- (1.) R. H. Zaidi, J. By means of this peti tion filed under Article 226 of the Con stitution of India, petitioner prays for is suance of a writ, order or direction in the nature of certiorari quashing the order dated 22-3-2000 passed by the Rent Con trol and Eviction Officer, Dehradun declaring the building No, A-6, Madhp Ram Flats, for short 'building in dispute', as vacant in exercise of powers under Sec tion 16 read with Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972,for short, the Act" ).
(2.) THE facts of the case giving rise to the present petition, in brief, are that the respondent No. 2, Smt. Madhu Kukshal who happens to be daughter-in-law of the petitioner, filed an application for allotment of the house in dispute before the respondent No. 1, on the basis of which the said respondent directed the Rent Control Inspector to make local inspection and submit the-report. In compliance of the order passed by the Rent Control and Eviction Officer, the Rent Control Inspec tor is alleged to have inspected the build ing in question on 7-1 -2000, and thereafter submitted his report on 19-1-2000, sup porting the version of respondent No. 2, copy of which is contained as Annexure-2 to the writ petition. On the basis of the said report the Rent Control and Eviction Of ficer issued notices to the parties con cerned. THE petitioner filed an objection against the report of the Rent Control Inspector on 15-3-2000. THE case was thereafter fixed for 22-3-2000. It has been stated that on 22-3- 2000 all Courts includ ing the respondent No. 1 were closed on account of strike by lawyers. On the said date the petitioner reached the office of respondent No. 1 but Peshkar of respon dent No. 1 informed the petitioner that the record of the case shall be sent to the said respondent for fixing a day and she could enquire after lunch. Petitioner thereafter reached the office at 3. 30 p. m. where neither the Peshkar nor the respondent No. 1 was present. After waiting for some time she had to come back to her home. Till 23-2-2000 the office remained closed. It was only on 27-3-2000 when she reached the office of Respondent No. 1, she came to know that on 23-2-2000 the case was heard ex-parte and the house in dispute was declared vacant. She, therefore, had no option but to make an application to recall the said order, copy of the application to recall of the order dated 23-2-2000 has been filed as Annexure-6 to the writ peti tion. Since no orders were passed on the application filed by the petitioner to recall the order dated 23-2-2000, she had no op tion but to approach this Court and file the present petition. Learned Counsel for the petitioner vehemently urged that the order dated 23-2-2000 was passed ex- parte behind the back of the petitioner. The said order was, therefore, liable to be recalled. It was also urged that, under the facts and circumstan ces of the present case, the house in dis pute cannot be declared vacant as there was no vacancy either factually or legally. It was also submitted that the relations be tween the petitioner and respondent No. 2 were strained and civil and criminal cases between them were going on in different Courts. The impugned order dated 23-2-2000 was, therefore, liable to be quashed. On the other hand learned Counsel appearing for the respondent No. 2, Sri K. K. Arora, Advocate supported the validity of the impugned order. It was urged that the petitioner having substan tially removed her house-hold effects from the building in question and her son Anoop Kukshal has taken up residence at 3, Ugrakan Road, Dehradun, therefore, the building shall be deemed to be vacant under clause (a) and clause (c) of sub-sec tion (1) of Section 12 and sub-section (3) of Section 12 of the Act.
(3.) IN support of his submission learned Counsel for the petitioner relied upon the decision of the apex Court in the case of Harish Tandon v. Additional District Magistrate, Allahabad, 1995 (25) ALR184 (SC) and Anandi D. Jadhav (Dead) by LRs. v. Nirmala Ramchandra Kore and others, JT 2000 (4) SC 96: 2000 SCFBRC 245. IN the case of Harish Tondan (supra), the dispute was with respect to non- residen tial building, therefore, the law laid down in the said decision has got no application to the facts of the present case. Similarly, in the case of Anandi D. Jadhav (dead) by LRs. (supra), the apex Court interpreted the provisions of Sec tion 13 (1) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which are not analogous to the provisions of the Act. The law laid down in the case, in my opinion, supports the case of the petitioner to some extent in as much as even though the younger son of the petitioner, Anoop Kukshal, is alleged to have built the residential house but the petitioner cannot occupy the same or reside in it as of right as her son is not under any legal obligation to provide the petitioner a residential accommodation.;