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Smt. Vidya Vati v. Ii A.D.J. - WRIT - A No. 14399 of 1982  RD-AH 1422 (26 May 2005)
Writ Petition No. 14399 of1982.
Smt. Vidyawati Petitioner
2nd Additional Distric Judge & others Respondents.
Hon. Vikram Nath, J.
This writ petition has been filed by the landlady for quashing the judgment and order dated 30.08.1982 and 12.07.1972,passed by respondent No. 1 and 2 respectively, whereby the ground floor portion has been allotted in favour of respondent no. 3 and the appeal against the same has been dismissed.
The dispute relates to part of house no. 87/88, Kishanpuri, Meerut of which the petitioner is the landlady. It is a double storey building. The petitioner is residing with other family members on the first floor of the building and using it for residential purpose. On the ground floor initially there was a school run by the Municipal Board, Meerut. The Municipal Board vacated the premises in the year 1972 and, thereafter, by order dated 12.07.1972 the Rent Control and Eviction Officer allotted the premises of the ground floor portion in favour of respondent No. 3. According to the petitioner, the order of allotment dated 12.07.1972 was exparte, however, when the petitioner landlady learnt about the same, she filed an appeal on 27.07.1972 under Section 43(2)(k)(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The appellate Court remanded the case to the Rent Control and Eviction Officer to record a finding as to whether the accommodation allotted to the opposite party no. 3 was a portion of the accommodation occupied by the petitioner. The respondent no. 3 gave opportunity to the parties to lead evidence and, thereafter, vide order dated 29.08.1973 held that the accommodation allotted to opposite party no. 3 does not form portion of any accommodation occupied by the petitioner. The petitioner not being satisfied with the finding of the Rent Control & Eviction Officer, filed objections before the appellate Court and also filed an application that local inspection be issued, in as much as the earlier inspection was made in her absence and without notice to her. The Appellate Court disagreeing with the objection and the application filed by the petitioner, vide judgment dated 27.04.1974 dismissed the appeal. Aggrieved by the same the petitioner filed Writ Petition No. 6184 of 1974 before this Court, the said writ petition was allowed by this Court vide judgment dated 06.09.1977 and the matter was remanded to the appellate Court for reconsideration of the matter in the light of the observations/directions contained in the remand order. This Court while remanding the matter in particular directed the appellate Court to consider:-
(i)The effect of their being a common main door for both the parties;
(ii)To consider the effect of gallery on the ground floor being commonly used by members of the family of the landlady and the tenant, for parking cycles etc.
(iii)The effect of their being no latrine on the ground floor and the occupant of the ground floor would go to the first floor through the stair case,
(iv)The affidavit filed by the petitioner had not been taken into consideration by the appellate Court.
This Court while, remanding the matter also left it open to the learned District Judge (Appellate Court) to appoint any local commissioner for the purpose.
The petitioner filed copy of the judgment of this Court and also filed an application for appointment of local commissioner to submit report with regard to the specific points raised by her as was also observed in the judgment of this Court dated 06.09.1977:-
The appellate Court called for the commissioner report, which was submitted by Sri Mahendra Kumar Advocate on 10.04.1979. The Appellate Court after inviting objections to the commissioner report proceeded to decide the appeal finally. After considering the contentions of the both sides as well as the record and also the newly obtained commissioner report came to the conclusion that there was nothing which may be common for the allottee and the landlady which may cause inconvenience to the landlady from the side of the allottee respondent. He further recorded finding based upon the report of the commissioner that both the occupants could conveniently live without any interference in the day-to-day living of the each other. On these findings the appellate Court vide judgment dated 30.08.1982 dismissed the appeal.
Aggrieved by the same present writ petition has been filed by the landlady.
There is no interim order granted by this Court and the stay application was rejected vide order dated 09.12.1982
Sri P. K. Jain, learned counsel for the petitioner has strongly contended that the finding recorded by the appellate Court with regard to two portions in occupation of the landlady and tenant were independent of each other and the day today living was not disturbed, is not correct and contrary to the evidence on record.
I have examined the record and also considered the submissions made by the petitioner. It was pure question of fact as to whether there was any over lapping of accommodation or that there was any interference in day-to-day living of the landlady and the tenant. Earlier also the court had held that no part of the accommodation in occupation of the landlady petitioner had been allotted to the tenant. Further even after the remand by the High Court fresh commission was issued and based upon that the appellate Court again recorded fresh findings dealing with specific objections raised by the petitioner and came to the conclusion that there was no interference in the day to day living and also that there was no over lapping of accommodation. The finding so record was finding of fact based upon appraisal of evidence and as such cannot be interfered with in writ jurisdiction.
The other contention of the petitioner that the order of allotment was bad as no notice was given also cannot be allowed to be raised in as much as in the earlier round of litigation the High Court while remanding the matter vide judgment dated 06.09.1977 had only confined to the applicability of Rule 7 which provides for taking into consideration the wish/desire of the landlord while allotting any portion of the same building part of which is occupied by the landlord and may be in common to the two tenements. In the present case it has already been found that there was nothing in common in the two tenements which may cause inconvenience to any of the parties and, therefore, Rule 7 had no application.
In view of the above the petition lacks merit and is liable to be dismissed.
The petition is, accordingly dismissed but without any costs.
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