Rajendra Prasad Siag v. Distt. Judge, Dehradun — 1988 DIGILAW 461 (ALL)

ORDER R.P. Singh, J. - This writ petition is directed against the order passed by the District Judge, Dehradun, dated 17-2-1988, dismissing the revision filed by the petitioner and upholding the order passed by the Rent Controller and Eviction Officer, Mussoorie, dated 21-8-1986, declaring vacancy and ordering the release of the accommodation in favour of the landlady, Smt. Sheel Kumari Nigam, respondent No. 3. 2. Briefly, the facts of the case are that the proceedings of the case commenced on an application given by the landlady, respondent No. 3, on 21-6-1984 with the prayer that the premises in dispute namely, Basant Cinema building, situate in Mussoorie, district Dehradun, may be declared vacant and the same may be released in her favour. Notices were issued to the petitioner who was the tenant of the premises in dispute and the Rent Control Inspector was ordered to inspect the premises and submit his report. After service of due notice on the parties concerned, the Rent Control Inspector inspected the premises and reported that at the time of inspection, the cinema hall was found locked and the doors and windows of the premises were found closed by brick and plaster. The petitioner is said to have told the Rent Control Inspector that hall was not being used since 1982. Relying on the report submitted by the Rent Control Inspector and on appraisal of the evidence filed before him the Rent Control and Eviction Officer respondent No. 2, held that the Cinema building was lying abandoned by the petitioner and was not being used by the petitioner and further that parts of the building were allowed to be used and are in occupancy of various persons who were not members of the petitioner's family and on these findings declared vacancy in respect of the premises in dispute under S. 12 of U.P. Act XIII of 1972, hereinafter referred to as the Act. Thereafter the respondent No. 2 being satisfied that the need of the landlady respondent No. 3 to set up her son in business in the premises in dispute for running the cinema business was bona fide and genuine, ordered the release of this cinema building which is in dispute in favour of respondent No. 3 the landlady, vide his order dated 21-8- 86. The petitioner thereafter filed a review application under S. 16(5) of the Act which was also dismissed by the Rent Control and Eviction Officer vide his order dated 2-6-1987. The petitioner thus filed a revision under S: 18 of the Act against the order passed by respondent No. 2 dated 21-8-1986 by which the premises in dispute was ordered to be released in favour of the landlady. The District Judge also dismissed the revision vide his order date 17-2-1988 which is in challenge in the present writ petition. 3. The learned counsel for the petitioner strenuously urged that the order passed by the Rent Control and Eviction Officer dated 21-8-1986 is vitiated and he has wrongly declared the vacancy in respect of the premises in dispute and thereafter he committed a manifest error in ordering the release of the accommodation in favour of the landlady Smt. Sheel Kumari Nigam, respondent No. 3. The learned counsel for the petitioner submitted that even though the building was not being used as Cinema hall for number of years but the same being in occupation of the petitioner, could not be declared vacant. On the other hand, the learned counsel for the respondent No. 3 contended that the premises in dispute was let out as a cinema building for exhibiting films and since admittedly the cinema building was not being used for number of years and according to the report of the Rent Control Inspector, the petitioner himself had stated that the building was not used as cinema building since 1982 and hence the petitioner had abandoned the building having removed his effects therefrom and the building had been virtually lying in disuse without any attempt on the part of the petitioner to use the building as a cinema building. Moreover, since persons other than the family members of the petitioners were ,found in occupation of portions of the building hence in the circumstances the building was rightly declared vacant by the Rent Control and Eviction Officer. Respondent No. 2, being satisfied about the bona fide need of respondent No. 3 to set up her son in cinema business, rightly ordered the release of the building in her favour. 4. A perusal of the impugned orders shows that the premises in dispute was not being used as a cinema house for number of years. Respondent No. 2, being satisfied about the bona fide need of respondent No. 3 to set up her son in cinema business, rightly ordered the release of the building in her favour. 4. A perusal of the impugned orders shows that the premises in dispute was not being used as a cinema house for number of years. The main cinema building was found locked and the doors and windows of the building were found closed by brick and plaster. No evidence could be produced by the petitioner that he had any licence for running of the' cinema at the time of inspection of the building by the Rent Control Inspector. The building in dispute was let out for exhibition of films under the Cinematograph Act but when admittedly the building was not used as a cinema building for four or five years since 1982, and further that the petitioner could not produce any evidence to show that he had licence for exhibiting films for a number of years it is clear that the cinema building was not being used as such by the petitioner. The respondent No. 2 held that the' circumstances of the case indicate that the building was virtually in disuse and was, abandoned by the petitioner. A building is abandoned when the tenant is not using the building and it implies that the tenant has, removed his effects from the building having' lost any interest in it for being used by him. Since even the doors and windows were found closed with bricks and plasters, it is evident that the building was not in use as a cinema building by the petitioner. Further the affidavits filed by respondent No. 3 and deepak Gupta, a witness on behalf of respondent No. 3 who was also cross examined at length, was relied upon by the Rent Control and Eviction. Officer in arriving at a finding that the building in dispute had not been used by the petitioner who had substantially removed his effects therefrom. 5. Another ground for declaring the building vacant is that the petitioner had allowed other persons who were not members. of his family to occupy parts of the building. The Rent Control and Eviction Officer also reported that the business of ring game was being carried on in a tenement outside the office. 5. Another ground for declaring the building vacant is that the petitioner had allowed other persons who were not members. of his family to occupy parts of the building. The Rent Control and Eviction Officer also reported that the business of ring game was being carried on in a tenement outside the office. Evidence seems to have been produced" to show that one Vinod Jindal was in occupation of the main building while Ved Prakash, Brijbasi and others were in occupation of different parts of the building. The Rent Control and Eviction Officer had held that the building in question was allowed to be occupied and used by other persons who are not members of the family of the tenant and thus on this ground also he had declared vacancy in respect of the building in question. In the circumstances of the .present case when the building itself was not in use for a number of years by the petitioner who appears to have lost interest in using the building as cinema house and the conduct of the tenant in not allowing the Inspector to inspect the building from inside after opening the lock clearly indicates that there was nothing substantial in the building and the petitioner seems to have substantially removed his effects therefrom. The petitioner also having allowed other persons who are' not members of his family to use and occupy parts of the building, as stated above, the building, has rightly been declared to be vacant by the Rent Control and Eviction Officer. 6. The learned counsel for the respondent also submitted that the order declaring, vacancy in respect of the building having not been challenged by the petitioner by filing a writ petition before this Court, it is not open for the petitioner to challenge the same now, after lapse of so many years. The learned counsel for the petitioner submitted that. thee, revision was filed by the petitioner under, S. 18 of the Act before the District Judge and Section 18 of the Act provides that any person, aggrieved against an order passed under Section 16 or Section 19 of the Act may within 15, days of the date of such order prefer a revision, before the District Judge. thee, revision was filed by the petitioner under, S. 18 of the Act before the District Judge and Section 18 of the Act provides that any person, aggrieved against an order passed under Section 16 or Section 19 of the Act may within 15, days of the date of such order prefer a revision, before the District Judge. Thus the revision" that was preferred before the District Judge was against an order of release of the: accommodation passed under Section 16 of the Act and hence the order declaring vacancy that was passed under Section 12 of the Act could not be challenged in the revision under Section 18 of the Act and had.become final, the-- same having not been challenged by the petitioner by filing any writ petition immediately after the vacancy being declared. The learned counsel for the respondent relied on the decision of the Supreme Court in Ganpat Roy v. Addl. District Magistrate, reported in AIR 1985 SC 1635 : 1985 All LJ 900 where the Supreme Court observed thus : "Under the proviso to S. 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub-sec. (4) which includes a deemed vacancy under S. 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that S. 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of S. 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of S. 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicator In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no vacancy. This would apply equally where an order of release is made. This would apply equally where an order of release is made. Further, the revision which is provided for under S. 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises,. cannot be reagitated in revision." Relying on the above observation of the Supreme Court the learned counsel for the respondent contended that the order declaring vacancy had become final and after the order of release was passed in favour of respondent No. 3 on being satisfied about the bona fide and genuine need of the landlady respondent No. 3, the order declaring vacancy cannot be challenged now and only -the validity of the order of release can be gone into in the present writ petition. It was held by the Supreme Court in the case of Ganpat Roy (supra) that the order declaring vacancy could be challenged by means of a writ petition as there is no other remedy provided in the Act against such an order. The petitioner filed a revision against the order of District Judge ordering release of the building in favour of the landlady respondent No. 3 and after the revision was dismissed, the petitioner has challenged the order passed by the District Judge in revision. Hence the contention of the learned counsel for the respondent is that only the validity of the order of release can be gone into in this writ petition. It is no doubt true that the order declaring vacancy was not challenged by the petitioner and instead the petitioner filed a revision under Section 18 of the Act challenging the order of release of the building passed under Section 16 of the Act. Moreover, a perusal of the order passed by respondent No. 2 declaring vacancy shows that the same was passed after providing full opportunity to the parties of leading their evidence, and the Rent Control and Eviction Officer relying on the report of the Inspector that the building was not being used by the petitioner and in fact parts of the building were being allowed to be used by persons who are not members of the family of the petitioner, the building was rightly declared to be vacant under Section 12 of the Act. Hence, I find that respondents 1 arid 2 have not committed any manifest error in declaring the building vacant and ordering the release of the same in favour of respondent No. 3. In any case, the petitioner himself having not been using the building for more than 4-6 years have no justification to keep the building locked and in disuse for so long and in any case, sitting under Article 226 of the Constitution this is not a fit case for interference with the impugned order. 7. In the result, there are no merits in this writ petition which is accordingly dismissed. 8. The parties will, however, bear their own costs.