TaxTMI 
TaxTMI 
1982 (5) TMI 199
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....a residential building for herself at Nyaya Marg known as 'Poorab Paschim'. Hence, the accommodation in dispute would be deemed to have fallen vacant under Section 12(3) of U.P. Act XIII of 1972. The application made by the Petitioner was referred for enquiry under Rule 8 to the Rent Control and Eviction Officer, who found that there was no vacancy. The Rent Control and Eviction Officer, thereafter, rejected the application on November 28, 1977 on the ground of being barred by principle of res judicata. The Petitioner filed a revision before the District Judge which was transferred to the Additional District Judge, Allahabad and was dismissed on May 23, 1978. Against the aforesaid order, the Petitioner filed the present writ. The writ was allowed by Hon. S.J. Hyder, J., on May 7, 1981 and the case was remanded to the Rent Control and Eviction Officer for fresh decision in accordance with the observations made in the aforesaid judgment. Being aggrieved. Dr. (Smt.) D. Kaur filed an appeal to the Supreme Court which was allowed on August 10, 1981 and the writ petition was sent back to this Court for a fresh decision. The relevant portion of the judgment of the Supreme Court as....
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.... by an order dated July 30, 1977. 5. The argument was that as the first application had been rejected, the second application for allotment on which the impugned order was passed, was not maintainable. This argument of the counsel found favour with the Rent Control and Eviction Officer and the Additional District Judge. But Hon. S.J. Hyder, J. did not agree with the aforesaid view and set aside the same. His opinion was that as the order dated 30th July, 1977 was passed behind the back of the Petitioner, the same was void and could not operate as res judicata. In that connection, the learned Judge held that the principles of natural justice required giving of an opportunity to the Petitioner before the order dated 30th July, 1977 was passed. As this opportunity had not been given, the order was a nullity. The submission made before us was that there was a statutory obligation on the Rent Control and Eviction Officer to give an opportunity to the Petitioner to substantiate his case for allotment. This argument was controverted by the learned Counsel for the Respondent that there was no statutory provision requiring giving of an opportunity, hence, the Rent Control and Eviction Of....
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.... landlord, the tenant and the occupier. It does not confer any right of filing any objection to the applicant for allotment against the report of the Inspector notifying that there was no vacancy. Counsel urged that as there are only three classes of persons who have been given the right to file objection, the Court cannot create a fourth class for holding the right of filing objection by a person who had applied for allotment. The rule of interpretation well established is that it should be a reasonable one which carries out the intention and object for which a provision of law is enacted. Under Section 16 an application can be filed for allotment when there is actual vacancy or there is deemed vacancy. The person who applies for allotment is known as applicant for allotment. It is at his instance that the machinery starts. He may not have a right to get allotment, but he can bring necessary evidence before the Rent Control and Eviction Officer that a vacancy exists. He is not a stranger who can be shown the gate on the ground of having no interest in the matter. In the event of the report of the Inspector that there is no vacancy, the duty cast on the Rent Control and Eviction Of....
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....ommon consciousness of mankind, as pre-eminently necessary to ensure that the law is applied impartially.... 12. In Maneka Gandhi's case AIR 1978 SC 597, Bhagwati J. observed: Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must, always be: does fairness in action demand that an opportunity to be heard should be given to person affected? (para 58). The law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable. (Para 61). 13. Another decision of the Supreme Court which has a bearing on the controversy in hand is Mohinder Singh Gill V. Chief Election Commissioner, New Delhi AIR 1978 SC 851. It, was observed (Para 75): Fair hearing is thus a postulate of decision-making cancelling a poll, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or forms of trial. It cannot be fair if appraising the affected and app....
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....id down in this case is of wide application. Its applicability could not be excluded by confining its operation to the facts of that case. 18. In Mohinder Singh's case AIR 1978 SC 851, the Supreme Court considered the import of expression "civil consequences." Applying the law laid down therein, we think that the rejection of the application of the Petitioner for allotment was such which involved civil consequences. "Civil Consequences" cover infraction of not merely property or personal rights but of civil liberties, material deprivation and non-pecuniary damages. In his comparative (comport-meat?) every citizen in his civil life inflicts a civil consequence. The rejection of the application, without hearing the Petitioner, affected his right to get the allotment conferred by U.P. Act No. XIII of 1972. This is a right capable of being enforced or redressed by the machinery provided in the Act. 19. It was admitted by the counsel for the contesting Respondent that under Section 18 of U.P. Act No. XIII of 1972, a person, whose application has been rejected for allotment, has a right to file revision. He, however, urged that as the limited right of filing revision is conferr....
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....on Officer dropped the proceedings. The necessary result of dropping the proceedings was that no decision on merits was arrived at. As no decision was arrived at, nothing can be said to have been settled by the judgment relied upon by the contesting Respondent. For applying the principle of res judicata, it is basic that the party sought to be debarred must have been also actually heard or by any fiction of law be deemed to be heard. Nothing of the sort happened in the present case. We are also not in agreement with the submission of the counsel for the other side that the nature of the proceedings in the present case was quasi in rem. It was a litigation between the two parties and the decision given thereon would be binding only on them. It did not involve any adjudication on the status of any particular subject matter. It was essentially a dispute between the parties claiming the right in controversy and does not directly or indirectly affect the status of the subject matter. 22. As a result of what we have said above, we find that the learned Additional District Judge was in error in treating the earlier judgment as final and holding it to be binding on the parties. The lear....
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....nd living from his parents. 25. The next plea taken was that the house in question for which allotment application had been filed, was not a residential building, hence Section 12(3) did not apply. 26. The pleadings of the parties gave rise to the following questions which were as under: (i) Whether house No. 29-B/2 Nyaya Marg belonged to Dr. D. Kaur and had been built by her? (ii) Whether Dr. Kamal Kumar was a member of the family of Dr. D. Kaur. (iii) Whether Bungalow No. 17 Kanpur Road was a residential building? 27. A residential building is a building which is used for residential purpose, i.e. in which the people reside or dwell. The word "residence" is equivalent to "residential" in contradiction to "business" and has reference to the use or mode of occupancy to which the property may be put. A building used as a place of abode, and in which no business is carried on, is used for residence purpose. In India, it is not unknown that a building is used both, for residence as well as for commercial purpose. In such an event the controversy required to be decided is as to what is the dominant or the main purpose. It is the dominant purpose whic....
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.... of reductio ad absurdum. 28. In the instant case, there are no facts on record to enable the High Court to decide the above question. If that fact that the house 29-B/2, Nyaya Marg did not belong to Respondent No. 3, was found in her favour, Section 12(3) would not apply. Neither the Additional District Judge nor the Rent Control and Eviction Officer gave any finding on this controversy. Evidence was led in the case before the Rent Control and Eviction Officer. The Respondent No. 3 was of the idea that the present proceedings were barred, hence evidence which could be produced by her was withheld. In the absence of the evidence on this controversy, it appears to be unjust to decide the same in favour of the one or against the other. The evidence is also required for deciding the other controversies. The affidavits filed by the parties were insufficient to assist this Court to decide the points arising for adjudication. In this state of affairs, the guidelines alone would not be sufficient to decide the question whether the accommodation in the present case was residential or non- residential We have no alternative but to remand the case to the Rent Control and Eviction Officer ....