RAVI S.DHAVAN - (1.) THIS petition, relates to the issue whether a 'deemed vacancy ' has occurred in a certain premises at Mussoorie. The refence is to Section 12 (3-A) of the U. P. Act XIII of 1972, which is as below :- Sec. 12. Deemed vacancy of building in certain cases: (1) A landlord 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 therefrom, 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 residence, elsewhere. (2)............... (3-A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town are to which he has been so transferred, which ever is later.
(2.) THE petitioner has been residing in an allotted accommodation at Mussoorie, where he was posted for duties with the public works department. He was transferred to Meerut on 2nd July 1986, and joined duties there on 15th July 1986. This fact is not in controversy. An application dated 20-6-1986, was filed before the Rent Control and Eviction Officer, Mussoorie. Upon this an inspection of the premises was caused. The Inspector's report confirmed that the tenant, the petitioner, is an employee of the State and has been transferred out of Mussoorie to Meerut. The petitioner attempted to make an issue of the circumstance that the exercise of carrying out an inspection was illegal and violated Rule 8, and the consequential allotment proceedings must be dropped by the Rent Control and Eviction Officer. In the facts and circumstances of the present case, the Rent Control and Eviction Officer, rightly did not hold the inspection as an irregular exercise. What the inspector reported, inso far as is relevant, the petitioner also is not at issue with the report. The relevant aspect of the report is that the tenant had been transferred out of town and he was such a person to whom sub-section (3-A) applied. Notwithstanding the fact that on the day of the inspection the petitioner had joined duties at Meerut, and was not in Mussoorie, the inspection report only records what the petitioner accepts even now ; that he has been transferred. Thus there is no error in the report on the basis of an inspection when actually the petitioner was not, and could not be available as he had been transferred. Thus the main thrust of the writ petition, in challenging the inspection, with the contention that it was illegal in terms of Rule 8, is misconceived. Upon facts of this case the inspection caused of the premises is not irregular. On behalf of the petitioner at the Bar the allotment proceedings in the premises is sought to be challenged as not being in conformity with sub-section (3-A), aforesaid. No grounds have been taken, in reference to this, in the writ petition, nor any foundations were laid on this issue before the Rent Control and Eviction Officer, Mussoorie. What has been argued is not the plea on record before the Rent Control and Eviction Officer. This Court had required the petitioner to file a supplementary affidavit, to show from the record that such was the issue before the Court below. The supplementary affidavit was filed on 4th May 1987. It does take the legal submissions before this Court now, yet it does not place on record that the issue of Section 12 (3-A) of the Act, aforesaid was raised before the Rent Control and Eviction Officer. Before the Court below, the petitioner was avoiding the proceedings on personal grounds. That is to say, the case be adjourned as he had met with an accident.
(3.) THE petitioner pleads that, in effect, a writ of certiorari be invoked to correct the error in the order of the Rent Control and Eviction Officer dated 25th March, 1987, annexure " 6 " to the writ petition. But the petitioner did not raise the legal plea before the Rent Control and Eviction Officer, that by virtue of Section 12 (3-A) the stage to initiate allotment proceedings on the premises in question may not have arisen. THE most relevant and crucial objection, the petitioner did not raise before the Court of the respondent. In fact, this issue has yet to be raised. The application of the petitioner dated 4th March 1987, before the court below, seeks an adjournment but mentions nothing about his transfer from Mussoorie to Meerut. The petitioner was transferred in July 1986. The order of the Rent Control and Eviction Officer declaring vacancy was passed on 25th March, 1987. The petitioner was not without notice of the proceedings. If the petitioner would not take a legal, appropriate and relevant defence, he cannot plead for a writ of certiorari to certify that the order of 25th March 1987, passed by the Rent Control and Eviction Officer, is bad as it suffers from a manifest error or illegality.;