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Virendra Kumar Awasthi v. Harish Chandra Mishra & Others - WRIT - A No. 41000 of 2001  RD-AH 15741 (8 September 2006)
Judgment reserved on 29.8.2006
Judgment delivered on 8.9.2006
Civil Misc. Writ Petition on No. 41000 of 2001
Virendra Kumar Awasthi. Petitioner
Harish Chandra Mishra and others. Respondents
Counsel for the petitioner:- Sri A.N. Sinha, Advocate
Counsel for the respondents:-Sri Sada Nand Shukla, Advocate
Hon'ble Rakesh Tiwari, J
Heard counsel for the parties and perused the record.
Brief facts of the case are that the dispute relates to premises no. 3/18 Vishnupuri Kanur which is a trust property known as Bholly Bhai Shairababu Trust of which the respondent nos. 2 and 3 are the trustees. The petitioner is tenant of the premises in question since 1964.
It is alleged that respondent no.1 filed an application for allotment of the house in question interalia, that the house in question is vacant. The Rent Control Inspector made inspection of the premises in question on the application of respondent no.1 and the Rent Control and Eviction Officer declared vacancy on 29.7.81 and on 15.2.82 it was allotted to respondent no.1. The petitioner filed a revision against the aforesaid allotment order which was allowed vide order dated 30.10.82 directing the Rent Control Officer to decide the case afresh. However, the order-dated 30.10.82 was not challenged by either party and it became final.
After the remand the case was decided a fresh and the house in question was found not vacant hence by order dated 7.6.86 the Rent Control Officer held no vacancy.
Aggrieved by the order dated 7.6.82 respondent no.1 filed writ petition no. 15715 of 1986 on the ground that Rent Control and Eviction Officer to hold no vacancy and direct the unauthorized occupants to be valid occupants. The writ petition was allowed vide order 17.11.99 remanding the matter back to the court below to decide it afresh for determination of following issues.
" 1. Whether there is any allotment in favour of Virendra Kumar Awasthi or not?
2. Whether the possession of Virendra Kumar Awasthi was regularization under Section 14 of the Act?"
After remand the Rent Control Officer by order dated 26.5.2000 has held that there does not exist any vacancy as the same is under the tenancy of the petitioner. Respondent no.1 filed an application under Sections 16(5) and 34(1) read with Rule 22 (F) of the Act for recalling the order-dated 26.5.2000 on the ground that the said order has been passed without hearing him. The petitioner filed objection to the said application. After hearing both the parties, the Rent Control Officer vide his order dated 12.11.2001 recalled the order dated 26.5.2000 and fixed 29.11.2001 for hearing in the matter.
Aggrieved by the aforesaid order dated 12.11.2001 the present writ petition has been filed.
The counsel for the petitioner submits that when the order has been passed after hearing both the parties it can not be reviewed by the authority concerned but in the instant case, the Rent Control Officer although has accepted the contention of the petitioner still illegally has allowed the review application of respondent no.1 and that the Rent Control Officer has no jurisdiction to pass the order dated 12.11.2001. He further submits that the impugned order dated 12.11.2001 is illegal and cannot be sustainable in the eye of law and the petition deserves to be allowed.
The counsel for the respondents submits that the order dated 26.5.2000 was passed without hearing the contesting respondents or his counsel and there was no notice to the contesting respondents for the dates 19.5.2000, 24.5.2000 or 28.5.2000 and the trial Court recalled the aforesaid order after recording clear cut findings to that effect. The Court below has not reviewed its order. He further submits that there is no illegality or infirmity in the order dated 12.11.2001 passed by the Rent Control and Eviction Officer, Kanpur City.
Counsel for the respondents has urged that the Rent Control and Eviction Officer in his order dated 12.11.2001 has not reviewed his order dated 26.5.2000 from any angle and has simply recalled his order on finding that giving opportunity of hearing to the contesting respondents is in the interest of justice; that a bare reading of the order dated 26.5.2000 would show that the Rent Control and Eviction Officer misdirected his findings and evaded the answer to the questions specifically directed to be decided by him under the order and direction contained in the judgment dated 17.11.99 passed in writ petition no. 15715 of 1986 and the Rent Control and Eviction Officer in his order dated 12.11.2001 has not gone into correctness or otherwise of his order dated 26.5.2000. It is submitted that the findings recorded by the Rent Control and Eviction Officer is concluded by finding on the question of fact based on the appreciation of un-rebutted evidence on the records as such needs no interference by this Court and prays that in the circumstances this writ petition be dismissed.
In the peculiar facts and circumstances of this case where one party alleges that Rent Control and Eviction Officer had heard the parties before recall of the order dated 26.5.2000 and the other alleges that he was not heard, it would be in the interest of justice to direct the Rent Control and Eviction Officer to decide the recall application afresh after hearing both the parties within a period of one month from the date a certified copy of this order is filed before him by either of the parties. The certified copy shall be filed before him within two weeks from today.
For the reasons stated above, the writ petition is allowed and the impugned order is quashed. The matter is remanded back for fresh consideration to the Rent Control and Eviction Officer as directed above.
No order as to cost.
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