S.D.Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India arising out of proceedings under Sec. 16 (5) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).
(2.) BRIEFLY, the facts giving rise to the present petition are as under : The accommodation in dipute is the ground floor of Premises No. 96/18, Colonelganj, Kanpur. Smt. Kanti Khanna, respondent no. 3, was the tenant of the said premises. Since respondent no. 3 did not reside in the disputed premises and had shifted to Sitapur where her husband was posted as Additional District Judge, many applications were made by persons for allotment of the said premises. The Rent Control Inspector inspected the premises and submitted a report that no one was residing in the premises in dispute for the last two years and that Sm. Kanti Khanna had shifted and was living with her husband at Sitapur. In view of the above report, the vacancy was notified on 23rd April, 1977, and, thereafter, the applications for allotment were considered and by an allotment order dated 16th May, 1977, the premises was allotted to the petitioner who took possession of the said premises thereafter. On 27th June, 1977 Smt. Kanti Khanna moved an application before the Rent Control and Eviction Officer under Sec. 16 (5) of the Act for reviewing the order of allotment on the ground that the disputed premises was not vacant and could not have been deemed to be vacant in the eye of law, as she had only temporarily gone to live with her husband, who was on a transferable post. It was further alleged that her son was taking training as a pleader in the Civil Court at Kanpur and, as such it was necessary for her to reside at Kanpur. The said review application was contested on the ground that in fact, Smt. Kanti Khanna was residing with her husband at Sitapur. Her son was also residing at Sitapur and was taking training at Sitapur and, as such, the premises was vacant and the allotment order, consequently, was a valid allotment order. The Additional District Magistrate, Kanpur, by his order dated 11th January, 1979, rejected the review application and upheld the validity of the allotment order. Aggrieved by the decision dated 11th January, 1979, Smt. Kanti Khanna filed a revision under Sec. 18 of the Act in the Court of the District Judge, Kanpur. The revision was, ultimately, allowed by the 1st Additional District Judge, Kanpur, by judgment dated 7th December, 1979. The petitioner has now challenged the order dated 7th December, 1979, by means of the present petition in this Court. Sri S. N. Verma, learned Senior Counsel on behalf of the petitioner, has urged that on the facts found by the Additional District Magistrate, which have not been reversed by the revisional Court, in law, it has to be held that Smt. Kanti Khanna has taken up residence elsewhere and, as such, the property has to be deemed vacant under Sec. 12 (1) (c) of the Act.
(3.) I have heard Sri Rajesh Tandon, learned counsel for respondent no. 3. It is significant to point out that Smt. Kanti Khanna did. not file any affidavit in support of the allegations which she had made in the review application. The Additional District Magistrate, after examining the evidence on the record, recorded a finding that Smt. Kanti Khanna and her son Peeyush Khanna are not residing at Kanpur and are residing with Sri. R. M. R. Khanna, the Additional District Judge at Sitapur, and, thereafter, they resided with him at his subsequent place of postings. It has been further found that the names of Smt. Khanna and her son Peeyush Khanna were included in the ration card issued first at Budaun and then at Sitapur. Smt. Khanna did not pay rent for the last two years to the landlord. She sent rent from Budaun for seven months, as she was not residing at Kanpur. Her ration card at Kanpur had been cancelled after due enquiry about her shifting to Kanpur. She did not pay electricity charges nor water dues for the accommodation in question. He further found that Sri R. M. R. Khanna had charged T. A. and D. A. for his transfer from Kanpur and from other districts, including the charges for transporting the house hold effects. In view of these findings, the Additional District Magistrate came to the conclusion that the property would be deemed vacant under Sec. 12 of the Act, both on the ground that Smt. Kanti Khanna had removed her effects from the building as well as on the ground that she had taken up residence else where.;