Full Judgment
Sudhir Narain, J.
1. This writ petition is directed against the order dated 24.12.1986 declaring the premises in question as vacant, order dated 12.3.1987 releasing the disputed premises in favour of the landlord-respondents, the order dated 10.5.1995 passed on the review application and the order dated 7.11.1997 dismissing the revision.
2. The facts, in brief, are that Chandmal was the tenant of the shop in question. Two applications for allotment were filed on 16.6.1986. The Inspector was called for submitting the report who submitted the report that the shop remains locked. The petitioner is the son of Chandmal who was a tenant. The notice was given to him but it was shown to be served by affixation. The Rent Control and Eviction Officer considering the report of the Inspector declared it vacant vide order dated 24.12.1986. The landlord-respondents filed application for release. The accommodation was released in favour of the landlord-respondents on 12.3.1987.
3. The petitioner filed an application for review. This application was rejected as the petitioner had not impleaded the heirs of the landlady, Smt. Damyanti Devi who had already died. The petitioner filed revision. The revision was dismissed by respondent No. 1 on 7.11.1997. These orders have been challenged in the present writ petition.
4. I have heard Sri Manoj Kumar Sharma, learned counsel for the petitioner, and Sri Rajesh Tandon, learned counsel for the respondents.
5. The contention of the petitioner is that admittedly Chandmal was a tenant. The Rent Control and Eviction Officer has issued notice to the petitioner on the ground that the petitioner is the son of the tenant but the notice has been taken to have been served by affixation. It was stated by him that he was never served with a notice. The Rent Control and Eviction Officer passed the order declaring the shop in question as vacant on the ground that there was a report that it remains closed. It is contended that firstly, the petitioner was not served with a notice and secondly, the accommodation could not be declared vacant simply on the ground that the shop was found to be locked unless there was specific finding that the tenant has removed his effects as contemplated under Section 12 (1) (b) of U. P. Act No. XIII of 1972.
6. Sri Rajesh Tandon. learned counsel for the respondents, contended that the petitioner had filed an application for review under Section 16 (5) of the Act but the landlady had died and he had not filed application for substitution. It is further contended that the accommodation has been released in favour of the landlord-respondents after declaration of the vacancy. The petitioner was always challenging the order of vacancy. Respondent No. 1 had dismissed the revision on 7.11.1997 and thereafter he has filed the writ petition.
7. The vacancy can be declared only on the finding that the accommodation was vacant as contemplated under Section 12 of the Act. The mere fact that the shop was locked and found closed itself was not a sufficient ground to hold that the accommodation in question was vacant.
8. Sri Rajesh Tandon. learned counsel for respondents urged that the accommodation in question has been released in favour of the landlord-respondents and the tenant-petitioner should not be permitted to raise the question of vacancy at this stage. He has placed reliance upon the decision Smt. Susheela Devi v. VIIIth Additional District Judge. Meerut and others, 1997 ID ARC 335, wherein It was held that if the claim of tenancy raised on behalf of the objector against the release application of the landlord has been rejected, the High Court will not interfere under Article 226 of the Constitution of India against the order of release. This case has no application where the tenant is challenging the question of vacancy. The release application can be allowed only when it is held vacant after hearing the tenant who was already in occupation of the disputed premises.
9. The next submission of learned counsel for the landlord-respondents is that there was no allotment order in favour of the tenant-petitioner and as such even if it is assumed that he was in occupation, his occupation was unauthorised. The respondents never raised such an objection before the Rent Control and Eviction Officer. Neither the order has been passed on this basis.
10. In view of the above the writ petition is allowed. The order dated 24.12.1986 declaring the vacancy is hereby quashed. The Rent Control and Eviction Officer shall decide the question of vacancy afresh. The petitioner had filed the application belatedly. He is directed to pay Rs. 5.000 as costs for causing delay in the matter to the landlord-respondents within one month from today. The amount may be paid by Bank Draft to the landlord-respondents or may be deposited with Rent Control and Eviction Officer within one month. If the amount is so deposited, it may be withdrawn by the landlord-respondents without furnishing any security. In case the petitioner does not pay the cost, his application to recall the order of vacancy shall stand rejected. It is made clear that if the order of declaration of vacancy is upheld, it will not be necessary to decide the release application afresh. The Rent Control and Eviction Officer shall decide the question of vacancy within three months from the date of production of a certified copy of this order. The status quo as existing today shall be maintained till any decision is given by the Rent Control and Eviction Officer.