Ram Rati v. Vidya Sagar — 1983 DIGILAW 175 (ALL)

JUDGMENT N.D. Ojha, J. - Vacancy in respect of an accommodation was notified on November 9, 1978. From the impugned order of the District Judge, Kanpur, Respondent No. 3 it appears that thereafter a notice was issued to Smt. Ram Rati who was admittedly the landlord of the aforesaid accommodation at that time under Rule 9(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972 intimating her the date fixed for considering the question of allotment of the said accommodation. This notice was served on Smt. Ram Rati on November 18, 1978. She made an application for release of the accommodation in question on November 20, 1978. This application was ultimately rejected by the Rent Control and Eviction Officer on May 9,1979. Thereafter on May 16, 1979 the Rent Control and Eviction Officer passed an order allotting the accommodation in question in favour of Respondent No. 1. On coming to know of this order Smt. Ram Rati made an application on May 23, 1979 for review u/s 16(5) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. This application was dismissed by the Rent Control and Eviction Officer on November 20, 1979. A revision filed by Smt. Ram Rati was dismissed by the District Judge on December 18, 1979. Aggrieved Smt. Ram Rati filed the present writ petition. She died during the pendency of the writ petition and an application was made by Smt. Rajjo Devi for being substituted in her place on the basis of a Will said to have been executed in her favour by Smt. Ram Rati. An order was passed on January 25, 1983 on the said application to the following effect: Heard learned Counsel for the parties. Without deciding the question whether the Will relied on by the applicant is valid and genuine, the applicant is permitted to be substituted in place of Smt. Ram Rati Devi for the purposes of this case. Let the name of Smt. Ram Rati Devi be struck of and in her place the name of Smt. Rajjo Devi be substituted. In pursuance of that order the name of Smt. Rajjo Devi was substituted as the Petitioner. 2. Let the name of Smt. Ram Rati Devi be struck of and in her place the name of Smt. Rajjo Devi be substituted. In pursuance of that order the name of Smt. Rajjo Devi was substituted as the Petitioner. 2. It was urged by counsel for the Petitioner that no notice having been given to Smt. Ram Rati that the application for allotment made by Respondent No. 1 shall be considered on May 16, 1979, the order of allotment passed on that date was liable to be quashed for non-compliance of the mandatory requirement contained in Rule 9(3) of the Rules in this behalf. 3. Having heard counsel for the parties I am of opinion that there is substance in this submission. Rule 9(3) provides: 9. Notice of vacancy.... (3) Immediately after the receipt of intimation of vacancy of any building in the office of the District Magistrate, the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by posting a copy of the list of the vacant buildings on the notice board of that office, specifying therein the date on which the question of allotment will be considered. He shall also issue a notice to the landlord intimating him the date so fixed. On the date so uxed the District Magistrate shall consider the cases of all applicants registered in the register maintained in Rule 10 and shall pass an order u/s 16 in accordance with Rules 10 and 11. That the requirement of Rule 9(3) of giving a notice to the landlord intimating him the date fixed for consideration of the question of allotment is mandatory admits of no doubt. Counsel for Respondent No. 1 has not disputed this legal proposition and in ray opinion rightly. What has been urged by him, however, is that since a notice under Rule 9(3) had already been served on Smt. Ram Rati on November 18, 1978, it was not necessary to serve any further notice on her about the date on which the application for allotment was to be considered after her application for release was dismissed on May 9, 1979. I find it difficult to accept this submission. I find it difficult to accept this submission. The purpose of a notice under Rule 9(3) of the Rules in view of the clear language used therein is to give the landlord an intimation of the actual date on which the application for allotment are to be considered. One of the reasons for laying down the requirement aforesaid in Rule 9(3) appears to be the provisions contained in Section 17(2) of the Act which inter alia provides that where a part of a building is in the occupation of the landlord for residential purpose, or is released in his favour under Clause (b) of Sub-section (1) of Section 16 for residential purposes, the allotment of the remaining part thereof under Clause (a) of the said Sub-section (1) shall be made in favour of a person nominated by the landlord unless for special and adequare reasons to be recorded the District Magistrate allots it to any other person. 4. In the instant case also the order of allotment was sought to be set aside by Smt. Ram Rati on the ground that the provisions of Section 17(2) of the Act were attracted inasmuch as a part of the building was in her occupation for residential purposes and she was entitled to have a tenant of her own choice in the remaining part. According to her since no intimation was given to her about the date on which the applications for allotment were to be considered, she was deprived of her right to make nomination of a tenant of her choice as contemplated by Section 17(2) of the Act. A similar submission had been made before the District Judge but was repelled. It was held by the District Judge that after the application for release was dismissed on May 9, 1979 Smt. Ram Rati had ample opportunity of making a nomination u/s 17(2) of the Act, the order of allotment in favour of Respondent No. 1 having been passed on May 16, 1979. Suffice it to say so far as this view taken by the District Judge is concerned that u/s 17(2) of the Act no time has been fixed within which a nomination is to be made. Obviously the nomination can be made even on the date on which the applications for allotment are to be considered. Suffice it to say so far as this view taken by the District Judge is concerned that u/s 17(2) of the Act no time has been fixed within which a nomination is to be made. Obviously the nomination can be made even on the date on which the applications for allotment are to be considered. It may be that in a given case the landlord may not have a tenant of his choice till the date on which his application for release is dismissed and may have a tenant of his choice thereafter. One of the purposes of issuing a notice to the landlord under Rule 9(3) of the Rules intimating him the date fixed for consideration of the question of allotment being to give him an opportunity to make a nomination u/s 17(2) of the Act, the said purpose will be frustrated unless the landlord knows the date on which the application for allotment are to be considered. 5. In Vinod Chandra Dubey Vs. IX Addl. Distt. and Sessions Judge and Others, (1978) AWC 726 an application for allotment was filed on which the landlord had made an endorsement that the building may be allotted to that applicant. No notice of the date fixed for consideration of the applications for allotment was given to the landlord and the building was allotted to a person other than the person on whose application the landlord had made the endorsement referred to above. The order of allotment was challenged inter alia on the ground of non-compliance of Rule 9(3) of the Rules. The submission made by the landlord in this behalf was accepted. It was held that by making the endorsement on one of the applications for allotment the I andlord did not waive his right of receiving a notice under Sub-rule (3) of Rule 9. 6. In Sarfulla v. Khalil Ahmad 1979 ARC 144 an application for allotment was made and the landlord filed objection thereto. In the proceedings for allotment, however, no notice as contemplated by Rule 9(3) of the Rules intimating the landlord of the date fixed for consideration of the applications for allotment was served on him. 6. In Sarfulla v. Khalil Ahmad 1979 ARC 144 an application for allotment was made and the landlord filed objection thereto. In the proceedings for allotment, however, no notice as contemplated by Rule 9(3) of the Rules intimating the landlord of the date fixed for consideration of the applications for allotment was served on him. It was held that notwithstanding the fact that the landlord had notice of the application for allotment and an objection had been filed by him he was still entitled to a notice under Rule 9(3) of the Rules intimating him the date fixed for consideration of the applications for allotment inasmuch as the compliance of Rule 9(3) was mandatory. 7. Coming to the facts of the instant case, since notice under Rule 9(3) had already been served on the landlord earlier, it may have been not necessary for the Rent Control and Eviction Officer to send another formal notice to the landlord intimating her about the date on which the applications for allotment were to be considered consequent upon her application for release being dismissed on May 9, 1979 and intimation of the said date could have been given to the landlord by fixing that date on May 9, 1979 itself when the application for release was dismissed and by getting an endorsement on the order sheet from the landlord that she had received notice of the date fixed for consideration of the applications for allotment. Even was, however, not done. The result of this omission was that the landlord did not have any notice whatsoever of the date namely, May 16, 1979 on which the applications for allotment were considered by the Rent Control and Eviction Officer and the accommodation in question was allotted in favour of Respondent No. 1. The landlord was thus deprived of the opportunity of making the nomination as contemplated by Section 17(2) of the Act in favour of a tenant of her choice. In this view of the matter the order of allotment cannot be sustained. 8. The landlord was thus deprived of the opportunity of making the nomination as contemplated by Section 17(2) of the Act in favour of a tenant of her choice. In this view of the matter the order of allotment cannot be sustained. 8. In the result the writ petition succeeds and is allowed and the order of allotment dated May 16, 1979 passed by the Rent Control and Eviction Officer in favour of Respondent No. 1 as also his order dated November 20, 1979 dismissing the application for review filed by Smt. Ram Rati along with the order dated December 18, 1979 passed by the District Judge dismissing the revision filed by Smt. Ram Rati are quashed. The Rent Control and Eviction Officer is directed to fix a date for consideration of the applications for allotment and to dispose of those applications including the application of Respondent No. 1 on that date. Counsel for the parties are agreed that their respective clients shall appear before the Rent Control and Eviction Officer on March 14, 1983 on which date the Rent Control and Eviction Officer shall fix the date on which the application for allotment are to be considered. In the circumstances of the case, however, the parties shall bear their own costs. A copy of this order may be supplied to counsel for the parties within a week on payment of usual charges.