THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition (M/S) No. 4818 of 2001 (Under Article 226 of the Constitution of India) (Old No. 14021/91) Prithvi Raj Narang, son of Shri Ishwar Dass Narang, Resident of 9, Nimi Road, Dehradun. (since deaceased) represented through his L.Rs. 1/1 Ashok Kumar Narang S/o Prithvi Raj Narang, ½ Bharat Kumar Narang S/O Prithvi Raj Narang. ... Petitioner. Versus 1. Rent Control and Eviction Officer, Dehradun. 2. Smt. Krishna Kumari, widow of Lachhmi Chand (since deceased) represented through her L.R. 2/1 Ashok Verma S/O late Lachmi Chand, R/O Gandhi Road, Dehradun. 3. Dr. Rajendra Kumar Verma, son of late Lachhmi Chand, Respondents no. 2 and 3 residents of 10, Gandhi Road, Dehradun. 4. Dr. Charan Singh, ... Respondents. Sri D.Barthwal Adv, learned counsel for the petitioner. Sri Arvind Vashist, Adv., learned counsel for the respondents. Dated July 21, 2006. PC: (Hon’ble B.S.Verma, J.) By means of this writ petition, the petitioner has prayed for issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 19-12-1990 passed by the Respondent no.1 ( contained as Annexure No. 5) whereby the learned Rent Control and Eviction Officer has declared vacancy of the disputed premises and it was held that the legal heirs of the late Ratan Lal Sharma had illegally occupied the said premises Relevant facts of the case are that on 11.1.1966, a partnership firm was constituted between Prithvi Raj Narang and late 2 Nand Lal Sharma as partners. The accommodation in dispute- Pram House-was let out to the said firm for carrying on the business of the said firm. In 1969, Nandlal Sharma died and in turn, the firm was reconstituted and in place of deceased partner, his three sons Ratan Lal Sharma, Jitendra Nath Sharma and Mool Chad Sharma became partners of the firm and the premises continued to be under the tenancy of the firm. According to the petitioner, after the death of Nand Lal Sharma, the landlords forcibly locked the disputed accommodation which gave rise to proceedings under Section 145 of the Code of Criminal Procedure and the property was attached and it was held by the Munsif, in his order dated 12.3.1969, that Prithvi Raj Narang and others were in possession of the disputed shop within two months before the date or preliminary order and it was also held that notices be issued to Sri R.K.Verma, landlord, and his witnesses for giving false evidence vide order dated 12.3.1969 passed by the then Munsif, Dehradun. Aggrieved, the landlord R.K.Verma went up in revision before the High Court of Allahabad, but the revision was dismissed vide order dated 14.7.1978. Subsequently, the landlords to suit their purpose motivated one Dr. Charan Singh to make application for allotment. The petitioner contested the proceedings before the Rent Control and eviction Officer, who vide his order dated 5.2.1979 rejected the application for allotment holding that the accommodation in suit was not vacant under Section 12 of the Rent Control Act. The R.C. & E.O. had recorded some other observations in the impugned order. That order attained finality. Later-on, the landlords filed application for release of the accommodation under the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act 1972, which was registered as P.A. Case No. 229 of 1983. The landlord had arrayed sons of deceased Nand lal Sharma as tenant-opposite parties. The learned II Additional Civil Judge/prescribed Authority vide his judgment and order dated 21.5.1987 rejected the release application of the landlords with costs. Aggrieved, the landlords went up in appeal, which too was dismissed in default and the restoration application filed by the landlords is still pending. 3 The record reveals that the landlords again moved application intimating the Rent Control and Eviction Officer ( hereinafter referred to as R.C. & E. O.) about the vacancy of the accommodation. The R.C. & E.O. directed the Rent Control Inspector ( for short R.C.I.) to enquire and submit his report. The Rent Control Inspector submitted his report dated 18-7-1989. stating therein that the premises falls under the Rent Control Act. The landlords are stated to be Smt. Krishna Kumari and Dr. R.K.Verma and both were present and spot inspection was done in witness of their neighbourers. It was also stated that the mason of P.R.Narang was found working there. The agent of Sri P.R.Narang was asked to call him but it was informed that Sri Narang was unable to come. The agent of Sri Narang refused to put signature on the inspection memo. It was informed to R.C.I. that the accommodation is being used as go-down by Sri Narang. The landlords informed that the heirs of Ratan Lal Sharma and others were the tenants, who had settled in Meerut. The R.C. & E.O. thereafter proceeded in the matter and held that the legal heirs of Sri Rantan Lal had sublet the premises to Sri Narang, therefore, it was held that the premises were vacant to be declared as such. Accordingly, vide order dated 19-12- 1990, the R.C. & E.O. declared vacancy. Subsequently, the proceedings for release of accommodation were taken up and Rent Control Inspector was directed to enquire and report vide order dated 3-1-1991 and 17.1.1991 was fixed for orders on release application. On 17-1-1991, the matter was adjourned for 18-1-1991 and case was fixed for 1-2-1991. On 13-3-1991, the notice was ordered to be served on the occupant P.R.Narang fixing 26.31991 but on 26.31991, the case was adjourned to 8-4-1991 and again on 8.4.1991, notice was ordered to be issued upon the petitioner and 19- 4-1991 was fixed for hearing on release application. Aggrieved, the petitioner has come up before this Court in this writ petition. I have heard rival contentions of the parties and perused the entire material on record. The only contention raised on behalf 4 of the petitioner is that no notice was given to the petitioner as provided under Rule 8 of the Rules framed under the U.P. Urban Buildings Act and the order declaring vacancy under Section 12 of the said Act is illegal. It is not disputed that earlier a proceeding under the U.P. Act No. XIII of 1972 were drawn in respect of the disputed shop, which was registered as Case No. 52 of 1978. This case was registered on the application of Dr. Charan Singh moved before the R.C. & E.O. Dehradun for allotment. The R.C.I. concerned was ordered to enquire and report. The R.C. and E.O. while rejecting the allotment application has held that the partnership of Nand Lal and P.R.Narag was found legal and they were in occupation of Prem House. The occupation of partner P.K.Narang was held from before 5-7-1976 and till the date of order, i.e. 5-2-1979. Ultimately, the R.C. and E.O. had held that the premises was not vacant in the ambit of Section 12 of the Act. It is admitted fact that in respect of the disputed accommodation, application for release under Section 21 of the U.P.Act No. XIII of 1972 was moved and the case was registered before the Prescribed Authority as P.A. Case No. 229 of 1983 and Prescribed Authority after considering the material on record found that the landlady had not bona fide need for release and the balance of comparative hardship also titled in favour of the opposite parties, therefore, the application for release was rejected vide order dated 21-5-1987. As narrated above, the Rent Control Inspector in his spot inspection 18-7-1989 found that on the spot the agent of Sri P.R.Narang was found working there and in the disputed shop there were provisions of maintaining two-wheelers in sufficient to indicate that the mason/agent of the petitioner was found present in the disputed accommodation and in the preceding paragraph it has been mentioned that in the earlier proceedings, vacancy under Section 12 of the aforesaid Act was not found by the R.C. and E.O., therefore, 5 in these premises, it is a fit case for remand to the R.C. and E.O. for decision afresh regarding vacancy of the accommodation in suit. The Rent Control and Eviction Officer shall obtain report from the Rent Control Inspector afresh and the inspection shall be made in presence of both the parties and opportunity of hearing shall be afforded to the petitioner as well as landlords. Accordingly, the writ petition deserves to be allowed. The writ petition is hereby allowed. The order dated 19-12-1990 passed by the respondent no.1 is set aside. The matter is remanded to the Rent Control and Eviction Officer with the direction that he shall obtain fresh report from the Rent Control Inspector, who shall make the inspection of the accommodation in suit in presence of the landlord ad well as the petitioner. Thereafter, the R.C. & E.O. shall proceed further in the matter to determine whether vacancy exists or not, in accordance with law and the Rules framed under the Act. No order as to costs. (B.S. Verma, J.) RCP