Radhika Devi Agrawal v. District Judge Allahabad — 1978 DIGILAW 361 (ALL)

JUDGMENT K.C. Agarwal, J.:- This is a petition under Article 226 of the Constitution for quashing the orders of the II Additional District Judge, Allahabad, dated 16-1-1978, and that of the prescribed Authority dated 1-12-1977. House No. 45, Sheo Charan Lal Road, Allahabad, admittedly, belongs to Smt. Radhika Devi Agarwal, the petitioner. At one time, one Musharaff All was the tenant of the said house He vacated the same in the year 1967. It appears that Smt. Radhika Devi Agarwal neither applied for the release of the said house in her favour nor was an application for allotment made by any person. On 25.7.1977, Vinay Kumar Sinha, respondent no. 3. filed an application for allotment of the said premises in his name on the ground that as the same was lying vacant and as be required it for his personal occupation, the house be allotted to him After the filing of the application by the respondent no. 3, a number of persons also filed similar applications for the said purpose. On receiving these applications for allotment, the Rent Control and Eviction Officer deputed the Inspector for the purpose of making a spot inspection and submitting a report about its vacancy. The Inspector visited the house and, thereafter, submitted a report on 30-7-1977, stating that the house was lying vacant and thus was open for allotment. Thereafter, the vacancy was declared and the proceedings for allotment were started by the Rent Control and Eviction Officer. It was thereupon, that Smt. Radhika Devi Agarwal filed an objection to the Applications for allotment and alleged that her son-in law Raj Kumar, to whom her daughter Smt. Sunita Agarwal was married, was living in the said house. She also claimed that the benefit of Section 14 of U.P. Act No. XIII of 1972 be given to Raj Kumar. According to the allegations made by her in her objection, her son-in- law and her daughter were living in this house since 1976. A reply to this objection was filed by the Respondent no. 3. 2. After perusing the papers, the Rent Control and Eviction Officer held that the house was vacant and that Raj Kumar and Smt. Sunita Agarwal were not living therein. On these findings, the Rent Control and Eviction Officer allowed the application of the respondent no. A reply to this objection was filed by the Respondent no. 3. 2. After perusing the papers, the Rent Control and Eviction Officer held that the house was vacant and that Raj Kumar and Smt. Sunita Agarwal were not living therein. On these findings, the Rent Control and Eviction Officer allowed the application of the respondent no. 3 for the allotment and rejected the prayer made on behalf of the petitioner for regularisation of possession of Raj Kumar and his wife Smt Sunita Agarwal. In arriving at this finding, the Rent Control and Eviction Officer relied upon the report of the Rent Control Inspector in which it was stated that the house was vacant, and that nobody was living in the said house. Aggrieved by the order of the Rent Control and Eviction Officer, a revision was filed by the petitioner before the District Judge. The revision was transferred to the II Additional District Judge, who has dismissed the same by the impugned judgment. Hence, this writ. 3. Sri Yogesh Agarwal, learned counsel for the petitioner, has made two submissions before me. The first was that the learned Additional District Judge as well as the Rent Control and Eviction Officer were wrong in holding that the house was vacant, and that Raj Kumar was not living there in with his wife. He contended that in the absence of any evidence brought on the record from the side of respondent no. 3, none of the two authorities were entitled under the law to give this finding. He further contended that on the facts and in the circumstances of the present case, the authorities committed an error of jurisdiction in not conferring the benefit of Section 14 on the petitioner. It is to be noted that it is common case of the parties that the house was once in occupation of Musharaff Ali who vacated the same in the year 1967. After the house was vacated by Musharraff Ali, the petitioner did not apply for the release of the said house. There is no dispute also between the parties that the petitioner was living in some other house. Her case was that she had given this house to her son-in-law in the year 1976. It was, therefore, for the petitioner to have established that the house was in possession and occupation of Raj Kumar. There is no dispute also between the parties that the petitioner was living in some other house. Her case was that she had given this house to her son-in-law in the year 1976. It was, therefore, for the petitioner to have established that the house was in possession and occupation of Raj Kumar. More so, when she claimed the benefit of Section 14 in as much as the benefit of this section can be given only to a person who is living in the house either as a licensee or as a tenant. Therefore, it was a condition precedent that the petitioner had established that the house was in the occupation of her son-in-law. She, admittedly, did not give any evidence to prove the said fact. The objection filed by her could not be treated as evidence. As the petitioner failed to give evidence in proof of her claim of the house being in occupation of Raj Kumar and her daughter Smt. Sumitra Devi, she cannot be heard of making a complaint of the finding being incorrect. For this very reason, she was also not entitled to get the benefit of Section 14 and she was rightly denied the benefit of the same. 4. The second submission made by the learned counsel for the petitioner was that the report of the Inspector was inadmissible as the same had not been submitted after complying with the requirements of Rule 8 of the Rules framed under the U P. Act No. XIII of 1972. It is not necessary for me to decide the nature of the said Rule being mandatory or directory. The fact that Smt. Radhika Devi Agarwal was personally present is established from the report of the Inspector. When she was present at the time of the inspection, it does not lie in her mouth to make a complaint of non-compliance of Rule 8. The purpose and object of this Rule is only to intimate the landlord about the proposed visit of the Inspector for making the enquiry. If she knew about the visit of the Inspector, she cannot be heard of making the complaint of non-compliance of Rule 8. The purpose and object of this Rule is only to intimate the landlord about the proposed visit of the Inspector for making the enquiry. If she knew about the visit of the Inspector, she cannot be heard of making the complaint of non-compliance of Rule 8. The said report of the Inspector was relied upon by the Rent Control and Eviction Officer for the purpose of finding that Raj Kumar and Smt. Sunita Agarwal were not living in the said house, and that the house was lying vacant at the time when the Inspector visited the spot. The articles and things found by the Inspector are also indicative of the fact that the house was not in occupation of the aforesaid two persons. It is true that the learned Additional District Judge has not made a specific reference to this report in his judgment, but as the judgment of the learned Additional District Judge is of affirmance it may reasonably be presumed that he has endorsed the finding of the Rent Control and Eviction Officer on the said report as well. In my view, there is no substance in the writ petition. 5. It may further be noted that the finding of fact about the vacancy was also attempted to be challenged in the writ petition. As there was a report of the inspector on the record, it cannot be said that the same was without evidence The report of the Inspector was the evidence which could be legally looked into. 6. In the result, the writ petition fails and is dismissed. The stay order is discharged. In the circumstances of the case, I direct the parties to bear their own costs.