# Km. Asha Raina v. The Rent Control and Eviction Officer, Dehradun & others

- **Citation:** High Court of Judicature at Allahabad #39557
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-asha-raina-v-the-rent-control-and-eviction-officer-dehradun-others-39557
- **Pages:** 3

## Text

1ALL] Km. Asha Raina V. The Rent Control and Eviction Officer, Dehradun & others. 15
that when the petitioner came to college
after 22.3.88 he was sent for and when asked
about the charges he denied . It is thus clear
that the committee did not take any action due
to absence of petitioner in response to notice
sent by it. Rather as mentioned in paragraph 4
of the report it sent for the petitioner after
22.3.88 when he came to the college.
Therefore, in absence of the notice on the
record of the enquiry officer the petitioner's
claim that no notice was served on him
appears to be correct. Since the time fixed by
the High Court in the order dated 4.11.93 had
expired the committee adopted a novel
procedure of sending for petitioner. When he
came to the college after 22.3.88. It is denied
by
the
petitioner.
Even assuming that
petitioner was sent for no enquiry could be
held without intimating the petitioner that the
committee proposed to hold inquiry on the
date fixed by it .The entire proceedings
conducted by the committee after 22.3.88
were against principles of natural justice.

5. In the result this writ petition succeeds
and is allowed. The order dated 15.5.1995
passed by respondent no 1, Annexure-9 to the
writ petition is quashed with all consequential
benefits of service to the petitioner. The
respondents are directed to reinstate the
petitioner and pay his entire arrears of salary
w.e.f. 5.4.91 within a period of two months
from the date a certified copy of this order is
produced before respondent no.1

6. There shall be no order as to costs.

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By the Court

1. This writ petition is directed against the
order dated 16.2.1994 passed by the Rent
Control and Eviction Officer declaring the
vacancy of the premises in question.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
16
2. The petitioner is admittedly landlady of
the premises in question. An application for
allotment of the premises was filed on the
ground that the landlady is not occupying the
premises. The Rent Control and Eviction
Officer directed the Rent Control Inspector to
submit his report. The Rent Control Inspector
submitted his report on 1.6.1992 stating that at
the time of inspection he found that the house
was closed and one Smt. Somti was living in
out houses of the building. In the building
there were six rooms, one hall, one verandah
etc. and one room on first floor. She informed
that Major Nirmal alias Nimmu had vacated
the accommodation and gave its possession to
Smt. Asha Raina, the owner of the house who
was not found on the spot but it was reported
that she was residing at Sri. A.N.Kaul
Dilaram Baradari chaupatiya, Lucknow and
the notice may be given to her.

3. The petitioner having come to know of
the proceedings filed an objection before the
Rent Control and Eviction Officer alleging
that the Rent Control Inspector made the
inspection of the house in question in her
absence without any prior notice. The
previous owners of the house in question were
Smt. Kaushilya Devi and Major Raman. They
have sold the property to the petitioner's
mother. The name of Major Nirmal alias
Nimmu had been wrongly stated in the report
of the Inspector instead of showing his name
Major Raman Bahadur. The Rent Control and
Eviction Officer relying upon the report of the
Rent Control Inspector dated 21.6.1992
declared the accommodation in question as
vacant by his order dated 16.2.1994 and
thereafter allotted the same to respondent
No.2 on 21.2.1994.

4. The Rent Control and Eviction Officer
declared the vacancy only on the basis of the
report of the Rent Control Inspector dated
1.6.1992. The Rent Control Inspector had
never given any notice to the petitioner,
though according to him the petitioner was
residing at Lucknow. He indicated that the
notice may be sent to the petitioner. The Rent
Control Inspector should have first given the
notice to the petitioner and only thereafter
should have inspected the premises. Rule 8(2)
of U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (in
short the Act) provides that the inspection of
the building, so far possible shall be made in
the presence of the landlord and the tenant or
any other occupant. The inspection without
notice to the petitioner was invalid and on the
basis of the said report the vacancy could not
have been declared.

5. Even taking into consideration the
report of the Inspector, it cannot be held that
there was vacancy when Smt. Somti was
found in occupation in the out house of the
disputed house. The main house was locked
and in possession of the landlady. He was told
by Smt. Somti that one Major Nirmal alias
Nimmu after vacating the house had given
possission to the petitioner. The Rent Control
Inspector did not submit any report that the
said Major Nirmal alias Nimmu was the
tenant of the premises in question. The
petitioner had filed an objection clearly
stating that Major Nirmal alias Nimmu was
never tenant of the disputed house. In fact
previous owners were Smt.Kaushilya and
Major Raman Bahadur from whom her
mother had purchased the property. The name
shown as Major Nirmal was incorrect. The
Rent Control and Eviction Officer did not
record any finding as to whether Major
Nirmal alias Nimmu was tenant of the
petitioner
and
he
had
vacated
the
accommodation
after
delivery
of
its
possession to the petitioner.

6. The deemed vacancy occurs under
section 12(1) (a) and (b) of the Act when the
landlord or tenant has substantially removed
his effects from the building or has allowed it
to be occupied by any person who is not a
member of his family. The Rent Control
Inspector found that the house was locked and
it was in the possession of the petitioner. It
1ALL] Manohar Lal & ors. V. The Rent Control and Eviction Officer, Kanpur Nagar & another 17
could not have been treated as vacant
unless it was found that it was occupied by the
tenant and he had vacated. Major Nirmal alias
Nimmu was not found to have vacated the
disputed accommodation as tenant, it could
not have been declared as vacant. On the other
hand, it was stated that Major Raman Bahadur
had sold the property and his name was
wrongly mentioned in the report as Major
Nirmal alias Nimmu.

7. In view of the above, the writ petition is
allowed. The order declaring the vacancy
dated 16.2.1994 and subsequent allotment
order passed in favour of respondent No.2 are
hereby quashed.

8. The parties shall bear their own costs.

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By the Court

1. This writ petition is directed against the
order dated 19.12.1998 passed by the Rent
Control and Eviction Officer, respondent
no.1, declaring the disputed accommodation
as vacant.

2. Briefly stated the facts are that the
petitioner is admittedly tenant of House
No.8/198
Arya
Nagar,
Kanpur
Nagar.
Respondent no.2 purchased this property from
its erstwhile owner by registered deed dated
23.8.1997. He filed an application for release
on 27.3.1998 alleging that the petitioner has
inducted
his
brother
in
the
disputed
accommodation under his tenancy after 1977
and, therefore, the accommodation in question
should be deemed as vacant. The petitioner
contested the application. It was denied that
he had inducted his brother in the year 1977
but in fact they were living since the year
1969. The Rent Control and Eviction Officer
took the view that the petitioner failed to
prove that he was a Karta of the family,
therefore, he had no right to permit his brother
to occupy any portion of the house with him.
He declared the vacancy by the impugned
order dated 19.12.1998.

3. I have heard Sri P.N. Khare, learned
counsel for the petitioner and Sri S.C.
Tripathi, learned counsel for contesting
respondent.

4.
The
question
is
whether
the
accommodation can be declared as vacant on
the facts of the present case. The version of
the petitioner is that his father was tenant of