Shitla Prasad Srivastav, J. - (1.) THIS petition under Article 226 of the Constitution of India has been filed by the Petitioner for quashing the order dated 22nd December. 1996, passed by the Rent Control and Eviction Officer (hereinafter referred to as opposite party No. 1), declaring the premises in dispute as vacant.
(2.) THE brief facts as stated in the writ petition are that Premises No. 119/412. Darshan Ka Purva, Kanpur, (hereinafter referred to as premises only) was in the tenancy of the Petitioner which consists of two adjacent units at the distance of about 80 feet.. The outer room of the accommodation was used for commercial purpose and the inner room was used for residential purpose. Separate rent was payable in respect of these two different units. The tenancy started prior to 1947 in favour of Maniraj Gupta, the father of the Petitioner, After his death, his widow Smt. Shall Devi and three sons including the Petitioner succeeded the tenancy as legal heirs of the deceased -tenant. It is slated that non residential portion was utilised in running the establishment known as Gupta Vidyalaya. Petitioner's case is that his father Mamraj Gupta was running another school named and styled as Gupta College. In a separate accommodation situate at House No. 119/412 Darshan Ka Purva, Kanpur, which is a different unit. According to the Petitioner for non -residential portion, his father was paying Rs. 6.00 per month as a rent, whereas for residential portion he was paying rent at the rate of Rs. 7.50 per month. The same was being paid by the Petitioner also and in the assessment register maintained by the Kanpur Nagar Palika, the case of the Petitioner is that one Pragyanand Chaturvedi who is arrayed as Respondent No. 2 filed an application for declaration of the vacancy in respect of the accommodation, i.e., residential and non -residential for the purpose of Respondents. A report was submitted by the Rent Control Inspector to the effect that the premises was found locked. The report was ex parte which is in violation of the Rule 8(2) framed under U.P. Rent Control Act, 13 of 1972. No notice was given to the Petitioner of the application filed for declaration of vacancy, therefore, the Petitioners were not aware of the Inspector's report. An objection was filed on behalf of Sri Prem Raj Gupta and Dr. Ramraj Gupta with the affidavit of Shanti Devi. An application for local inspection was also filed to be made by the Advocate Commissioner in order to examine whether the portion in which the vacancy sought to be declared was residential and non -residential, which was rejected on 20.5.1993. Against the order of rejection aforesaid, a writ was filed in the High Court which was rejected treating the impugned order as interlocutory one. Evidence was filed by the Petitioner to prove that the dispensary is being run in the non -residential portion and also to the effect that initially a Vidyalaya was being run there. Therefore, it is a non -residential portion, therefore, the application under Section 12 for non -residential portion was not maintainable. It is further stated that the proposed prospective allottee obtained an ex parte report from the Rent Control Inspector and an application for release was also filed by the landlord. An application was filed by the Petitioner to cross examine the landlord, as well as proposed allottee, which was rejected. A writ was filed before this Court which was also dismissed. The opposite party No. 1 declared the vacancy by impugned order dated 22nd December, 1995, which is under challenge in this writ petition. Ground of attack as taken by the Petitioner is that the Respondent No. 1 has passed illegal order against the record under the impression and assumption that Gupta Vidyalaya and Gupta College are one and the same. He has not taken into consideration that Gupta College is a different institution and it is being run in different house at House No. 119/412, though in the same locality which was not a disputed accommodation, nor application was filed for its declaration of the deemed vacancy or for release. The second ground of attack is that the Respondent No. 1 had no jurisdiction to include the application for release in the proceedings for declaration of vacancy. The third ground is that the inspector report is in violation of Rule 8 (2) of the Rules framed under the Act.
(3.) COUNTER -affidavit has been filed by the contesting Respondents in which it is stated that the tenancy was a single tenancy of both the portions as they are part and parcel of one residential unit and no part of it is commercial one. That Mamraj Gupta has acquired his own House No. 1 19/412 in the same locality benami in the name of his wife Smt. Shanti Devi. The entire family shifted in that house during the life -time of Shri Mamraj Gupta. The existence of Gupta Vidyalaya was also denied in paragraph 6. 1! is slated that Gupta Vidyalaya and Gupta College are synonymous of each other, which have been erroneously described as two accommodation. That the vacancy was there as Mamraj Gupta shifted in his own house. The Inspector gave notice to both the parties, but as the premises was found locked therefore, the report was submitted by him. Rule 8 (2) was complied as the statement of neighbourers were recorded. The evidence in respect of Gupta Vidyalaya has been obtained against the fact.;