KUSUM GUPTA Vs. VITH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THIS is landlady's writ petition for the quashing of the order dated 6.11.1986 passed by respondent No. 1 in Rent Revision No. 178/1984 whereby the revisional court has remanded the case once again to the Rent Control and Eviction Officer for deciding the questions of declaration of vacancy and release afresh in the light of the observations made in the order. This case has a long chequered history. According to the petitioner's case she is owner of a house in a portion of which A.J. Peter was tenant. In the same house she was living in the adjacent portion. Peter died on 10.2.78. Thereafter his son Austin Peter inherited the tenancy rights and he was in occupation of the tenanted accommodation. The landlady on 14.7.78 filed a release application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 against Austin Peter. The tenant filed compromise on 23.8.78. In the meantime it appears that respondent No. 2 moved an application for allotment which is alleged to have been moved on 8.8.78. Under the order of the Rent Control and Eviction Officer, the Rent Control Inspector made inspection and submitted report dated 24.8.78, vacancy was thereafter notified. It is alleged by the petitioner that an allotment order was made in favour of respondent No. 2 on 1.9.78. It is in further alleged by the petitioner that respondent No. 2 forcibly occupied the portion in question on 29.8.78 even prior to the making of the allotment order. On 4.9.78 the landlady moved an application under Section 16(5) of the Act for cancellation of allotment order on the plea that she had not been given any opportunity of contesting the allotment proceedings and according to her there was no vacancy. By way of caution, the landlady also moved application on 14.7.79 for the release of the property in her favour. In the case which the petitioner had filed under Section 21, respondent No. 2 filed objections and those objections were rejected by the Prescribed Authority on 30.9.79 and by a subsequent order the accommodation was released in favour of the petitioner. Respondent No. 2 filed Rent Appeal No. 139/1981 and the same was dismissed by the District Judge by the order dated 29.1.1982.

(2.) THE petitioner's application moved under Section 16(5) of the Act was also allowed by the Rent Control Officer by the order dated 10.2.1979 and the order of allotment made in favour of the Respondent No. 2 was cancelled and the accommodation in question was released in favour of the petitioner. Respondent No. 2 filed revision against the said order which was allowed by Additional District Judge by the order dated 5.9.1981 and the revisional court was of the opinion that the order of allotment was cancelled by the R.C. and E.O. on the assumption that the same was passed in less than three days of the declaration of vacancy on 30.8.1978 whereas in fact the vacancy was notified on 26.8.78. It was also urged on behalf of the landlady before the revisional court that since she had not been served with any notice of the allotment proceedings, the order of allotment was rightly cancelled by the R.C. and E.O. The revisional court held that the question about the service of notice was very material but the same was not gone into by the Rent Control Officer, therefore the revisional court remanded the case to the Rent Control and Eviction Officer for deciding the matter afresh in accordance with law and in the light of observations made in the order. The landlady filed writ petition No. 13281/1981 before this court but the same was dismissed by the order dated 21.7.1983. After the remand, the Rent Control and Eviction Officer heard the matter again and he came to the conclusion that there has been no compliance of Rule 8(2) as the Rent Control Inspector had made no attempt to contact the landlady. He further observed that there was no evidence on record to prove compliance of Rule 9(3) as such the landlady had no notice of the pendency of allotment proceedings. On these findings, he cancelled the allotment order made in favour of respondent No. 2 and thereafter released the accommodation in question in favour of the landlady. Respondent No. 2 then filed Rent Control Revision No. 178/1984 which has been allowed by VIth Additional District Judge by impugned order dated 5.6.84 (Annexure -8).

(3.) LEARNED counsel for the petitioner argued vehemently that when it had been clearly held by the Rent Control and Eviction Officer that there has been no due compliance of Rule 8(2) inasmuch as there is no evidence on record to indicate that the Rent Control Inspector had made any efforts to inquire from the landlady, there was hardly any justification for the revisional court to have once again remanded the case. He further contended that the revisional court has totally ignored the other finding of the Rent Control Authority that there was no compliance of Rule 9(3), which is of a mandatory nature. On the basis of these findings the impugned allotment order was not sustainable in law and therefore the revisional court has committed a gross error of law in remanding the case to the court below.