Mohd. Naseem v. A. R. O. /R. C. AND E. O. — 1979 DIGILAW 1356 (ALL)

JUDGMENT : B.D. Agarwala, J. The Petitioner is the landlord of premises No. R-7/89, Chhota Ghalibpura, Agra. By means of this petition under Article 226 of the Constitution, he has challenged the validity of the allotment order dated October 26, 1976.passed by the Rent Control and Eviction Officer, Agra. The challenge is mainly on the ground of breach of provisions contained in sub-clause (2) of Rule 8 and Sub-clause (3) of Rule 9 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 framed under U.P. Act XIII of 1972 (hereinafter referred to as the Rules). 2. It is the Petitioner's case that one Zeeshan Husain was the tenant in the ground-floor accommodation of the aforesaid premises. He was a tenant for the last ten years and paid rent till the month of October, 1976. Zeeshan Husain colluded with Mohd. Sharif, who is Respondent No. 3 to this petition and an application for allotment of the accommodation was filed by Mohd. Sharif before the Rent Control and Eviction Officer, Agra, and without any notice to the Petitioner, and upon a report having been submitted by the Rent Control Inspector, allegedly based on some inspection made in absence of the Petitioner, an order of allotment of the accommodation in favour of Mohd. Sharif was passed. Thereupon the Petitioner filed a review before the Rent Control and Eviction Officer under Sub-section (5) of Section 16 of the Act. At the Same tune, the Petitioner filed a revision against this order of allotment, which revision was dismissed by the additional district judge, Agra by his and order dated October 17, (sic) Thereupon, the Petitioner filed (sic) in this Court praying for the quashing of the allotment order dated 26-10-1976 as also the order of the Additional District Judge dated October, 17, 1977. The Petitioner's grievance also is that his review application still remains undecided. 3. Before dealing with the points arising for decision in relation to the aforementioned rules, it appears necessary to analyze the requirements thereof. 4. Sub-rule (1) of Rule 8 makes mandatory that before any order of allotment or release may be made, the building must be inspected. The Petitioner's grievance also is that his review application still remains undecided. 3. Before dealing with the points arising for decision in relation to the aforementioned rules, it appears necessary to analyze the requirements thereof. 4. Sub-rule (1) of Rule 8 makes mandatory that before any order of allotment or release may be made, the building must be inspected. Sub-rule (2) further provided that this inspection so far as possible, shall be made in the presence of the landlord and the tenant or any other occupant It further requires that the facts mentioned in the report should wherever practicable be elicited from atleast two respectable persons of the locality and the conclusion of the inspection report must be posted on the notice board of the office for the information of the general public;. and requirement further is that any order of allotment if passed must not be-passed before expiration of three days from the date of such posting on the notice board. The authority is further obliged to dispose of any objections received in the meantime after consideration of evidence produced by objector or any other person. 5. Sub-rule (1) of Rule 9 lays down the necessary contents of the notice of vacancy which is to be given by every tenant to the District Magistrate, Sub-rule (2) lays down the manner and method of presentation of this. Sub-rule (3) requires that upon receipt of intimation of vacancy, the same shall be entered in a register maintained, and, the information is to be notified on the notice board of the office for the information of the general public and this further requires specification of the date on which the question of allotment would be considered. The Rule then provides that a notice shall be issued to the landlord intimating him the date so fixed and it is on this date that the cases for all applicants for allotment have to he considered and orders passed. Rule 10 further lays down the procedure for allotment. It inter alia lays down the manner and method of maintenance of register of applications received for allotment of buildings. 6. It would thus be seen that these rules which set out a detailed procedure arc salutary and the object of laying down the procedure is to present arbitrariness and unfair play in making such orders. It inter alia lays down the manner and method of maintenance of register of applications received for allotment of buildings. 6. It would thus be seen that these rules which set out a detailed procedure arc salutary and the object of laying down the procedure is to present arbitrariness and unfair play in making such orders. This Court has held that the provisions of Sub-clause (1) of Rule 8 and second part of sub-clause" (2) of rule 5 and Sub-clause (3) of Rule 8 are mandatory. The first part of sub-cluses (8) of Rule 8 has been held to be dictionary See Roshan Lal (sic) additional District Judge, (sic) 624; Shankar Lal v. II Additional District Judge, Bulanshar 1978 ARC 398. 7. Sub-clause (3) of Rule 9 has been held to be mandatory-See Roshan Lal Agarawal v. Additional District Judge, Kanpur 1979 UPRCC 624; Vinod Chand Dubey v. Additional District Judge 1978 UPRCC 528; Smt. Bhagwati Shah v. District Judge, Kumatm 1977 UPRCC 534; Shakti Padh Ray v. Amapurna Devi 1977 UPRCC 121. 8. It may be mentioned that in the instant case, since there was much dispute of facts between the parties, upon my direction, the learned Chief Standing Counsel produced the original record of the allotment proceedings before me, and the, facts which shall hereinafter be noticed are those found as a result of perusal of the record. 9. The contention raised on behalf of the. Petitioner is that even though because.of the use of the expression so far as possible in first part of Sub-clause (2) of rules it-may be said that this part, of the Rule is directory but it must be shown in each case as to why it was not possible to make the inspection in the presence the landlord and the inspector must in his report clearly indicate as to was it was not possible for him to make the inspection in the presence of the landlord. This, according to the learned Counsel for the Petitioner, must be established before it could be said that this part of the rule was complied with in a given case. 10. This submission of the learned Counsel finds considerable support from the case of Roshan Lal Agarwal Additional District Judge, Kanpur (supra). In Smt. Rani Vs. This, according to the learned Counsel for the Petitioner, must be established before it could be said that this part of the rule was complied with in a given case. 10. This submission of the learned Counsel finds considerable support from the case of Roshan Lal Agarwal Additional District Judge, Kanpur (supra). In Smt. Rani Vs. Deputy Director of Consolidation, Bareilly and Others, AIR 1959 All 525 learned Single Judge of this Court rightly held that the expression 'as far as possible really meant that the principles are to be observed unless it was not possible to follow them in the particular circumstances. 11. In the instant case, Mohd. Sharif filed an application for allotment in Form 'A' as provided in Rule 10(1) of the Rules. This application was filed on 18th October, 1976. On the same date, the Rent Control and Eviction Officer directed the Rent Control Inspector to submit his inspection report by October 23, 1976. On the same date, Zeeshan Hussain, the sitting tenant, gave notice of vacancy. In both the application for allotment as well as the notice of vacancy, the address of the landlord was shown as resident of Sui Katra (the correct address being as resident of house No. 11/89, Sabun Katra). It was mentioned there in that the tenant Zeeshan hussain intended to go out of Agra and, therefor, the accommodation was likely to fall vacant. On the next date i.e., October 19, 1976, a notice was issued to the landlord on his address shown as Shi Katra asking him to appear in connection with these proceedings on the 25th October, 1976. It was nowhere mentioned in this notice that the matter of allotment was to be considered oat that date. On the same day, the vacancy was also notified on the notice board. It was specified in this notice that the last date for receipt of allotment applications in respect of the accommodation was October 25, 1976. On the very next day i.e., 20th October, 1976, the inspector submitted his report and on that very day the conclusion of the inspectors report was posted on the notice board of the office. It was specified in this notice that the last date for receipt of allotment applications in respect of the accommodation was October 25, 1976. On the very next day i.e., 20th October, 1976, the inspector submitted his report and on that very day the conclusion of the inspectors report was posted on the notice board of the office. The inspector mentioned in his report that at the time of his inspection Sri Zeeshan Husain was not present and it was told by the witnesses and the neighboures that Sri Zeeshan Husain was going to vacate the accommodation and was leaving Agra. He further reported that he could not contact the landlord. The inspector concluded his report by saying that in the instant case, the parties should be called and heard, so that (sic) correct factual position be clearly found out. The order of allotment was made on 26th October, 1976 without taking any steps to call the parties, and, bearing them even inspite of a clear indication to that effect had been pointed out by the inspector in his report. In the order of allotment, it was clearly mentioned that the notice had been sent to the landlord but he did not appear.and. since Mohd. Sharif was the only applicant for allotment of the accommodation in question it-was allotted in his favour. 12. From the facts thus found, it stands clearly established that the Rent Control Inspector failed to indicate as to why it was not possible for him to make the inspection is the presence of the landlord. He was required to submit his inspection report till October (sic). There appear to be no reason and none has been shown as to what was the hurry in making the inspection on the very next date and why no effort was made to contact the landlord on any of the subsequent days till before October 25, 1976. If the landlord could not be met on a particular date, at a Particular point of time when the inspector is supposed to have visited the (sic) made by him from merely saying, that he did not meet the landlord. 13. If the landlord could not be met on a particular date, at a Particular point of time when the inspector is supposed to have visited the (sic) made by him from merely saying, that he did not meet the landlord. 13. On the contrary, as noticed above, undue haste with which the inspector submitted his report-inspite of the fact that according to his showing the report was incomplete, only leads one to the necessary conclusion that he was not performing his duties in a bonafide manner as required by law. 14. I am clearly of the opinion that a mere pretext of making inspection cannot meet the requirement that the inspection has to be made in the presence of the landlord. It is only white clear circumstances are shown that it has not been possible to make tot inspection in the presence of the landlord then and then alone the fact of not making inspection in his presence would not vitiate the order of allotment subsequently passed. The salutary nature of this provision is self evident, the landlord is the best person in possession of facts which could aid the authority in coming to a correct conclusion in regard to question of vacancy of a building. 15. Next submission which has been made by the learned Counsel for the Petitioner is in regard to non-compliance of mandatory requirement of notice to the landlord of the date fixed for consideration of the question of allotment, as provided for in Sub-clause (3) of Rule 9 of the Rules. This provision of notice to the landlord, as already noticed, has been held to be mandatory by this Court. From the facts already noticed above, the notice dated 19th October, 1976 was sent to the landlord, which according to the landlord was not even tendered, it was not stated in this notice that the date on which the landlord was to appear was the date fixed for consideration of the question of allotment. Apparently, it was a notice issued even prior to the inspectors report. This was obviously a notice in relation to some preliminary, inquiry sought to be made in' regard to the question as to whether the accommodation was likely to fall vacant This notice thus could not satisfy the requirement of Sub-rule (3) of Rule 9 16. Apparently, it was a notice issued even prior to the inspectors report. This was obviously a notice in relation to some preliminary, inquiry sought to be made in' regard to the question as to whether the accommodation was likely to fall vacant This notice thus could not satisfy the requirement of Sub-rule (3) of Rule 9 16. It is further noteworthy that on 19-10-76 the vacancy itself, was notified on the notice board and even in this notice it was not specified as to on what date the question of allotment would be considered. The only mention was of the last date of receipt of applications, namely, till 25-10-76, The notice contemplated by Sub-rule (3) of Rules 9 is notice of the date fixed for consideration of the question of allotment and has to be issued to the landlord at the stage mentioned in this clause. There was thus clear breach of Sub-rule (3) of Rule 9 of the Rules. 17. For these reasons, therefore, the allotment Order made in favour of Mohd. Sharif cannot be sustained. 18. U.P. Act No. XIII of 1972 and the rules framed thereunder, some of which have been dealt with above clearly point put the necessity of the landlord having notice of the proceedings for allotment, The want of notice to the landlord may cause serious prejudice to his rights. If the landlord is aware of the intention of the tenant vacating the accommodation he can apply for release of the accommodation provided he so bona fide requires. Sub-section (2) of Section 15 makes it obligatory upon every tenant vacating building to give notice to the landlord Also, and, that too not less than 15 days before the vacancy. Some rules may also be noticed in this regard. 19. Sub-clauses (a) and (d) of Sub-rule (5) of Rule 10 of the Rules are cases contemplated where the building shall not ordinarily be allotted to the persons mentioned in these sub-clauses, order to ascertain that; these sub-clauses apply to a given case, it is necessary that the correct facts fee elicited from the landlord. Similarly, Sub-rule (10) of these Rules also points out to the necessity of the landlord having notice of the proceedings. Apart. from this Section 17 which relates to allotment of a part of a building where a part thereof (sic) landlord be of ore such an accommodation is allotted. 20. Similarly, Sub-rule (10) of these Rules also points out to the necessity of the landlord having notice of the proceedings. Apart. from this Section 17 which relates to allotment of a part of a building where a part thereof (sic) landlord be of ore such an accommodation is allotted. 20. this view of mine finds support from Bharat Lal Jaiswal v. Additional District Judge 1976 UPRCC 359 ; Smt. Bhagwati Shah v. District Jude, Kumaun 1977 U P RCC 534 and Shakti Padh Ray v. Armapuranna Devi 1977 UPRCC 121. 21. It must be observed that the authority allotting, an accommodation must indicate clearly in its order the facts relating to service upon the landlord. The order should also show as to why it was not possible to get the inspection made in the presence of the landlord. The authority should also address itself to these questions. 22. Learned Counsel for Mohd. Sharif has placed strong reliance upon a decision of the learned Single Judge of this Court in Narendra Kumar v. First Additional District Judge, Kumaun 1977 UPRCC 153. In that case, the only ground on which the allotment order was challenged was that no notice of or copy of the allotment application was given to the Petitioner. Further in that case, on the own case of the landlord vacancy had occurred. That decision was greatly influenced by the further fact that the complaint of the landlord that had the declaration for vacancy been made in accordance with the rules, he would have received the notice and would have filed an application for release, was an afterthought. la the instants case, the landlord has form the very beginning taken this case. In the revision against the allotment order, a clear prayer was made by him that the revision be allowed and he be given an opportunity to make an application For re- lease of the accommodation and to substantiate his need. Even in the application for review filed by him u/s 16(5) of the Act, the prayer was that the order of allotment be-reviewed and the accommodation be released in his favour after giving due opportunity to substantiate his need. - This decision hence has no application to the facts of instant case 23. Before parting with this case. Even in the application for review filed by him u/s 16(5) of the Act, the prayer was that the order of allotment be-reviewed and the accommodation be released in his favour after giving due opportunity to substantiate his need. - This decision hence has no application to the facts of instant case 23. Before parting with this case. It must be observed that U.P. Act No. XIII of 1972 and the rules framed there in under are in force in the State since 1972. It is high time that adequate safeguards against arbitrariness, introduced by the provisions of the Act and Rules, are strictly followed. 24. This petition is, accordingly, allowed. The order of allotment dated 26th October, 1976 as also the judgment and order dated 17th October, 1977 of the Additional District Judge are quashed. The Petitioner would be entitled to his costs of this petition.