- (1.) O. P. Garg, J. These are two writ petitions in relation to the declaration or otherwise of the vacancy in respect of shop existing in a portion of premises No. 32/3, Dakshini Civil Lines, Arya Samaj Road, district Muzaffarnagar. It is an indubitable fact that one Mahesh Kumar Agarwal is the landlord of the said premises. It is further admitted that Vijay Pal Goyal (petitioner in writ petition No. 9597 of 2001) is in occupation of the said accom modation with effect from 12-6-1991 without any order of allotment. One Praveen Gupta (petitioner in writ petition No. 34797 of 2000) moved an application on 1-7-1999 with the assertion that the possession of Vijay Pal Goyal over the disputed accommodation is unauthorised as he was let into possession by the landlord without an order of allotment in contravention of the provisions of Sec tions 11,12,13 and 17 of U. P. Act No. 13 of 1972, hereinafter referred to as the Act'. After the required enquiries and report the Rent Control and Eviction Officer by order dated 25-5-2000 held that there has been no deemed vacancy as the provisions of the Act do not apply to the accommoda tion in suit. Against the said order Praveen Gupta filed a writ petition No. 34797 of 2000. He also filed a revision application under Section 18 of the Act before the District Judge, Muzaffarnagar. The Dis trict Judge by the impugned order dated 19-2-2001 allowed the revision applica tion and remanded the case for decision afresh on the question of declaration of vacancy by the Rent Control and Eviction Officer on the ground that there was on record a certificate of the Executive Of ficer which indicated that the construction of the premises in question was reported to have been carried out prior to 1-4-1982, the date on which the first assessment came into being. The order of remand has been challenged by Vijay Pal Goyal in writ petition No. 9597 of 2001.
(2.) SRI N. C. Rajvanshi, Senior Advo cate, appears on behalf of Vijay Pal Goyal while SRI Pramod Kumar Jain appears on behalf of the landlord Mahesh Kumar Agarwal as well as the prospective allottee Praveen Gupta. Both the parties' Counsel have agreed that since the identical ques tions of law and fact have been raised in both the writ petitions they may be decided on merits. In view of the agreement arrived at between the parties, I proceed to decide the writ petitions by this common order. SRI Rajvanshi urged that the revision filed by the prospective allottee under Sec tion 18 of the Act was not maintainable. SRI Jain repelled the submission on the strength of the decision of the referred order passed by the Apex Court. So far as the question of main tainability of the revision application of the prospective allottee before the District Judge is concerned, the law or the point is clear. In a recent decision of this Court reported in2000 (2) ARC316, Munishwar Chandra Gauri v. District Judge, Ghaziabad and others, it has been held that the revision application against the order refusing to declare the vacancy is not main tainable under Section 18 of the Act. Various observations made by this Court in the said case were based on the earlier decision of the Apex Court in the case of Ganpat Roy v. Additional District Magistrate and others, 1985 (2) SCC 307: 1985 (2) ARC 73: 1985 SCFBRC 279. Sri Pramod Kumar Jain pointed out that the revision application was maintainable in view of the decision of the Apex Court in the case of Achal Misra v. Rama Shanker Singh, 2000 (2) ARC 446: 2000 SCFBRC 379, in which it was held that a revision application under Section 18 of the Act is maintainable and the correctness of the decision made in Ganpat Roy's case was doubted and therefore the matter has been referred to for opinion by a Larger Bench of the Apex Court. Sri Rajvanshi pains tankingly distinguished Achal Misra's case (supra) and maintainable that the revision application undoubtedly is maintainable against the order of release/allotment passed consequent upon the declaration of deemed vacancy but in the case of order of mere declaration of vacancy, no revision application lies. In the circumstances of the case, that no order of allotment or release has yet been passed, I feel inclined to come to the conclusion that the revision application filed by the prospective allot tee before the District Judge under Sec tion 18 of the Act against the order dated 25-5-2000 was not maintainable. Conse quently, the impugned order of remand passed by the District Judge, which is sub ject matter of challenge in writ petition No 9597 of 2001 was of no consequence. Thus writ petition No. 9597 of 2001 suc ceeds an is to be allowed. Now I come to the other writ peti tion No. 34797 of 2000 in which the order of non-declaration of vacancy has been challenged by the prospective allottee. Sri Pramod Kumar Jain learned Counsel for the petitioner pointed out that the learned Rent Control and Eviction Officer has erred in overlooking and ignoring the entry of reporting of the construction prior to 1- 4-82 with the result he was swayed away with the entry of the first assessment. If there is some material avail able on record to show that the construc tion came into existence prior to the date of first assessment and there is reporting of this fact in that event that will be the date of construction of the building. In this con nection reference was made to explana tion-1 of sub- section (2) of Section 2 of the Act. Reliance was also placed on the decision of Apex Court in Surendra Kumar Jain alias Sunni v. Shanti Swaroop Jain, 1996 SCFBRC 172:1996 (1) ARC 316. Sri Jain pointed out that in the assessment order a copy of which is Annexure-6 to the writ petition No. 34797 of 2000, there is an entry in column No. 12 that "naksha Sahmahi 1-1-81 se 31-3-81 dwara 1-4-82 se ankan 2401- salana greh kar (ijafa) Kayam Huwa". On the strength of the said entry Sri Pramod Kumar Jain urged that it is well established that some reporting had taken place about the construction of the build ing much before 1-4- 1982. The effect of this entry has not been considered by the learned Rent Control and Eviction Of ficer. Sri Rajvanshi pointed out that this entry does not make any sense. There is no record to indicate that the reporting had taken place with regard to the construc tion of the house in question before 1-4-1982. It was also pointed out that certifi cate issued by the Executive Officer on the basis of the said entry, which is Annexure-4 of the aforesaid writ petition has no evidentiary value. Be that as it may, even if the certificate in question is ignored the fact remains that there is an entry in the assessment register -itself which indicates that there has been some survey on the basis of which assessment with effect from 1-4-1982 came into being. I find that it would be proper if the matter is given a fresh look by the Rent Control and Eviction Officer. Since I am going to remand the matter for decision afresh by the Rent Con trol and Eviction Officer. I refrain from making any observation touching the merits of the said entry, lest it may prejudice the interest of either of the parties.
(3.) BOTH the writ petition are, there fore, allowed. The order dated 19-2-2001 passed by the learned District Judge which is subject matter of challenge in writ petition No. 9597 of 2001 is quashed as the revision application was not sus tainable. The order dated 25th May, 2000 which has been challenged in writ peti tion No. 34797 of 2000 is also quashed with the direction that the Rent Control and Eviction Officer shall determine the question of deemed vacancy in the light of the entry made in column No. 12 in the concerned register, a copy of which is An-nexure-6 to the writ petition. The parties are directed to appear before the Rent Control and Eviction Officer alongwith a certified copy of the order on or before 19th April, 2001. Petition allowed. .;