V.D. Bhargava, J. - (1.) THE Applicant has filed this writ petition Under Article 226 of the Constitution challenging the order of the Commissioner.
(2.) ACCORDING to the petition the Applicant was a retired railway employee and owned a small house in the city of Mathura i.e. House No. 1365, Ghati Bahal Rai, Mathura. The house was in the tenancy of one Sri Jiwari Lal Mukhtar, who vacated it. Thereafter, the Applicant applied for the allotment of the house to him as after his retirement he wanted to remain there. Alter due enquiries it was found that the need of the Applicant was a genuine one and house was released in his favour. The Applicant continued to live in the house. It has further been alleged that during this period one of his nephews was appointed as an assistant teacher in the K.R. Inter College, Mathura and was without any accommodation. The Applicant allowed his nephew the use of one of his rooms for a two months till he was able to make any arrangement for another accommodation. The Applicant had two sons, who are employed at Agra and Jaipur. As he is a retired man, often he goes to see his sons at Agra and Jaipur. During his temporary absence, when once he had gone out of Mathura to Agra and over stayed due to the illness of his own wife, opposite party No. 3 in January 1956 made an application for allotment of the house in question. The application was made on the ground that the house was vacant. It had not been mentioned in the application that the house had been vacated by any one else and the Applicant was not Jiving there. The RC and EO issued a notice to the Applicant asking him to show cause, why he failed to intimate the vacancy of the house in dispute, which was reported to have fallen vacant. The notice could not be served on the Applicant as he was at that time not staying at Mathura. There was another notice issued allotting the house in favour of opposite party No. 3. The Applicant received information about the notice of allotment on 16 -3 -1956, at Agra. He filed objections before the RC and EO on 17 -3 -1956, stating that the house was not vacant and the address which had been given by the opposite party No. 3 was a wrong address. A report was called for from the Inspector and he said that it appears that the Applicant had been letting out his house to different persons, but "at present the house is vacant and is in the formal possession of the owner who is now a days out of station." No notice Under Section 7A(1) asking the Applicant to show cause why he should not be evicted from the house in question nor any notice Under Section 7A(2) fixing any time within which the Applicant might be called upon to vacate the house in question was served on the Applicant. So far as the Applicant has been able to ascertain no such notice was issued. On 11 -6 -156, the matter came before the RC and EO. On that date a final notice was issued for the delivery of possession to the allottee, who styles himself as P.A. to the Mansfield had influence over the Rent Control Office people. Then the Applicant came to know of the notice. The possession was actually delivered on 14 -6 -1956, to the allottee and all the luggage belonging to the Applicant, which was in the house, was given in the supurdagi of Sri Krishna Kant. When the Applicant came back to Mathura he found opposite party No. 3 living in the house and thereafter he got his goods from the supurdagi of Krishna Kant. He then made an application to the RC and EO praying that he may be put back into possession of the house. That application had been rejected. An application in revision was filed to the Commissioner who on 11 -8 -1957, allowed the revision, set aside the order of the RC and EO and directed him to proceed in accordance with the law. In spite of this order the opposite party No. 3 continued to be in possession. Therefore, an application was made by the Applicant for restoring the status quo ante. By an order dated 25 -7 -1958, the RC and EO directed; opposite party No. 3 to make arrangement for vacating the house within a further period of one month Against that order the opposite party No. 3 filed a revision to the Commissioner, Agra Division, Agra, This time the Commissioner was another gentleman and he by his order dated 10 -10 -10 -1958, allowed the aforesaid revision and cancelled the order of the previous Commissioner dated 11 -8 -1957. Aggrieved by that order this writ petition has been filed. Inter alia, the grounds that have been taken are that the RC and EO had no jurisdiction to allot the house because the house had all along been in possession of the Applicant -landlord; that the Commr., when he passed the order dated 10 -10 1958, had no jurisdiction to sit in appeal over his predecessor in office; and that there could have -been no allotment without proper proceedings Under Sections 7A(1) and 7A(2) of the Act. It was further contended that it is open to a landlord to keep his house closed, if he has to go to meet his sons outstation and in that event, the house could not be deemed to be vacant.
(3.) SO far as, the first point is concerned, certainly if the house was not vacant the RC and EO would have no jurisdiction to allot. If the facts are as they have been alleged in the petition, that the Applicant had gone out only for a short time while keeping his luggage there, with no intention of leaving the house, then there would be no vacancy. But on the other hand if he had left the house and had an intention to sub -let it, then, in that event, the order of the RC and EO would be quite correct and the house certainly would be deemed to be vacant. It is always open to a person, particularly a retired person, to have a home for himself and if in the meantime, he is visiting his sons, he cannot be said to have finally vacated the house. That is a pure question of fact and will be determined at different stages of the proceedings. As regards the second question, I am definitely of the opinion that the Commissioner could not sit in appeal over the judgment of his predecessor in office. He had not been given any power of appeal and the order dated 10.10.1958, was wholly incorrect.;