The main legal point established in the judgment is the importance of providing opportunities for the landlord or tenant to challenge the vacancy declaration and the need for strict compliance with procedural rules under U.P. Act 13 of 1972.

By the present writ petition the petitioner has challenged the order dated 7.1.2002 passed by the R.C. & E.O. declaring the vacancy in respect of the premises No. 23/1 old and 25 New Paltan Bazar, Dehradun. The premise consists of one room on the ground floor, covered verandah, latrine and bathroom, which is in occupation of the petitioner Smt. Krishna Devi.

2. The brief facts giving rise to the present writ petition are that one Sri Tula Ram the father of the respondent no. 2 namely Sri Rajesh Kumar and Sri Ram Kumar the husband of the petitioner were real brothers. They were carrying on business in a shop situated at 23/1, Paltan Bazar, Dehradun under the name and style of Bankey Lal & Sons and in the back of side there was residential accommodation consisting of one room, covered verandah, latrine and bathroom where Sri Ram Kumar alongwith his family members were residing. The petitioner has stated that her husband Sri Ram Kumar expired on 13th February, 1977 and she is continuously residing therein. Before the death of Sri Ram Kumar it was alleged that the shop was taken on rent by both the brothers jointly and Sri Tula Ram the elder brother of Sri Ram Kumar was the head of the family. After the death of Sri Ram Kumar the said shop was purchased by Sri Tula Ram on 30.4.1997. After getting the sale deed an application was moved under Section 16(1) of U.P. Act no. 13 of 1972 on the ground that the petitioner was in unauthorized occupation of the portion of the residential premises and has also sought the release of the accommodation.

3. The R.C. & E.O. has directed for inspection of the premises on 8.10.1998. The vacancy of the premises was declared on 7.1.2002. The present writ petition has been filed challenging the order dated 7.1.2002 passed by the R.C. & E.O.

4. Heard the learned counsel for the petitioner Sri V.K. Kohli as well as the counsel for the respondent Sri R. Dobhal at great length.

5. On submission of the learned counsel for the parties following points arose for determination in the present writ petition.

(i) The vacancy of the residential premises cannot be declared as the entire premises in possession of the petitioner.

(ii) No vacancy can be initiated as the remedy is by way of suit only as the petitioner is unauthorized occupant.

(iii) Provisions of the Rule 8 (2) of U.P. Act 13 of 1972 has not been complied with.

6. I have perused the writ petition, counter affidavit as well as rejoinder affidavit. The writ petition was filed on 28.2.2002 and order was made Issue notice to the respondents and thereafter parties have exchanged their affidavits. After the exchange of the affidavits the parties have agreed that writ petition itself may be heard finally. On 30.6.2003. Hon'ble Acting Chief Justice has passed the following order.

"List on 10.7.2003 at the joint request of learned counsel for parties."

Thereafter the matter was argued by both the parties for final disposal.

Findings:

Point NO.1

7. From the pleadings of the parties I find that application was filed under Section 16( 1) (b) of U.P. Act 13 of 1972 stating therein that the petitioner was an unauthorized occupant in as much as the petitioner is residing at 17 Gurgaon House No. 497 at Haryana. It was stated that the petitioner is an unauthorized occupant as she has occupied the premises after 5th July 1976.

8. The petitioner has resisted the said application by filing the objections. It was stated by the petitioner that the provisions of Rule 8(2) of U.P. Act 1972 have not been complied with as landlord has wrongly mentioned that the petitioner is residing at Gurgaon. In fact she is residing at the disputed place since 1973 and the education of children was also completed in the premises in dispute.

9. In the counter affidavit it was stated by the counsel for the landlord that it was denied that she is residing in the premises in dispute and in fact she is permanently residing with her son at Gurgaon, Haryana. The present premises h