JUDGMENT S.U. Khan, J.
1. This writ petition arises out of an allotment order dated 24.7.1980 passed by R.C. & E.O., Jhansi in favour of respondent No. 2 Smt. Sukh Devi. The allotment order is quite strange in nature. Previously house in dispute was in tenancy occupation of respondent No. 3, Vishwanath who is husband of respondent No. 2, Smt. Sukh Devi at the rent of Rs.80/- per month. Respondent No. 3 was employed in Government service (U.P. Police). He was transferred to another post in the same city in May 1980. Previously he was in the vigilance department, Jhansi and in May 1980 he was transferred to Kotwali, Jhansi. Anticipating and apprehending declaration of vacancy on the ground of transfer and release or allotment to some other person of the building in dispute, respondent No. 2 and 3 adopted a very ingenious procedure to retain the house in dispute. Respondent No. 2, the wife filed allotment application stating therein that due to her husband's transfer house was deemed vacant but as they (respondent No. 2 and 3) required the house for education of their children and residence hence it should be allotted to respondent No.2. R.C & E.O., Jhansi allotted the house in dispute to respondent No. 2. The number of the house in dispute is 117/2 Civil Lines, Jhansi. In Para 3 of the counter affidavit, it has been stated that after transfer to Kotwali, Jhansi in May 1980, respondent No. 3 had been allotted government accommodation but it had not been vacated by his predecessor. Against the allotment order landlord petitioner filed Rent Control Revision No. 192 of 1980. Revisional court found that inspection was made without notice to the landlord and before allotment also no notice had been issued to the landlord. Accordingly, 1st Additional District Judge, Jhansi on 14.10.1983 allowed the revision and set-aside the allotment order dated 24.7.1980 in favour of respondent No. 2 Smt. Sukh Devi. Revisional court held that R.C.E.O. committed illegality in declaring the vacancy and allotting the house in dispute in favour of respondent No. 2. It appears that in the revision some documents as additional evidence had been filed and some oral evidence had also been taken. After decision of revision a review application was filed on the ground that additional evidence which had been taken on record by the revisional court was not considered by it while deciding the revision. The review petition was allowed on 15.9.1984.Order dated 14.10.1983 was set-aside and revision was restored to its original number and next date was fixed for arguments in the revision. Landlord has challenged the said order passed on review dated 15.9.1984, through this writ petition.
2. Unfortunately neither in the review application nor in the order passed thereupon it has been stated that the additional evidence, which was adduced in the revision was of what nature and pertained to which point. Even counter affidavit is silent on this point. After hearing the arguments of the learned Counsel for the parties I directed them to file copies of the additional evidence which was filed before the revisional court. Shri M.K. Gupta, learned Counsel for respondent Nos. 2 and 3 on 8.11.2005 stated that records of the revisional court had been weeded out and it was not possible for his clients to file the copies of the additional evidence which was filed before the revisional court. Shri A.N. Bhargava, learned Counsel for the petitioner stated that he would enquire from his client as to whether copies of the said evidence were in his possession or not. These statements were recorded in the1 order sheet dated 8.11.2000 and matter was directed to be listed for further hearing on 21.11.2005. On the said date learned Counsel for both the parties stated that the additional evidence was not in possession of their clients and records of the revisional court had been weeded out. The said statement was also recorded in the order sheet. In the earlier judgment of the revisional court dated 14.10.1983, there is no mention that attention of the Judge was invited to the additional evidence (additional evidence had been taken on record by his predecessor). In Para 8 of the counter affidavit, it has been stated that Mr. Satya Narain who decided the revision heard the revision on the very next date, which was fixed after he took over charge of the said court and pronounced the judgment. The last but one sentence of Para 8 of the counter affidavit, is to the effect "It appears that the evidence admitted by his learned predecessor Mr. R.D. Mathur was not before him or he ignored all the material evidence." Along; with the counter affidavit, copy of review application has also been annexed as annexure C.A.1. In the said application, it was not stated that attention of the revisional court was invited to the additional evidence and any argument was raised in respect of the same or on the basis of the same before the revisional court.
3. In any case no purpose will be served by dismissing the writ petition and thereby permitting the revisional court to decide the revision after taking into consideration that additional evidence which was adduced but which is no more available on the file.
4. Through supplementary affidavit filed in this writ petition, it has been brought on record that respondent No. 3 after purchasing land from the petitioner, which is very near to the house in dispute has constructed a big house thereupon.
5. The entire emphasis before the revisional court was regarding knowledge of the landlord of the proceedings before R.C. & E.O. Probably additional evidence was also adduced in that regard. Revisional Court allowed the revision on the ground that notices were not issued to the landlord before declaration of vacancy, inspection and allotment, which were mandatory. In my opinion the case may be decided on an altogether different ground.
5. If a building falls vacant due to transfer of the tenant who is a government servant and allotment to him of another building then neither he nor his wife or sons can apply for allotment of the same. If a contrary view is taken then the whole purpose of declaring the building vacant will be frustrated. Allotment to wife is for the benefit of the husband unless they are living separately. Along with the tenant his family members have got right of residence and if they occupy the building it does not give rise to any vacancy. On the same principle, if a building has been declared vacant on the ground that the tenant has got another house or he has sublet it or he has removed its effect there from as provided under Section 12 then it can not be allotted either to that very tenant or to any of his family members as defined under U.P. Act No. 13 of 1972. Something which can not be done directly can also not be done indirectly. It will be the mockery of law to declare a tenanted building vacant on the ground that the tenant has got another house and then to allot the same building to the wife, son or daughter or any other family member of the same tenant. Accordingly there is no need to decide in this writ petition as to whether review was rightly allowed or not.
6. Allotment order is liable to be set-aside on the ground that respondent No. 2 after treating the building to be vacant by herself due to transfer of her husband and allotment of government accommodation to her husband could not apply for allotment of the building in dispute.
7. However, even if allotment order is set-aside landlord will not have any right to take possession because neither he initiated any proceedings for eviction against respondent No. 3 the tenant nor he applied for release. The allegation of the landlord that recently respondent No. 3 has constructed his own house requires fresh consideration.
8. Accordingly, writ petition is allowed. Judgment and order dated 15.9.1984 passed by the revisional court is set aside and order dated 14.10.1983 whereby allotment order dated 24.7.1980 was set aside is restored. However, it is clarified that in pursuance of the order of revisional court dated 14.10.1983 no eviction proceedings shall be initiated against respondent Nos. 2 and 3 before R.C. & E.O.
9. It is further directed that landlord is at liberty to file fresh release application before R.C. & E.O. under Section 16 of U.P. Act No. 13 of 1972 and in case in the said proceedings he is able to prove that there is vacancy in terms of Sections 12(1)(c) or 12(3) of the Act then vacancy shall be declared and release application of the landlord shall be considered.
10. I have held in Khursheeda v. A.D.J. 2004 (2) A.R.C. 64 and H.M. Kitchlu v. A.D.J. 2004 (2) A.R.C. 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief, already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent. Even otherwise while exercising powers under Articles 226/227 of the constitution of India, writ court is empowered to pass such consequential order as is necessary to do justice and adjust equities in between the parties. House in dispute is situate in Civil Lines, Jhansi. Existing rate of rent is Rs. 80/- per month which is highly inadequate.
11. Accordingly, it is directed that with effect from April 2006 onward tenant-respondents shall pay rent to the landlord-petitioner at the rate of Rs. 800/- per month inclusive of all taxes. No further amount shall be payable by the tenant.