Full Judgment
Anjani Kumar, J.
1. The petitioner, Purshottam Das, filed this writ petition challenging the order passed by the Rent Control and Eviction Officer, Kanpur Nagar dated 9th October, 2003, whereby a vacancy has been declared in the accommodation in dispute Under Section 12 of the U. P. Act No. 13 of 1972 (hereinafter referred to as the Act) with regard to two rooms set on the first floor of House No. 110/194, Ram Krishna Nagar, Kanpur Nagar.
2. The landlord filed an application before the Rent Control and Eviction Officer on 29th July, 2003 to the effect that one Shobh Raj was tenant of the accommodation in dispute on the monthly rent of Rs. 85 of which applicants Virendra Kumar, Narendra Kumar and Raj Kumar are the owners and landlords. Sri Shobh Raj died and the tenancy was inherited by his widow, Smt. Krishna Devi, who also died on 4.1.2003. It was also stated in the said application that Krishna Devi, deceased, entered into agreement with the erstwhile owner Rajesh Chandra Saxena on 14.3.2000 to the effect that Krishna Devi surrenders tenancy with the condition that so long she is alive or till any member of her family purchases another house in this city, she will have a right to live in the accommodation in dispute. It is also stated that at the time of death of Krishna Devi neither Krishna Devi nor any of her heirs were residing in the accommodation in dispute. The accommodation was occupied by some unauthorized occupant. It was also staled that the son of Krishna Devi, Naresh Kumar, has got a vacant house No. A/202 in Mohalla Gujaini, Kanpur Nagar which is within the same municipality. In terms of agreement entered into by Krishna Devi the accommodation in question is vacant. It was, therefore, prayed in the aforesaid application by the landlord that the landlord requires the accommodation in question for his personal occupation, therefore, the accommodation be released in favour of the landlord. The Rent Control and Eviction Officer directed the Rent Control Inspector to inspect the accommodation in question. The Rent Control Inspector submitted his report dated 7th August, 2003. The Rent Control and Eviction Officer, after perusing the aforesaid report, issued notice to Naresh Kumar son of Shobh Raj whose lock was found to be on the accommodation in question at the time of inspection by the Rent Control Inspector. The aforesaid notice issued to Naresh Kumar was served on Naresh Kumar who after going through the notice refused to accept the same and told the process server that he will appear in the Court. Sri Naresh Kumar in spite of promise did not appear before the Rent Control and Eviction Officer and therefore again notice was sent by registered post on the address of Gujaini house and also on the address of the accommodation in dispute. In spite of notice Naresh Kumar has chosen not to appear. The Rent Control and Eviction Officer, therefore, found that after the death of Krishna Devi nobody is in fact residing in the accommodation in dispute and Naresh Kumar has also obtained a house in Mohalla Gujaini and thus there is vacancy and declared the vacancy vide order dated 9th October, 2003.
3. The petitioner, Purshottam, filed an application for review of the order dated 9th October, 2003, Under Section 16 (5) of the Act which application according to material on the record has been dismissed during pendency of the present writ petition but he chose to amend only a relief claimed in this writ petition and did not annex the order by which the review application has been dismissed nor challenged the same.
4. The case of the petitioner is that he is also one of the sons of deceased Shobh Raj and Krishna Devi. One Radha Krishna is living on ground floor and Purshottam was living with Krishna Devi on the first floor. Purshottam has also filed some documents like voter list, passport, and PAN Card of the Income Tax Department and on the strength of the aforesaid documents claimed that in fact he was in possession of the accommodation in question after the death of Shobh Raj and Krishna Devi. He, therefore, inherited the tenancy after Krishna Devi and Naresh Kumar has built a house and he had no interest. This fact has been denied by the landlords and also this fact was denied by Krishna Devi who filed a suit against Purshottam stating therein that Purshottam played fraud and that Purshottam is not son of Shobh Raj. It is admitted case of the petitioner that he had filed an application for review Under Section 16 (5) of the Act which has been decided against him by the Rent Control and Eviction Officer but he has not challenged that order, instead he has added a prayer in the writ petition which runs as Under :
'Issue writ, order or direction in the nature of certiorari quashing the order dated 21st July, 2004.'
5. The law settled by the Apex Court is that unless the order which is sought to be quashed by certiorari is annexed, the relief of quashing of the order cannot be granted. In this view of the matter the relief of quashing of order dated 24th July, 2004, cannot be granted to the petitioner.
6. Now coming to the merit of the case for declaring vacancy, admittedly the petitioner was found not to be in possession. He has never been found to be living with Shobh Raj and Krishna Devi. Report of the Rent Control Inspector says that Naresh Kumar has chosen not to contest the matter in spite of service on him, probably because of the agreement entered into between the landlords and Krishna Devi that she will have right to live in the accommodation in dispute so long she is alive or till any of her heirs purchases or builds a house in the same city. Admittedly since Naresh Kumar purchased a house, the tenancy stood surrendered.
In view of the aforesaid facts the view taken by the Rent Control and Eviction Officer that there is vacancy as contemplated Under Section 12 of the Act cannot be said to suffer from any error much less error on the face of record. Learned Counsel for the petitioner, Sri B. D. Mandhyan, has relied upon a decision of Apex Court in Mohd. Azeem v. District Judge, Aligarh and Ors., 1985 (2) ARC 85. To me it appears the facts of the case decided by the Apex Court and the facts of the present case are completely different as observed in paragraph 6 of the said judgment :
'6. There is no dispute that along with Manzoor his wife, his three sons and the daughter were living in the disputed premises. After Manzoor's death, the widow, the three sons and the daughter continued to live in that house. There is reference to payment of rent in the order of the Prescribed Authority and in the petition for special leave an assertion has been made that it was the appellant who had been paying rent after the death of Manzoor. This plea has not been controverted. In the setting of things, the appellant being the eldest son, was naturally expected to pay the rent. There is material on record to show that Azeem and Naim were already married and have been living along with their wives in the house along with other members of the family.'
7. Another case relied upon by Sri Mandhyan is the decision of this Court in Madan Gopal Maheshwari v. District Judge, Mathura and Ors., 1999 (2) AWC 1785 : 1999 (2) ARC 241. As would be clear from the facts of the case of Madan Gopal Maheshwari it will be clear that the said case was also decided on the facts of the case and thus the law laid down is not applicable to the present case.
8. In view of what has been stated above I do not find any force in the writ petition it deserves to be dismissed and is hereby dismissed.
9. Interim order, if any, stands vacated.