IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 7147 (M/S) of 2001 (Old No. 30716/1993) Smt. Sampati Devi Kandari …Petitioner Versus Rent Control & Eviction Officer and others …Respondents Hon’ble Tarun Agarwala, J. Heard Mr. A. Rab, the learned Senior Counsel assisted by Mr. Gopal K. Verma, the learned counsel for the petitioner, Mr. Sudhir Kumar, the learned Brief Holder for the State/respondent no. 1 and Mr. Rajendra Dobhal, the learned Senior Counsel assisted by Mr. D.C.S. Rawat, the learned counsel for the landlord/respondent no. 2. The present writ petition arises against the order of the Rent Control and Eviction Officer, Mussoorie, declaring vacancy in the premises in dispute. The facts leading to the filing of the present writ petition is, that on 3rd March, 1981, the petitioner was issued an allotment order of the upper northern portion of Beehive Cottage in Mussoorie. The record indicates that possession was given to the petitioner through police force when Form-D was issued on 19th March, 1981. It transpires that an application was filed by Sri Dinesh Uniyal, a prospective allottee on 5th February, 1993 indicating therein that the husband of the petitioner has now been transferred to Dehradun and therefore, the premises in question is likely to fall vacant and that the said application may be considered for allotment of the premises. Similar application dated 10th February, 1993 was moved by another person. On these two applications, the authority directed the Inspector to submit a report. The Rent Control Inspector submitted a report dated 23rd March, 1993 holding that upon a physical inspection being made, the husband of the petitioner along with her brother was found to be residing therein and that all their belongings were also found on the spot. 2 Subsequently, it transpires that an intimation dated 29th April, 1993 was sent by the landlord to the Rent Control and Eviction Officer intimating that the petitioner has vacated the premises since her husband has been transferred. On this intimation, the authority again asked the Rent Control Inspector to submit a report. A report dated 19th May, 1993 was submitted, in which the Inspector recorded a finding that the husband of the petitioner along with her brother had been found to be staying in the premises in question along with their belongings, but further recorded that the husband of the petitioner has been transferred. In the light of this report, the Rent Control and Eviction Officer held that since the husband of the petitioner has been transferred, a vacancy has arisen and accordingly, declared vacancy of the premises in question. The petitioner, being aggrieved by the said order, has filed the present writ petition. Having heard the learned Senior Counsel for the petitioner at some length, the Court finds that the impugned order cannot be sustained. Under Rule-8 of the U.P. Urban Building (Regulations of Letting, Rent and Eviction) Rules, 1972, the inspection of the building, as far as possible, shall be made in the presence of the landlord and the tenant or any other occupant. In paragraph 7 of the writ petition, it has been specifically stated that no notice whatsoever was issued nor any inspection was made under intimation to the petitioner. No counter affidavit has been filed either by the State or by the landlord and consequently, the said averment remained unrebutted. Even otherwise, the Court finds that the report dated 19th May, 1993 given by the Rent Control Inspector indicates that there is no vacancy and that the husband of the petitioner along with her brother with their belongings were found in the premises. The mere fact that the petitioner’s husband has been transferred cannot amount to vacancy when a clear finding of being in possession has been given by the Rent Control Inspector. In the light of the fact that the petitioner’s husband was found to be in possession, the question of vacancy does not arise. 3 The impugned order declaring vacancy is patently illegal and is quashed. The writ petition is allowed. (Tarun Agarwala, J.) 29-11-2011 Salim/