No.10-COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2)(b)] Description of Case WPMS No. 3076 of 2001 Sri Rajendra Prasad and another. Vs. The Rent Control and Eviction Officer Dehradun and another A.F.R. (Approved for Reporting) Not Approved for Reporting (B.S. Verma, J.) Dated 01-05-2008 Initial of Judge. Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 3076 of 2001 (M/S) (Old CMWP No. 22360 of 1999) 1. Sri Rajendra Prasad S/O Sri Ram Swaroop, R/o 8, Arhat Bazar, Dehradun. 2. Sri Shiv Kumar S/O Late Sri Bhagat Ram, R/O 49, Khadri Mohalla, Dehradun, …….. Petitioners. Versus 1. The Rent Control and Eviction Officer, Dehradun. 2. Smt. Kuldeep Kaur, W/O Sri Baisakaha Singh, R/O 132/1/2, Lakhi Bagh, Dehradun. … Respondents. Sri Sharad Sharma, learned counsel for the petitioners. Sri B.P. Nautiyal, learned cousel for the respondent No.2. Date May 01, 2008. Hon’ble B.S. Verma, J. This writ petition has been filed to issue a writ, order or direction in the nature of certiorari quashing the order dated 3.5.1999 passed by Rent Control and Eviction Officer, Dehradun (for short R.C.&E.O.) (Annexure 17 to the writ petition), whereby the learned R.C.&E.O. has notified the vacancy in respect of the three chamber shop/godown situate on the ground-floor of property No. 132/1/2, Lakhi Bagh, Dehradun and fixed the case of 17-5- 1999 for consideration of release and allotment. Brief facts, giving rise to the present writ petition are that, according to the petitioners, they are tenants of the property in dispute since 1970 and the respondent no.2 is the landlady and owner of the disputed property. Proceedings for eviction of the petitioner-tenants were started on intimation under Section 15 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (for short the Act) on the ground that petitioner no. 1 has sublet the premises to Sri Shiv Kumar, petitioner no.2. Consequently, a release application under Section 16(1)(b) of the Act was filed by the landlady for release of the accommodation on the ground that respondent no. 2 had purchased the premises on 23- 12-1991, which was duly registered. It was alleged that the godown on the ground floor has been sublet to petitioner no.2 Shiv Kumar, hence he is in illegal occupation of the shop in dispute. The R.C.&E.O. directed the Rent Control Inspector to submit his report, who filed the report mentioning therein that on the ground floor, there exists three-chamber shop. The said shop was given on rent to Rajendra Prasad and at the time of inspection, petitioner no. 2 Shiv Kumar was found in occupation of the shop in the name and style M/s Shiv Kumar Ashok Kumar. It was also reported by the Rent Control Inspector that Shiv Kumar and Ashok Kumar are not the family members of tenant Rajendra Prasad. Accordingly recommendation was made to initiate proceeding under Section 12 of the Act. The R.C.&E.O. issued notices to the landlady, tenant and the occupants to submit their version. Shiv Kumar and Ashok Kumar filed their objection and also filed affidavit of Shiv Kumar. In support of the case of occupants, affidavits of Rajendra Prasad, Sri Sumit Prasad Jain, Hukam Chandra Jain, Jai Prakash, Sri Suresh Chandra Goyal, Rakesh Kumar and Lal Chandra etc. were filed. The occupants also filed documentary evidence in support of their business including letter of Regional Food Controller Garhwal Mandal and registration under Shops Act and the licence issued by Food and Supply Department etc. The occupants also contended that the property earlier belonged to Susheel Chandra Jain etc. and admitted that by the sale deed dated 23-12-1991, the respondent no.2 is the owner and landlady of the property in dispute. It was denied that Rajendra Prasad had sublet the shop to them to gain illegally. It was denied that Rajendra Prasad was in occupation of the shop in question. It was alleged that they are in occupation of the disputed shop since 1970 as is clear from the sale deed of the property. The landlady had filed the application for release to put undue pressure on them to vacate the premises. 2 On the other hand, the landlady respondent no.2 filed her own affidavit and the affidavits of former landlord Satish Chand Jain and that of Brijmohan. Affidavit of one Kulwant Singh was also filed, but he again filed his affidavit and stated that he had no personal knowledge about the occupation and tenancy of the disputed property no. 132. The R.C.&E.O. heard learned counsel for both the parties and perused the material on record. Ultimately, the R.C.&E.O. came to the conclusion that the petitioner-occupants were not recognized as tenants either by the former landlord or by the present landlady. The petitioners also failed to prove that they had been in occupation of the disputed premises prior to 5-7-1976 by the permission/consent of former landlord. It was concluded that the petitioners are not entitled to get benefit of provisions of Section 14 of the Act. The R.C.&E.O. has held that the petitioners were in occupation of the disputed premises after the enforcement of the Act without any legal allotment order and the property is liable to be declared as vacant. Accordingly the impugned order dated 3-5-1999 was passed. Aggrieved by the order dated 3-5-1999, the petitioners have filed the present writ petition before the Allahabad High Court, which was received by transfer to this Court. I have heard learned counsel for the parties and perused the record. It is pertinent to mention that this Court on 29-11-2004 passed an order to the effect that “meanwhile, the interim order relating to the status quo dated 20.12.2002 is modified to the extent that only eviction of the petitioner shall remain stayed till the next dated of listing. It is clarified that rest of the proceedings are not stayed.” 3 The respondent no. 2 by way of supplementary affidavit has brought on record the final order dated 30-11-2005 whereby the R.C.&E.O. has passed the final order and the disputed premises has been ordered to be released in favour of the landlady with the observation that the Form C and Form D shall not be issued until final order is passed in the Writ Petition No. 22360 of 1999. In the course of arguments, learned counsel for the respondent no.2 has urged that since the final order has been passed by the R.C.&E.O. vide judgment and order dated 30-11-2005, deciding the writ petition on merit would not serve the ends of justice because in the case of Achal Misra Vs. Rama Shanker Singh, and other [(2005) 5 Supreme Court Cases, 531], it has been held by the Hon’ble Supreme Court that the order notifying vacancy can be challenged along with the final order. I have considered the submission made by the learned counsel for the respondent no.2. In the case of Achal Misra Vs. Rama Shanker Singh and others [(2005) 5 Supreme Court Cases, 531)] while dealing with the provisions of Sections 18 and 12 of the Act the Hon’ble Apex Court inter alia in paragraph no. 11 has held as under:- “11. On the scheme of the Act, it is clear that the preliminary step is to declare a vacancy. At this stage, an enquiry has to be made including an enquiry involving at lease two respectable neighbours. It is thereafter that the vacancy has to be notified and objections are invited. This is followed by either dropping of the proceedings on the objections being upheld that there was no vacancy, or by allotment to a tenant on finding the vacancy, or in ordering a release under the Act. Therefore, the notifying of a vacancy is only a step in the process of making an allotment of the building to a tenant.” In paragraph 14, the Apex Court has held that “it is thus clear than an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to 4 challenge the final order, as being an order which is a preliminary step in the process of decision-making in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged.” Since the proceeding before the R.C.&E.O. has finally culminated in the release of the disputed premises in favour of the landlady, as is clear from the judgment and order dated 30-11-2005 passed by the R.C.&E.O. in Case No. 135 of 1992 under Section 16(1)(b) of the Act, hence to my mind, the ends of justice would be subserved if no order is passed on the merits because the order declaring the vacancy can also be challenged in the revision along with the final order passed by the R.C.&E.O. Therefore, in view of the law laid down by the Apex Court in the case of Achal Misra (Supra), it would be in the fitness of things as well as in the interest of justice that the petitioners would be at liberty to challenge the order impugned in this writ petition before the revisional court along with the final order dated 30-11-2005 passed by the R.C.&E.O. The petitioners may challenge the order dated 3-5- 1999 impugned in the present writ petition on all the grounds raised therein along with the final order dated 30-11-2005 passed by the R.C.&E.O. before the revisional court. If the revision is preferred by the petitioners under Section 18 of the Act within the stipulated period from today, the petitioners shall not be evicted from the premises in dispute till the decision of the revision. With the above observation, the writ petition is disposed of finally. Costs easy. All pending applications stand disposed of. (B.S. Verma, J.) RCP 5