- (1.) ANJANI Kumar, J. This writ petition, after hearing learned Counsel for the parties, was allowed by me vide my order dated 9th May, 2002 for the reasons to be recorded later on. Now here are the reasons for allowing the aforesaid petition.
(2.) PETITIONER, who is the tenant of the building in question, has filed the present writ petition challenging the orders passed by the authorities below, as would be clear from the fact that he has deposited the rent under Section 30 of the U. P. Act No. 13 of 1972, hereinafter shall be referred to as the Act, before the Court below concerned and since then matter is pending. The brief facts of the case are that the respondent-landlord filed an application for release of the building in question whereupon the Rent Control and Eviction Officer (Prescribed Authority) directed the Rent Control Inspector to submit inspection report who on its turn, has submitted his inspection report dated 4-8-1998 and found that at the time of inspection one Chhote Miyan met at the spot and he informed that in the building in question there are four rooms on the ground floor and two rooms only are on the first floor. He further stated that in the year 1987, his father had permitted the petitioner Mohd. Gani son of Lalu to live in one room situated at the first floor, but subsequently petitioner has forcibly occupied remaining one room on the first floor and one room on the ground floor and allowed the same to be occupied for his brother and nephew, namely, Maqsood and Raju respectively and further on inspection it was found that in the room situated on the ground floor, the son of Maqsood and his family members have occupied the same as unauthorised occupants and he himself is living out since 1999. The Inspector further submitted that on the spot petitioner Mohd. Gani, his wife and sons were met and stated that they are living in the said room for past 20-25 years with the consent of the landlord and the rent of the building in question is being deposited in the Court. On the basis of the aforesaid report, a case was registered and notices were issued to the parties. The Prescribed Authority declared the vacancy vide its order dated 19-8-1999, Annexure 7 to the writ petition and directed the matter to come up for further hearing on 8-9-1999. The petitioner has filed an application dated 25-8-1999 to the effect that he had filed number of documents to demonstrate that they are living in the building in question for more than 30 years, but all these documents and file have been misplaced or deliberately removed from the records, therefore, the order dated 19-8-1999 may be recalled and the applicant may be afforded an opportunity of hearing and the matter may be decided. No orders, it appears to have been passed on the application dated 25-8-1999 filed by the petitioner, whereas the another application that has been filed by the contesting respondent under Section 16 (1) (b) of the Act was allowed by the Prescribed Authority for release of the building in question. Since the Prescribed Authority vide its order dated 22-7-2000 has held that since the building has already been declared vacant by the order dated 19-8-1999 and the application dated 25-8-1999 has been filed by the petitioner after the declaration of the vacancy, therefore, the order declaring the vacancy cannot be recalled. The Prescribed Authority vide its order dated 22-7-2000 released the building in question in favour of the landlord. Aggrieved thereby petitioner filed a revision before the Respondent No. 1. The said revision has been dismissed summarily by the District Judge concerned relying upon a decision of this Court reported in 1992 ARC 174, Brijpal Singh v. Ist Additional District Judge, in which it has been held that a person, who has been declared to be an unauthorised occupant, cannot filed a revision. He therefore, dismissed the revision filed by the petitioner. Learned Counsel for the petitioner has submitted that even assuming that the revision was not maintainable by means of this petition, he has challenged the orders passed by the Prescribed Authority declaring the vacancy and further refusing to review the order for which an application was filed on 25-8-1999 by the petitioner on the ground that once a tenancy has been declared vacant, the same cannot be reviewed.
(3.) NEEDLESS to say that the aforesaid view of the Prescribed Authority is not correct. If it is presumed that no revision lies, then the recall application cannot be rejected in such a summary manner as has been done by the Prescribed Authority without considering the documents, which were already on record, but are said to have been deliberately removed or misplaced from the record. In either situation, it was incumbent on the part of the Prescribed Authority to have afforded an opportunity to the petitioner to substantiate his stand that he is living in the building in question since before coming into force the U. P. Act No. 13 of 1972. The petitioner has referred to the documents which were filed but now have been removed or misplaced from the record. In these circumstances either the petitioner should have been given an opportunity to file the copies of these documents again, or an enquiry should have been directed to be conducted under what circumstances these documents which according to the petitioner have been filed but were subsequently misplaced. Without entering into this controversy from the evidence on record of the writ petition, it can be clearly seen that petitioner Gani Master is living in the building in question with the consent of the landlord since before coming into force U. P. Act No. 13 of 1972. In these circumstances the order of the Prescribed Authority dated 19-8-1999, Annexure 7 to the writ petition, deserves to be quashed and the order dated 22-7-2000, Annexure 9 to the writ petition releasing the building in question being consequential order also deserves to be set aside. The view taken by the Revisional Court that no revision lies at the instance of the petitioner is also liable to set aside and is hereby set aside in view of what has been stated above.;