SHRIRAM RASTOGI Vs. FIRST ADDL DISTRICT JUDGE GONDA

JUDGEMENT

(1.) BY the impugned order dated 24th October, 75 passed by Sri Avadh Saran Pathak, Rent Control and Eviction Officer, a portion of the house in question was allotted to Raj Narain Pandey, Vakil, Gonda. The petitioner is the owner of that house. On coming to know that an application for allotment of a portion of that house had been filed by the opposite party No. 3, the petitioner filed his objection before the Prescribed Authority con tending that the house was not at all vacant and was, therefore, not available for allotment. This contention did not find favour with the Prescribed Authority and he made the impugned allotment order, whereupon an appeal was preferred by the petitioner before the learned District Judge, Gonda who dismissed it with costs, vide his order dated 3rd December, 1975, a certified copy of which is annexure 3 to the writ petition. Both the aforesaid orders have been impugned in this writ petition on the ground that the portion in question which was allotted to the opposite party No. 3 was not vacant and was, therefore, not available for allotment and that he had all along been living in the said house. The petition has been opposed by the opposite party No. 2 namely, the Prescribed Authority on whose behalf a counter-affidavit has been filed by Chaudhari Wasimul Hasan in the office of the District Supply Officer, Gonda. No counter affidavit has been filed by the opposite parties 1, 3 and 4. As set out in the petition, the case of the petitioner is that he had never vacated the portion in question of the said house, that the whole house is in his occupation and his household goods and belongings are kept therein, that he was never informed by the Inspector that fee would make any inspection of the premises in question and that the entire proceedings were collusive. These averments have not been repudiated by the opposite party No. 3 in whose favour the portion in dispute has been allotted. The Supply Inspector has also not specifically denied the avernments made in the petition to the effect that the household belongings of the petitioner lie in the said premises. The Supply Inspector has deposed that the statements of certain respectable persons were recorded by the Inspector when he visited the spot the basis of which he concluded that the house was vacant. The Prescribed Authority as also the learned Additional District Judge have relied upon the report of the Inspector and have also referred to certain statement of the petitioner wherein he was said to have admitted that the house was vacant. I have heard the learned counsel and have also carefully gone through the impugned orders and the report of the Inspector. The Prescribed Authori ty, no doubt, has referred to certain statement of the petitioner said to have been recorded by him on 24th October, 1975 me. It has, however, been referred to by the judgment. I have scrutinised that judgment was actually stated by the petitioners. Authority says in his judgment that the petitioner had admitted that he had vacated the premises. Rather the petitioner appears to have stated that his grand-son was formerly receiving education at Gonda. It was the consistent case of the petitioner that he had never vacated the house, that his son had started Sarafa business at Lucknow and that he visits his son off and on. The fact that a person visits his son who resides else where would not mean that he has vacated his own house. Before the Prescribed Authority would acquire jurisdiction to allot a particular portion of the house, he must be satisfied that the portion in question is really vacant is deemed to be vacant. If it is not vacant, it would not be available for allotment and despite that if the allotment order is passed, it would be without jurisdiction. The Prescribed Authority as also the learned Additional District Judge seem to have placed reliance on the statement of the petitioner as also on the report of the Inspector. Latter document does not show that the Inspector had found as a fact that the house was vacant. Inspector had based his finding on the statement of certain witnesses who were also not very categorical on the point. This alleged statement of the petitioner was also not to the effect that he had vacated the house for good. The contention of petitioner that the Prescribed Authority as well as the learned I Additional District Judge have misread the evidence has, therefore, merits. The impugned order of allotment as also the order passed by the learned I Addl. District Judge on appeal, cannot therefore, be sustained. In the result, the petition is allowed. The order of the Prescribed Authority dated 24th October, 75 Annexure 2, and the order of the I Addl. District Judge dated 3rd December, 75 Annexure 3, are quashed. Costs on parties.