R. B. Mehrotra, J. - (1.) BY means of present writ petition, under Article 226 of the Constitution, the petitioner has challenged the order of the Rent Control and Eviction Officer, Rishikesh, District Dehradun dated 2-5-86, by which the Rent Control and Eviction Officer rejected the petitioner's application for treating the premises in dispute to be vacant and the order dated 11-7-88 of the Additional District Judge (III) Dehradun, dismissing the petitioner's revision, filed against the order of the Rent Control and Eviction Officer dated 2-5-86.
(2.) THE controversy involved in the' case is as to whether the premises- in dispute has fallen vacant or not ? THE two courts below have held that the tenant respondent no. 3 continued to be the tenant of the premises in dispute and the premises did not fell vacant under the provisions of section 12 (3) of the Uttar Pradesh Urban Building (Regulations of letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act'). The necessary facts, for the decision of the case in brief, are as under : The accommodation in dispute is a portion of Dharmshala known as 'Asha Mai Dharmshala' situated at Haridwar Road, Rishikesh and is managed by a Trust. The petitioner is the President of the Trust. In the year 1958, the accommodation in dispute, comprising of four rooms (16' x 12'; 14' x 12' and 12' x 12' alongwith Varandah, kitchen, latrine, bath and one room 12' x 8', which was used as a shop) was let out to Chatar Sen Jain, respondent No. 3. Admittedly the accommodation in dispute was let out for residential purpose. In the year 1967, the respondent no. 3 purchased of premises of 6-Malviya Road, which situates within the municipal limit of Rishikesh. The case of the petitioner is that after purchasing aforesaid property, the respondent no. 3 constructed the said house and added number of living rooms. The said construction was done without taking permission of the Municipal Board. Consequent thereto, a notice was given by the Nagar Palika to respondent no. 3 in reply of the said notice, which has been filed as Annexure 2 to the writ petition, which is not disputed the respondent no. 3 stated that the house, which the respondent no 1 has purchased has not yet been completed and the reply should be treated as an information that the respondent no. 3 is going to construct the house. By another letter, addressed to Executive Officer, Municipal Board, Rishikesh, the respondent no. 3 prayed for sanction of his map, wherein it was stated that on the northern side of the house in upper portion a two room flat is being constructed and rest of the house remains the same. The map should be sanctioned at a very early date. Along with the aforesaid letter, a map was also enclosed. This letter and the map ha s been filed as Annexures 3 and 4 to the writ petition The petitioner further alleged that initially there were three rooms in the building, when it was purchased by the respondent no. 3. Respondent no. 3 subsequently constructed 8 more rooms, kitchen, latrine and bath rooms. It has also been stated by the petitioner that apart from this, the respondent no. 3 has also constructed a big market comprising of 37 shops at Railway Road, Rishikesh. However, the said statement has no relevance to the controversy involved in the present matter. The controversy involved confines to the question as to whether after constructing a new house at 6-Malaviya Road, and having shifted with his family from the house in dispute to premises at 6-Malviya Road in the same city, whether the house in dispute has fallen vacant under section 12 (3) of the Act or Not.
(3.) THE case has a chequered history. One Sri Y. P. Dhuliya made an application on 4-3-82 for allotment of the premises in dispute on the ground that the respondent no. 3 has built a residential building in the same city and has shifted residence from premises in dispute. THE building is vacant under the provisions of section 12 of the Act. As such, the same should be allotted to the applicant. On the application of Sri Y. P. Dhuliya, the Rent Control Inspector visited the premises on 4-3-82 and found that the respondent no. 3 was in occupation of four rooms, kitchen, latrine, bath and one shop at 6 Malviya Road, Rishikesh. A copy of the report of the Inspector has been filed as Annexure 5 to the writ petition. On the request of the respondent no. 3, an inspection was made by the Rent Control and Eviction Officer himself on 13-7-82, who in his inspection note, stated that respondent no. 3 was not using the accommodation in dispute for residential purpose but had only stored sacks in the room. THE copy of the inspection note has been filed as Annexure 6 to the writ petition. After exchange of affidavits and hearing parties, the Rent Control and Eviction Officer by his judgment dated 27-8-82, declared the permises to be vacant. THE contention of the tenant that the accommodation in dispute was not a residential accommodation was negatived. However, later on, an application made by respondent no. 3, the Rent Control and Eviction Officer by his order dated 22-12-82, reviewed his earlier order dated 27-8-82 and held the premises in dispute is not vacant Aggrieved by the aforesaid order, the petitioner preferred a revision to the learned District Judge, who allowed the revision by his order dated 23-9-83 and held that the application for review itself was not maintainable. Aggrieved by the aforesaid judgment of the District Judge, the respondent no. 3 filed a writ petition, which was numbered as writ petition no. 11781 of 1983 and this Court dismissed the writ petition vide its judgment dated 17-4-83. At that stage, the Hon'ble High Court took a view that the question of vacancy can be decided at a stage, when the premises is either allotted in favour of some body or the same is released in favour of the landlord. THE question of vacancy was left open by the High Court to be decided after the premises in dispute is either released in favour of the petitioner landlord or is allotted in favour of some body else, Subsequent to the judgment of the Hon'ble High Court, the premises in dispute was released in favour of the petitioner by the order of the Kent Control and Eviction Officer Rishikesh, Dehradun dated 25-4-84.;