Sibghat Ullah Khan, J. - (1.) PETITIONER was tenant of two adjoining shops bearing Nos. 153/7 and 153/8 situated in Mohalla Mandvi Naseem Khan, Jaunpur. Respondent No. 3 Dina Nath Chaurasia filed an application for allotment of the said shops. In the said application it was not mentioned that petitioner was tenant of the said shops. Rent Control inspector on 17.12.1984 filed report after inspection to the effect that Shrimati Lalita Devi, mother of original respondents No. 4 and 5 Raj Kumari Devi and Kiran Devi was the owner and landlady of the shops in dispute and she wanted to let out the shop to Dina Nath. In the said report it was also stated that two witnesses Hira Lal and Ashok Kumar stated that the said shops remained closed since long. Inspector also found the shops locked. Alleged landlady Shrimati Lalita Devi also gave her statement to the Inspector to the effect that she had locked the shops and she wanted to let out the shops to Dina Nath. However, according to the report Lalita Devi refused to open the lock. Rent Control and Eviction Officer vide order dated 29.3.1985 allotted the shops in dispute to Dina Nath. Thereafter, Police went on the spot and after breaking open the locks gave possession to Dina Nath. Some goods were found in the shops in dispute. Before the Rent Control and Eviction Officer it was actively concealed by all the parties that petitioner was tenant. If tenant of a shop keeps the shop locked that does not amount to vacancy. No notice before inspection or before declaration of vacancy was issued to the petitioner, which was mandatory.
(2.) AGAINST the allotment order dated 29.3.1985, the petitioner filed R.C. Revision No. 173 of 1985. Revisional Court held that it was true that until 1983 father of the petitioner was the tenant of the shop, however, no evidence was brought on record that tenancy of the petitioner survived or any business was conducted by the petitioner in the shops in dispute and that there was no evidence to show that petitioner had paid any rent. The Revisional Court therefore held that Rent Control and Eviction Officer had correctly allotted the shops to Dina Nath after declaring the same as vacant. None of the contingencies mentioned by the Revisional Court give rise to vacancy. The Revisional Court itself noticed the authorities in Vinobhwe Gram udyog v. District Judge Dehradun, 1985 ARC 253 and Surendra Kumar Bishnoi v. IInd Additional District Judge and others, 1979 U.P. RCC 634, holding that keeping the premises locked does not amount to vacancy. However, Revisional Court dismissed the revision on the ground that it was not maintainable and the alternative remedy for the revisionist was to file review application before the Rent Control and Eviction Officer under section 16(5) of U.P. Act No. 13 of 1972, as he had not been heard by Rent Control and Eviction Officer. Revisional Court further held that it could not interfere in the finding of vacancy. As far as this point is concerned, it has now conclusively been held by the Supreme Court in Achal Mishra v. R.S. Singh : 2005 (59) ALR 591 : 2005 (29) AIC 110, that in revision against release/allotment order, order declaring vacancy can also be challenged. Learned Counsel for the petitioner has vehemently argued that Shrimati Lalita Devi, mother of respondents' No. 4 and 5, was not landlady. However, I need not decide this question.
(3.) ENTIRE proceedings were utterly illegal and without jurisdiction for the reason that no notice was issued to the petitioner. Rent Control and Eviction Officer was not even made aware that petitioner was tenant and shop in dispute was in his possession. This was sufficient to set aside the entire order. Revisional Court should have remanded the matter to Rent Control and Eviction Officer to decide the matter after hearing the petitioner also. Remedy of review under section 16(5) of the Act is no bar to file revision against allotment order under section 18 of the Act.;