K.N.Singh, J. - (1.) THIS is a petition under Article 226 of the Constitution challenging order of the Rent Control Officer, Allahabad, dated November 2, 1974, allotting the house in dispute to respondent No. 3, S.P. Dwivedi, as well as against the order of the 7th Additional District and Sessions Judge, Allahabad, dated December 10, 1974 dis missing the petitioner's appeal against the order of allotment.
(2.) DR . S.N. Ghosh, the petitioner, is Professor and Head of the De partment of Applied Physics in the University of Allahabad. He was residing in house No. 20(44, Jawahar Lal Nehru Road, Allahabad, as a tenant for the last 14 years. He obtained two years' leave without pay from the University of Allahabad and joined Jadavpur Univer sity in West Bengal to establish and organise a department for the study of space science. The Executive Council of Allahabad Univer sity granted two years' leave to him with effect from April 26, 1974 during which period he was permitted to write books, deliver lectures to other Universities, visit foreign countries as Visiting Professor and join Universities. The petitioner's lien, however, continued to re main in the University of Allahabad on the post of Professor and Head of the Department of Applied Physics. He further continued to rte-main a member of the Executive Council and Academic Council of Allahabad University and in that connection he was required to at tend the meetings of the said bodies frequently. Before proceeding to Jadavpur University, Dr. Ghosh sent a letter to the Rent Control and Eviction Officer on April 27, 1974 and forwarded copy of the same to the District Magistrate and landlord informing them that he was temporarily going to Jadavptyr1 University and that he was not vacat ing the building in which he had been residing and he had no inten tion of leaving or vacating the house and that no action should be taken on any application for allotment unless information was given to him in that respect. It appears that S.P. Dwivedi, respondent No. 3 made an applica tion for allotment of the house in question. The Rent Control and Eviction Officer directed the Inspector to hold an enquiry and submit his report. On May 20, 1974 the Rent Control and Eviction Officer submitted his report and stated that on enquiry he found that one G.K. Mukherji was residing in the house. He suggested that notice be issued to G.K. Muknerji as to how he was residing in the house without any allotment order and further enquiry be made from the Vice Chancellor of the University of Allahabad to ensure correct posi tion as to whether the petitioner was to come back to the University again. The Rent Control and Eviction Officer did not hold any en quiry, instead he declared vacancy. The petitioner as well as respon dent No. 3 filed affidavits before the Rent Control and Eviction Officer1 and contested allotment proceedings. The petitioner contended that he had temporarily gone to Jadavpur University and he had not subs tantially removed his household effects from the house and G.K. Mukherji was residing in the house as caretaker to look after his be longings, there was no vacancy. His contention was, 'however, not accepted and the Rent Control and Eviction Officer by his order dated November 2, 1974 allotted the premises in question to respondent No. 3. The petitioner challenged that order in appeal before the District Judge but the order of allotment was affirmed in the appeal by the 7th Additional District and Sessions Judge, Allahabad, by his order dated December 10, 1974. Aggrieved the petitioner has filed the pre sent petition challenging the aforesaid two orders.
(3.) LEARNED counsel for the petitioner urged that since there was no vacancy no valid allotment order could be issued, the Rent Control and Eviction Officer acted without jurisdiction in allotting the house in question to the respondent No. 3. He further urged that the find ings recorded by the two authorities suffer from manifest errors of law and the findings are perverse. Both the authorities held that the petitioner had allowed G.K. Mujsherji to occupy a portion of the house although he was not a member of his family hence there was vacancy as contemplated by Section 12(1) (b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (here inafter referred to as the Act). Section 12 creates a legal fiction for deeming vacancy on the existence of certain circumstances enumerat ed therein. The section contains four sub-sections. Sub-section (1) is relevant for the purpose of the instant case which is in the follow ing terms: - "12. Deemed vacancy of building in certain cases-(1) A land lord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if- (a) he has substantially removed his effects there from, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary resi dent, elsewhere." ;