- (1.) K. C. Agrawal, J.
(2.) POORAN Chand, the petitioner was a tenant of house No. 192, Beharipur Khatriyan, Bareilly. The said house belonged to a registered charitable trust known as Brijmohan Lal Ayurvedic Aushdhalaya Trust. Smt. Sharma Devi, who was the mother of respondent No. 4, was one of the trustees of the said trust. On an application filed by the trust, the petitioner was evicted from the said premises. Smt. Sharma Devi died in November 1972 leaving behind Smt. Savitri Devi respondent No. 4, her daughter, and Anil Gupta respondent No. 5, grandson, as her heirs and legal representatives. Smt. Savitri Devi was married to Amar Nath Gupta, arrayed as respondent No. 3 in the writ petition. In April 1974, an application for allotment of house No. 193, Mohalla Bebaripur Khatriyan, Bareilly, was filed by the petitioner. The petitioner, claimed that the said house was lying vacant and as the petitioner needed a house, the same be allotted to him. House No. 193 belonged to Smt. Sharma Devi and on her death the same was inherited by Smt. Savitri Devi, respondent No. 4,and Anil Gupta, respondent No. 5. After making an enquiry, the Senior Inspector (Rent Control) submitted a report dated 8-4-1974 stating that the premises was vacant. The Rent Control and Eviction Officer notified the vacancy. Against the notification of the vacancy, Amar Nath Gupta, respondent No. 3 filed an objection claiming that the premises was not vacant, and hence the report submitted by the Rent Control Inspector was liable to be rejected. The Rent Control and Eviction Officer held an enquiry about the vacancy of the premises. Having held that the house was vacant, he allotted the said house to the petitioner. Against the said order of allotment, an appeal was filed by Amar Nath Gupta before the District Judge. The appeal was allowed by the impugned order dated 1-3-1975. Against the said order, the present writ petition was filed.
(3.) THE first question that arises for decision is to find whether the house in dispute was vacant in respect of which an application under Section 16 of the Act could be filed. THE relevant provisions are to be found in Sections 12 and 16 of the Act. Section 12 deals with cases of deemed vacancy. Clauses (a), (b) & (c) of sub-section (1) of Section 12 provide the circumstances in which a premises can be deemed to be vacant. THE other provisions about the deemed vacancy are to be found in sub-sections (2), (3), (3A) and (3B) of the aforesaid section. Under sub-section (4), any building or part which a landlord or tenant has ceased to occupy within the meaning of the aforesaid sub-sections shall be deemed to be vacant. Section 16 deals with the allotment and release of vacant building, and empowers the District Magistrate to pass orders in respect of such buildings. In the application filed for allotment the petitioner stated that as the owners of the house had permanently taken up residence at Delhi, the premises was vacant. The assertion made purported to be under clause (c) of Section 12 (1). The Rent Control and Eviction Officer was called upon to decide as to whether the said controversy existed or did not exist. He, however, did not record a categorical finding and allotted the premises to the petitioner without doing so. In the appeal preferred by Amar Nath Gupta, respondent No. 3, this question was again not decided. The District Judge found that since clause (c) of Section 12 (1) was not applicable, the application made by the petitioner was not maintainable. In doing so, the District Judge committed a manifest error. The averment made by the petitioner in the application for allotment was on the basis of clause (c) of Section 12(1) of the Act. The District Judge was, therefore, required to decide whether respondents 3 to 5 ha i taken up residence, not being temporary residence, elsewhere. As no finding was recorded by the District Judge on the said controversy, it is necessary that the judgment of the District Judge be set aside.;