K.N. Singh, V.K. Mehrotra, JJ. - (1.) THIS petition under Article 226 of the Constitution claims a relief for the issue of a writ of mandamus directing the Rent Control and Eviction Officer, Allahabad, to decide the Petitioners' objection on merits before deciding the release application of the landlord.
(2.) BRIEFLY , the necessary facts giving rise to this petition are as follows: Smt. Sarwar Jahan Begum is the owner and landlord of building No. 22 -A, Sarojini Naidu Marg, Allahabad, which was in the tenancy of Sri Asif Ansari since 1960. The building in dispute was used as office for the purpose of practice in law by late Sri Asif Ansari as well as by the Petitioner Sri Shanti Swarup Bhatnagar. In 1973, Ambrish Kumar Sharma also joined the office of Sri Asif Ansari and as he was his ward he resided with Sri Ansari. In February, 1977, late Sri Asif Ansari was elevated to the Bench of this Court. Sri Ambrish Kumar Sharma moved an application on 28 -2 -1977 before the Rent Control and Eviction Officer for allotment of the premises in dispute. An enquiry was held on the application of Sri Sharma and the Rent Control Inspector submitted his report that in the eye of law there was vacancy in the premises and it was available for allotment. During the enquiry Sri Ansari had given in writing that he was likely to vacate the premises 22 -A Sarojini Naidu Marg in which he was having his office jointly with Sri Shanti Swarup Bhatnagar and Sri Ambrish Kumar Sharma. Sri Ansari further stated in his note that Sri Ambrish Kumar Sharma was his ward and he was living with him also. Proceedings for allotment remained pending with the Rent Control and Eviction Officer and the same were adjourned on a number of dates on some ground or the other. On 2nd May, 1977, arguments were heard on behalf of Sri Sharma and 10 -5 -1977 was fixed for orders, but on that date no orders were passed and proceedings were further adjourned. On 10 -5 -1977 Sri Sharma was present while none appeared on behalf of the landlord, but no order was passed, instead the proceedings were adjourned. On 12 -5 -1977 the District Magistrate summoned the relevant file for his perusal and the same was received back by the Rent Control and Eviction Officer on 30 -8 -1977. Immediately thereafter Smt. Sarwar Jhan Begum made an application under Section 16(1)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the Act) before the Rent Control and Eviction Officer for the release of the premises on the ground that she required the same for her own use and occupation. Sri Shanti Swarup Bhatnagar, the Petitioner, moved an application on 29 -8 -1977 before the Rent Control and Eviction Officer that there was no vacancy in the accommodation and as such no order either of allotment or release could be passed. He further made a prayer that before considering the question of allotment and release, the issue relating to vacancy should be decided. Sri Bhatnagar has asserted that the Rent Control and Eviction Officer observed that the Petitioner's application was not maintainable and he refused to consider the questions raised in the application, instead he fixed 29 -9 -1977 for passing orders on the release application. The Petitioner then filed this petition for the issue of a writ of prohibition and also for the issue of a writ of mandamus directing the Rent Control and Eviction Officer, Allahabad, to decide the Petitioner's objection on merits before deciding the release application or allotment application. Learned Counsel for the Petitioner firstly urged that the Petitioner along with late Sri M. Asif Ansari has been holding office in the premises jointly since 1960, and this had been within the knowledge of the landlady as well as her brother Sri Atiq Ullah Khan who resides in the adjacent building. In support of this contention it was further asserted that the rent of the premises was being paid jointly by the Petitioner and late Sri Ansari and this could be verified from the Income Tax returns. Sri Ansari and the Petitioners carried on their legal profession in the same office and in support of this claim reliance was placed on the latter -pads, office files bearing the names of the Petitioner as well as Sri Ansari and the telephone directory and Income Tax papers and correspondence record. Learned Counsel further urged that even if the premises in dispute had been exclusively let out to Sri Ansari he had inducted the Petitioner as a joint tenant in the premises where both of them carried on their legal profession and held their office with the knowledge and consent of the landlord. He further urged that the deeming provisions under Section 12 did not apply and the accommodation could not be treated vacant. Reliance was placed on a Division Bench decision of this Court in Messrs Allied Products Distributors v. Arun Kumar : 1979 AWC 251.
(3.) WE do not consider it necessary to express any opinion about the Petitioner's claim that the accommodation in dispute was under the joint tenancy of late Sri Ansari and the Petitioner, as in our opinion, this question should be determined by the Rent Control and Eviction Officer on the material placed before him by the parties concerned.;