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Ayodhya Prasad v. Xi A.D.J. And Others - WRIT - A No. 23442 of 1994  RD-AH 12868 (3 August 2006)
Civil Misc. Writ Petition No.23442 of 1994
XI Addl. District Judge and another
Hon. Sanjay Misra, J.
Heard Sri H.P.Misra, learned counsel for the petitioner.
By order dated 26.10.1994 ( passed on the order sheet) this court had presumed sufficient service of notice by registered post upon the respondent no.2. No one has put in appearance on behalf of respondent no.2.
By means of this writ petition, the petitioner challenges the judgment and order dated 5.5.1994 (filed as annexure-7 to the writ petition) passed by XI Addl. District Judge, Kanpur Nagar in Rent Revision No.67 of 1989.
The facts of the case are that the house no.94/95 Munna Lal Street, Parade, Kanpur Nagar consisting of first floor and second floor was declared vacant by the Rent Control & Eviction Officer by its notification dated 15.4.1989 a true copy whereof has been filed as annexure-2 to the writ petition. Upon said notification applications were invited for allotment of premises in question. Three applications were received by the Rent Control & Eviction Officer of which third applicant namely Ramesh Chandra did not pursue the matter. The petitioner and one Sri Man Singh applied for allotment. The Rent Control & Eviction Officer considered these applications under Rule 11 of the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction ) Act 1972 and consequently an
order of allotment was passed in favour of the petitioner u/s 16(1)(a) of the Act.
Feeling aggrieved, Sri Man Singh filed a revision under section 18 of the Act. The revisional court has proceeded to allow the revision and has remanded the case to the lower court for fresh decision in accordance with directions given therein. The ground upon which the revision has been allowed is that the notification dated 15.4.1989 provided that in view of a report of the Rent Control Inspector there is vacancy/ probable vacancy. Therefore, the revisional court has held that if it were a probable vacancy then it amounts to occupancy and therefore, the vacancy could not have been declared and he found that Rent Control & Eviction Officer was not competent to allot the portion which was not vacant. He has therefore, held that allotment order is bad in law and remanded the case back to the lower court.
A perusal of notification dated 15.4.1989 indicates that on the basis of a report of Rent Control Inspector a vacancy was found in the aforesaid premises and on the basis of the same report the Rent Control & Eviction Officer proceeded to declare the vacancy. Section 16 (1)(a) of the Act provides that the District Magistrate can require the landlord to let out any building which is or has fallen vacant or is about to fall vacant. The landlord had by an application dated 29.3.89 informed the Rent Control & Eviction Officer that the tenant Ramesh Dubey is going to vacate the premises in the near future and he has no objection if the same is allotted to Sri Ayodhya Prasad. It was as a consequence of the said application that the report was sought. The earlier tenant has neither protested nor objected to the declaration of vacancy and therefore, it cannot be said that
the same was in any way illegal. The vacancy was declared and allotment was made. In case the report was false and there was no vacancy the said tenant would have protested his dispossession. This has not happened in the present case. Therefore, the finding of the revisional court to the contrary cannot be accepted as correct. The allotment order was passed after considering the priorities as given in Rule 11. The Rent Control & Eviction Officer has discussed the case of both the parties and has concluded that the petitioner was entitled for allotment of the premises. No error can be found in the said order passed by the Rent Control & Eviction Officer nor can it be said that he had exercised his jurisdiction illegally or with material irregularity.
For the reasons stated above, the impugned order can not be sustained. It is therefore, set aside. The writ petition is allowed. No order is passed as to costs.
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