N.N.Mithal - (1.) THE order challenged in this petition under Article 226 of the Constitution of India have been passed respectively by the Rent Control and Eviction Officer releasing the accommodation in favour of the landlord and the other passed by the revisional court dismissing the petitioners' revision.
(2.) THE main ground of attack is two fold. Firstly, chat the accommodation was not vacant and without deciding this question, no release application could have been considered and secondly the release application was disposed of without giving any opportunity to the petitioner and without considering his application for allotment after considering his need qua the need of the landlord. Before entering upon the discussion on the questions raised, it would be relevant to have some background facts to understand how the controversy arose. Respondent no. 3 admittedly is the owner of the disputed building and was in Government Service having retired in 1971 He remained employed privately for sometime and ultimately came to settle in Agra in 1981. He is suffering from paralysis and is residing in the ground floor portion of the house. The dispute relates to the first floor portion which was in the tenancy of one Mahendra Vohra since 1971. Mahendra Vohra vacated the premises on 25-1-1983 but instead of handing over possession to the landlord he allowed one T. P. Singh Chauhan to occupy it. However on 14-3-1983 Chauhan allegedly gave the keys of the house to the petitioner who handed over the same to the landlord. It is said that on 15-5-1983 the petitioner was inducted as a tenant by the landlord at the rate of Rs 200/- per month for a period of one year but immediately thereafter he started harassing him and, therefore, he applied for allotment on 2-7-1983. Before this, another application had been moved for allotment by T. P Singh Chauhan on 17-5-1983. Copies of these applications are Annexures SCA 1 and SCA 2 filed by the landlord. The landlord filed objections against the allotment applications in which he also made a prayer for the release of the accommodation under section 16 (1) (b) of U. P. Act 13 of 1972. An affidavit in support of the release application was also filed on 27-9-1983. All these matters came up for hearing before the Rent Control Eviction Officer on 22-11-1985, a date on which the petitioner and the other applicant T. P. Singh Chauhan were absent. The officer considered the release application and allowed the same. On 24-11-1985 the petitioner applied for recall of that order but the same was rejected on 20-12-1985. Aggrieved by the order dated 22-11-1985 and the one passed on 20-12-1985, the petitioner filed a revision which came up for hearing before the VII Addl. District Judge, Agra. The revision was also dismissed on 27-3-1987. The submission for the petitioner was that it was incumbent on the Rent Control Eviction Officer to first determine as to whether the accommodation was vacant or not. Unless a finding to this effect had been given, he had no jurisdiction to decide the question of release in favour of the landlord. This contention is based on the submission that after the vacation of the house by Mahendra Vohra, he had been inducted by the petitioner as a tenant on 15-5-1983 and even though there was no allotment order in his favour, he was recognised as a tenant and, as such, the accommodation was not vacant.
(3.) ON the other hand, it has been argued on behalf of the landlord respondent that the question of vacancy was not at all an issue between the parties and even if a formal order declaring vacancy was required, in the present case, both the sides having admitted that the building was vacant, this point had become a non issue and on this ground, the release order cannot be said to be vitiated. It was further submitted that in fact it is not necessary that a formal order declaring vacancy should be passed. It is, therefore, necessary to first examine as to whether the determination of vacancy is a precondition for deciding the release application. Section 12 of the Act deals with vacancy of a building which may be either deemed or actual. According to it, landlord or tenant shall be deemed to have ceased to occupy the building or a part thereof it any of the three things mentioned therein happens. Sub-clauses (2), (3), (3-A) and (3-B) also lay down when the vacancy will be deemed to have occurred on the happening of events specified therein Sub-clause (4) of section 12 lays down as under : "(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2), sub-section (3), sub-section (3-A) or sub-section (3-B) shall, for the purpose of this chapter, be deemed to be vacant." ;