Sanjay Misra, J. - (1.) HEARD Sri A.N. Srivastava, learned Counsel for the petitioner. List has been revised. None has appeared on behalf of the respondents even in the revised list. By means of this writ petition, the petitioners seeks to challenge the order dated 30.5.1989 passed by the Rent Control and Eviction Officer declaring the vacancy of the premises in question, the order dated 3.6.1989 whereby Rent Control and Eviction Officer has allotted the accommodation in question in favour of the respondent No. 3 as also the judgment and order dated 28.5.1993 passed by the XIIth Additional District Judge, Kanpur Nagar in Rent Revision No. 89 of 1989.
(2.) THE brief facts giving rise to the instant proceedings are that one Jagdeo Singh was owner and landlord of the premises No. 8/60 Arya Nagar, Kanpur and the father of the petitioner was tenant of a portion of the said premises. After the death of the father, mother of the petitioner Smt. D.R. Sethi became tenant of the portion in question and after her death the petitioner claims to be tenant of the premises by virtue of section 3(a) of U.P. Act No. 13 of 1972. It is contended that after the death of the mother of the petitioner on 26.1.1988, the respondent -landlord got an allotment application filed whereupon the order dated 30.5.1989 declaring vacancy and order of allotment dated 3.6.1989 have been passed. The contention of the petitioner is that her objection was not considered by the Rent Control and Eviction Officer before passing the aforesaid orders nor he has considered her plea of being a tenant under section 3(a) of the Act. Being aggrieved the petitioner filed the revision and the Revisional Court has dismissed the revision mainly on the ground that once vacancy has been declared then the correctness of the order cannot be considered in a revision filed against an allotment order. It is stated that the Revisional Court has recorded in its order that the objection of the petitioner for treating her as tenant under section 3(a) of the Act was not considered by the Rent Control and Eviction Officer and that her objection was rejected only on the ground that she is not a member of the family as defined under section 3(g) of the Act. He contends that the Revisional Court while placing reliance upon the decision in the case of Ganpat Rai v. Additional District Judge and others : AIR 1985 SC 163, has dismissed the revision on the basis of the law laid down therein. Learned Counsel for the petitioner has placed reliance on a decision of this Court in the case of Smt. Rukmani Devi v. III. Addl. District Judge, Kanpur and others,, 1977 ARC (72) and in the case of Munni Lal v. Smt. Shiv Devi and others,, 1980 (6) ALR 92 (Sum) :, 1981 ARC (6) and has contended that the provisions of section 3(a) of the Act was squarely applicable to the facts of the present case in as much as the petitioner being a married daughter was an heir and was normally residing with her mother at the time of her death and hence she will be covered in the definition of a tenant. Her objection which has been rejected on the ground that she is not a member of the family was illegal.
(3.) LEARNED Counsel for the petitioner has also placed reliance upon a decision in the case of Achat Misra v. Rama Shanker Singh and others : 2005 (59) ALR 591 : 2005 (29) AIC 110, wherein the Hon'ble Supreme Court has reversed the decision in the case of Ganpat Rai (supra) and held that the order notifying the vacancy which leads to a final order of allotment can be challenged in a proceeding taken to challenge the final order and held that in a revision filed against a final order of allotment the order notifying the vacancy could be challenged.;