S C Verma, J. - (1.) -This petition is directed against the order dated 10-1- 1987 passed by the IV Additional District Judge, Kanpur Nagpur under section 18 of U. P. Act 13 of 1972, here in after referred to as the Act The Matrix of the Act case, in short, is as follows.
(2.) TWO applications for allotment of Quarter No 47/1 and 52/1-2 of premises No. 36/51 Ram Das ka Mandir, Chatani-Monal, Kanpur were moved alleging that the out going tenant Raghu Nath Prasad has removed his belongings and has shifted to his village residence and has locked the premises for the last 8 or 9 months and there is a vacancy. The report of the Rent Control Inspector was also obtained to the same effect- The Rent Control and Eviction Officer issued notices to the outgoing tenant and the landlord. The present petitioner who was the tenant of the disputed premises filed objections stating that he is the tenant of the disputed premises for the last 20 years and living there in with his brother and family. The premises were never locked nor any enquiry was made by the Rent Control Inspector in bis presence and the report is fictitious which is in collusion- with the Munim of the landlord. The petitioner also filed rent receipts and other evidence to indirate that he was in actual occupation of the disputed premises. The Rent Control and Eviction Officer, after bearing the parties, vide his order dated 31-8-1985 held the petitioner to be in occupation and further held that the premises were not vacant and open for the purposes of allotment. Respondents Nos. 1 and 2 filed Revision against the order dated 31-8-1985 under section 18 of the Act The learned Additional District Judge has allowed the revision by the impugned order and set aside the findings with regard to the declaration of vacancy and declared the premises vacant directed the Rent Control and Eviction Officer to consider the case of the applicants for allotment of the premises. The learned judge was of the opinion that the tenant Raghu Nath Prasad was not living in the disputed house for the last several years and had sublet the same to one Radha Krishna Katiyar who had also constructed his own house and who delivered unauthorised possession to one Ram Narain. The Rent Control and Eviction Officer committed manifest error of law in disbelieving the report of the Rent Control and Eviction Officer. Since the tenant has substantially removed his effects and has allowed it to be occupied by Ram Narain who is not member of his family, there would be deemed vacancy. The aforesaid order dated 19-1-1987 under section 18 of the Act has been challenged in the present petition only on legal grounds. It has been contended by the learned counsel for the petitioner that after the amendment of section 18, the scope was greatly changed and the right of appeal has been substituted by a right of Revision on the grounds Identical to those as set out under section 115 of the Code of Civil Procedure. The order of the Rent Control and Eviction Officer by which it has been declared that there does not exist any vacancy can not be questioned in proceedings under section 18 of the Act. The Revision provided under section 18 of the Act is against an order of allotment or release and not agaiast a notification of vacancy The learned Judge has committed manifest error of law in interfering with the findings of fact recorded by the Rent control and Eviction Officer which are neither perverse nor wrong nor there is any error of jurisdiction which may call for interference under section 18 of the Act.
(3.) IN support of his contention, the learned counsel for the petitioner relied on the case Ganpat Roy v Additional District Magistrate. AIR 1985 SC 1635. The learned counsel for the respondent, in spite of the case being squarely covered by the proposition of law laid down in the aforesaid ruling, contested and tried to justify the order of the Revisional Authority regarding declaration of vacancy being a jurisdictional fact and the omission to consider the relevant evidence amounts to illegal exercise of the jurisdiction and as such was rightly interfered under section 18 of the Act. The learned counsel in support of his argument cited the decision S. Rama Iyer (deceased) v. Sundaresa Ponnapoondar. AIR 1966 SC 1431. Omkar Nath Avasthi v. V Addl. District Judge. Bareilly, 1985 (1) ARC 358, Satish Chandra Sharma v. Resident Magistrate, Haridwar, (987 (1) ARC 310, however, in the present case the order by which the findings of fact have been set aside by the Revisional Court does not indicate that they have been set aside on the ground that any preliminary fact upon the existence of which the jurisdiction has been in correctly exercised or the jurisdiction was exercised illegally or with material irregularity. The law laid down in Ganpat Roy's case (supra) specifically provides. "Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and there after vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to restudicata. IN such an event it would be difficult to say that he can exercise his right of review on the ground that there was no vacancy. This would equally apply where an order of release is made. Further the revision which is provided for under section 18 is against an order of allotment or release and not against a notification of vacancy and an issue. Which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises can not be reagitated in Revision......... In our opinion, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding A petition under Article 226 or 227 of the Constitution filed by such a tenant in order to challenge that finding cannot therefore, be said to be premature.;