the effect that Ma Anand Mai Kali Trust is the owner of the house and one Smt. Sukhmai Devi is the Sewait thereof. An application for release of the disputed accommodation was filed on behalf of Ma Anand Mai Kali Trust under Section 16 (1) (b) of the U. P. Act No. 13 of 1972 on the ground that the property in dispute was surrendered by Smt. Sukhmai Devi and a trust was created in favour of Damodar, Shalig Ram and Laxmi Govind (names Deities ). One Chitamber alias Deepankan Chatterjee claiming himself as Sewait, filed an affidavit in support of the release application. THE said release application was opposed by Santosh Kumar, the applicant for allotment on the ground that the release application should have been filed in the name of deities. Another application was filed on 29th of November, 1993 by present petitioners (hereinafter called as Smt. Kamla Devi) on the ground that she has purchased the disputed accommodation through registered sale-deed on 13th of November, 1982 and prayed that the accommodation in dispute be released in her favour as she bonafidely requires it looking to the strength of her family members. THE applicant for allotment, Santosh Kumar Srivastava, the respondent No. 3 herein contested the application filed by Kamla Devi on the ground that the property in dispute is a trust property and Smt. Sukhmai Devi who had created the trust had no right or title to execute the sale-deed dated 13th of November, 1982 in favour of Kamla Devi. THE Rent Control and Eviction Officer by the order dated 16th of May, 1983 allotted the house in question to the respondent No. 3, Santosh Kumar Srivastava. THE said allotment order was set aside in Revision No. 162. Against the said order two revisions were filed being Revision Nos. 162 of 1983 and 163 of 1983. THE rent Revision No. 162 of 1983 was filed by Smt. Kamla Devi while the rent Revision No. 163 of 1983 was filed by Vijay Kumar, the sitting tenant as he then was. THE Revision No. 162 of 1983 was allowed by the First Additional District Judge, Varanasi on the finding that the Rent Control and Eviction Officer was not competent to examine the validity of the sale-deed standing in favour of Smt. Kamla Devi. THE matter was remanded by the revisional authority for fresh consideration in the light of the observations made therein to the Rent Control and Eviction Officer. THE Revision No. 163 of 1983 was dismissed. However, the revisional Court upheld that vacancy exists as the sitting tenant Vijay Kumar has built his house at Varanasi. This order is dated 7th of November, 1983 and was subject matter of challenge in the Writ Petition No. 14828 of 1983 filed by Santosh Kumar Srivastava, the respondent No. 3 herein. This Court allowed the writ petition in part and set aside the order dated 7th of November, 1983 so far as it treats the respondents No. 3 to 11 therein i. e. Smt. Kamla Devi as landlady of the accommodation in question with the direction that the Rent Control and Eviction Officer shall determine the question as to who was the landlord of the accommodation in dispute on the date when it was deemed to have been vacated on account of a fact that Shri Tandon the erstwhile tenant has constructed his own house. In pursuance of the aforesaid order of this Court the matter was re-examined by the Rent Control and Eviction Officer who by its order dated 27th of July, 1989 found that the sale-deed in favour of Smt. Kamla Devi, the petitioner herein is invalid as Smt. Sukhmai had endowed the property in question. THE allotment made in favour of the respondent No. 3 was confirmed. Smt. Kamla Devi unsuccessfully challenged the said order in civil revision No. 104 of 1989 which is impugned in the present writ petition.

(3.) I have given careful consideration to the respective submissions of the learned Counsel for the parties. It may be noted here that the Additional District Judge while allowing the revision No. 162 of 1983 filed by Smt. Kamla Devi in its judgment held that the Rent Control and Eviction Officer fell in error while he started examination of the validity of sale-deed. The said approach of the learned Additional District Judge finds approval of this Court while disposing of the Writ Petition No. 14828 of 1983 by the following words : "having considered the matter carefully, I am of the opinion that the approach adopted by the revisional Court was correct, however, in my opinion, the revisional Court failed to record any finding as to who was landlord recognized by the Rent Control and Eviction Officer on or before 13th of September, 1982, the date on which the sale-deed was executed. "