S. J. Hyder, J. - (1.) ONE Baijnath Prasad was the tenant of the house in dispute in the town of Ballia and was paying rent to the third respondent Rajendra Prasad. Baijnath died about 10 years prior to the institution of this writ petition. He was survived by his son who lives in Bombay and his widow Smt. Ram Pati Devi who is petitioner before this Court. ONE Dr. Swastika Pandey made an application inter alia stating that the petitioner has allowed the house to be occupied by other persons who are not members of her family and in fact the petitioner lived at Bombay with her son. It was also averred by her that the house should be deemed to be vacant under Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act, and may be allotted in the name of the said Dr. Swastika Pandey. A report was called for by the Rent Control and Eviction Officer from the Rent Inspector and he submitted the said report on August 21, 1979. Petitioner filed a copy to the application of Dr. Swastika Pandey on September 6, 1979. On the same date an application was moved which was accompanied by an affidavit by respondent 3 for the release of the accommodation on the ground that the same was required by him bonafide for his personal use. On receipt of the said application the Rent Control and Eviction Officer directed the Inspector to make a fresh inspection. The Housing Inspector submitted his second report on October 22, 1979.
(2.) THEREAFTER a number of dates were fixed in the case but except on a few dates in the beginning, no one appeared on behalf of the petitioner. Finally the Rent Control and Eviction Officer by his composite order dated 19th December 1979 held that the house in dispute must be deemed to be vacant and released the same in favour of the third respondent. Aggrieved by the said order the petitioner preferred a revision under Section 18 of the Act before the District Judge. The said revision was also dismissed by an order dated May 5, 1980. There is no controversy between the parties in so far as the above facts are concerned. The petitioner has filed this writ petition and prays that the order of the Rent Control and Eviction Officer dated December 19, 1979 and that of the District Judge dated May 5, 1980 may be quashed by this Court. Two grounds have been urged on behalf of the petitioner in support of the relief sought by her. In the first place it is submitted that there was no evidence either before the Rent Control and Eviction Officer or the District Judge on the basis of which the accommodation in dispute could be deemed to be vacant under Section 12 of the Act. It is next submitted that in passing the impugned orders the aforesaid authorities have violated the provisions of Rule 8 of the Rules framed under section 41 of the Act. After moving her application for allotment Dr. Swastika Pandey did not take any further interest in the proceedings before the Rent Control and Eviction Officer. The lis however remained between the petitioner on the one hand and respondent no. 3 on the other and was decided on that basis by the Rent Control and Eviction Officer and also by the revisional authority. It may be pointed out that in the affidavit filed by respondent 3 before the Rent Control and Eviction Officer all that was stated was that the petitioner remained either in the town of Russra or with her son in Bombay. The two reports made by the Housing Inspector however clearly disclosed that the petitioner had substantially removed her effects from the accommodation in dispute and that the house was in the occupation of one Sat Narain who was not a member of the family of the petitioner.
(3.) THE first question to be considered is whether the report of the Rent Control Inspector could be deemed to be evidence on the basis of which it could be held that the petitioner allowed the accommodation in dispute to be occupied by a person other than members of her family. Section 34 of U. P. Act No. XIII of 1972 deals with powers of various authorities appointed under the Act and the procedure to be followed by them. One of the powers conferred in the said authorities is that of issuing commissions for examination of witnesses or documents or local investigations. Rule 8 of the Rules framed under the Act further empowers the Rent Control and Eviction Officer to obtain a report from the Rent Control Inspector in case of vacancy or deemed vacancy. That being so it cannot be legitimately argued that the report submitted by the Inspector is a mere waste paper and should not have been taken into account. It is further to be borne in mind that the report of a Commissioner appointed by a Court can be read as evidence even in a suit or other civil proceedings and forms part of the record. THE order passed by the Rent Control and Eviction Officer and by the District Judge in appeal cannot therefore be characterised as passed on no evidence. I have already pointed out above that the reply to the application of Dr. Swastika Pandey was filed by the petitioner on September 6, 1979. On the same date the release application was filed by respondent 3 and an order was passed by the Rent Control and Eviction Officer for a fresh inspection by the Rent Control Inspector, It is not disputed by the petitioner that on that date Satya Narain was present on her behalf in the office of the Rent Control Officer as her representative. The reply to the application of Dr. Swastika Pandey was filed by the petitioner through Sri Jai Vijay Narain and Sri Ishwar Saran Srivastava, Advocates. It is not possible to rely on the ipse dixit of the petitioner that she was unaware of the release application or of the order of the Rent Control and Eviction Officer passed on September 6, 1969. According to her own admission Satya Narain also appeared before the Rent Control and Eviction Officer on the next date of hearing when the case was adjourned because the report of the Rent Control Inspector had not been filed on record of the case. Petitioner does not dispute that she filed no reply to the release application moved by respondent no. 3. She also admits that she did not file any objection to the second report of the Rent Control Inspector. According to her she had to go to Bombay in connection with the illness of her son and came to know of the order passed by the Rent Control and Eviction Officer on her return from that place. When the petitioner's interest was being looked after by Satya Narain as pairokar and she had engaged counsels to represent her in the case petitioner's personal presence was not necessary. At all events if such presence was considered necessary an application could have been moved to the Rent Control and Eviction Officer for adjournment of the hearing. No such application was however made. In the rejoinder affidavit it is stated that Satya Narain had colluded with respondent no. 3 and he kept the petitioner in the drak. Except for the belated statement of the petitioner made in the rejoinder affidavit about the alleged collusion of Satya Narain there is no other evidence to sustain this averment. Moreover there is no evidence on record besides the statement of the petitioner that her son had fallen suddenly ill at Bombay and she had to remain absent for a long period from Ballia on that account. From the judgment of the District Judge it further appears that the points relating to the collusion of Satya Narain and the illness of the petitioner's son were not urged before him. I am, therefore, unable to place any reliance on the allegation to this effect now made in this writ petition.;