The main legal point established is the requirement for authorities to afford the petitioner an opportunity to be heard, properly consider objections before declaring vacancy, and the importance of recording reasons for orders.

By the present writ petition the petitioner has challenged the order or direction in the nature of certiorari quashing the order dated 23.11.2000 passed by the respondent no. 1 in Case No. 19/2000 U/s 12 of Act XIII of 1972, the order dated 27.6.2001 passed by the respondent no. 1 releasing the premises known as Harmony Cottage upper Landhour Mussoorie in favour of the owner and landlord as well as the order dated 6.7.2001 passed by the District Judge in RCR No. 146/2001 dismissing the revision filed by the petitioner.

2. Brief facts leading to the present writ petition are that the original owner and landlord of the property according to the petitioner was Smt. Kamla Parashar w/o Shri Y. N. Parashar E 367 Greater Kailash I New Delhi who executed a sale deed in favour of the respondent no. 2 namely Chandan Singh Rawat on 11.10.2000. The property in dispute consists of Room, Kitchen, Latrine and covered corridors which was allotted to him by the Rent Control and Eviction Officer on 20.2.85 and by virtue of allotment order he is residing in the premises in dispute. It was alleged by the petitioner that he is paying rent to the landlord regularly and is in possession of the property in dispute since the inception of tenancy in his favour.

3. Smt. Guddi Devi who is sister in law of Shri Dharmendra Singh moved an application for declaring the vacancy of the property in dispute on the ground that the petitioner has left the disputed premises and the same has been handed over to Shri Dharmendra Singh. He has also filed an application for allotment in collusion with Shri Dharmendra Singh. In pursuance of the application for allotment the proceedings were numbered as Case no. 19/2000. The vacancy was declared on 23.11.2000.

4. Respondent no. 2 also moved a release application on 25.11.2000. The petitioner has preferred objections to the release application on 27.6.2001, stating therein that there is vacancy and, therefore, the release application is not maintainable. The release application however, was allowed. The petitioner has preferred a revision against the order of vacancy as well as release, which was numbered as R.C.R. No. 146/2001. The said revision was dismissed on 6.7.2001. The present writ petition has been preferred against the order passed by the District Judge, Dehradun.

5. Heard Sri Arvind Vashistha learned counsel for the petitioner and Sri B.D. upadhyay counsel for the respondent no. 2 as well as Standing Counsel for the respondent no. 1 at great length. Both the parties agreed that the writ petition may be disposed of at the stage as the parties have already exchanged their pleadings. On submissions of the learned counsel for the parties following points arose for determination in this writ petition.

1. The order passed by the R.C. & E.O. dated 23.11.2002 declaring the disputed property as vacant is cryptic order and does not contain any reasons and no opportunity was given to the petitioner to prove that the vacancy does not exist at all.

2. The allotment application was filed in collusion with the caretaker.

3. The order of vacancy having been challenged before the District Judge which was incumbent upon him to decide the question of vacancy as well, in view of referring order in Achal Mishra's Case.

4. The ailing mother was out of station, therefore, the petitioner was away in connection with her treatment and as such in such circumstances there cannot be any vacancy.

5. Eviction proceedings can be initiated only in a suit not by way of the proceedings under Section 12 of the Act.

6. Release cannot be allowed as there is no vacancy in the eye of law.

7. I have perused the orders passed by R.C. & E.O. and also the pleadings of both the parties.

Findings:

Point No.1 and 2

8. Brief stated the order dated 23.11.2000 has been passed on the ground that the petitioner has left the premises. The petitioner has filed the objections before the R.C. & E.O. stating therein that he is residing in the tenanted pre