JUDGMENT RAVI S. DHAVAN, J. 1. THIS is a matter under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and the Rules framed under it. 2. THERE was a composite and simultaneous order of the Rent Control and Eviction Officer, Fatehpur, rejecting the release application of the landlord and allotting the same premises to an Advocate and a Member of Legislative Assembly. This order was set aside by the learned District Judge in revision. The petitioner allottee is one Achal Singh, an Advocate and otherwise a Member of Legislative Assembly from Fatehpur. The District Judge set aside the composite order in revision, on the ground, amongst others, that it violated the rules of natural justice and denied the landlord from effective participation in the proceedings which were otherwise quasi-judicial. The learned District Judge remanded the matter back to the Rent Control and Eviction Officer, with certain directions, for initiating the proceedings de novo. Aggrieved, the petitioner allottee, aforesaid has moved the High Court under Article 226 of the Constitution of India. To get the perspective of the issue, it is best to set on record the direction issued by the learned District Judge in revision. The directions by themselves show where the Rent Control and Eviction Officer may have gone wrong. The directions given by the learned District Judge are in two sets. One contained in Rent Revision No. 34 of 1986 : Smt. Harbans Kaur and another v. Achal Singh by which the landlords pleaded that their release application had been illegally rejected on 28th February 1986 by the composite order in which the allotment had also been made. The release application was directed to be heard afresh in the light of certain observations made by the learned District Judge. The second revision was 33 of 1986: Harbans Kaur v. Achal Singh, by which the learned District Judge quashed the aforesaid composite order of 28th February 1986 in reference to the allotment proceedings also. In effect, the matter relating to release and allotment were to be examined afresh. In both the revisions the learned District Judge required the parties to appear before the Rent Control and Eviction Officer on 19th February 1987. The direction given by the learned District Judge in a reference to the context in two revisions is as below Re: release application in Rent Revision No. 34 of 1986. In both the revisions the learned District Judge required the parties to appear before the Rent Control and Eviction Officer on 19th February 1987. The direction given by the learned District Judge in a reference to the context in two revisions is as below Re: release application in Rent Revision No. 34 of 1986. "The revision is allowed. Order dated 28-2-86 is set aside with the direction that the application for release of the accommodation made by the petitioner shall be heard after calling for the report of the inspector in the light of the observations made above. Parties are directed to appear before the lower court on 19-2-1987. Sd. R. G. Shukla IInd Addl. District Judge, Fatehpur 20-1-1987." Re: allotment application in Rent Revision No. 33 of 1986. "The revision petition is allowed. Order dated 28-2-86 is quashed and a direction is issued that (1) the learned R. C. and E. O., Fatehpur shall get the notice of vacancy pasted in the notice board of his office (2) he shall issue notice to the owners and landlords of the accommodation after declaration of the vacancy (3) he shall also invite the applications for allotment of the accommodation and (4) after passing at least three days from the said pasting consider the applications for allotment of the priority basis under the Act and in case any application for release or objection against the declaration of vacancy are preferred or found pending before him, after disposing them of, pass suitable orders for allotment, according to law. Parties are directed to appear before the learned lower court on 19-2-1987. Sd/- R. G. Shukla, Illrd Addl. District Judge, Fatehpur 20-1-1987." 3. THE premises are 105, Civil Lines, Fatehpur. THEse were previously occupied by a tenant who ran a school known as "Playway English School". THE Managers of the School thought it fit to shift to their own building. A vacancy was in the offing. It appears from the facts as presented by the petitioner that he got wind of the vacancy before the landlord did. He mentions in paragraph 3 of the petition that he had knowledge of an impending vacancy on 5th December 1985 and accordingly he placed an application before the Rent Control and Eviction Officer in Form A under Rule 10 (1). 4. He mentions in paragraph 3 of the petition that he had knowledge of an impending vacancy on 5th December 1985 and accordingly he placed an application before the Rent Control and Eviction Officer in Form A under Rule 10 (1). 4. VIGILANT prospective allottees keep watch on accommodations which are likely to fall vacant and the petitioner was one such a person. At times they move applications seeking allotment even before the landlord may have knowledge of a vacancy which may occur in the premises which he owns. The mere action of moving an application, is legal as long as the proceedings which are consequential are in accordance with law because if there is a slip in the procedure, injury may be caused to a class of persons under the Act, who are entitled to release of the accommodation. In the case before this Court, the slip occurred when in pursuance of an impending vacancy in the knowledge of the petitioner and intimated to the office of the Rent Control and Eviction Officer, an inspection of the premises was ordered. From this stage onwards irregularities were committed and illegalities were precipitated. 5. THE petitioner was seeking an allotment of the premises aforesaid and it is on record that he moved an application desiring allotment on 5th December 1985. Within 48 hours of the moving of this application i.e. 7th December 1985 an order had been passed by the Rent Control and Eviction Officer that the premises be inspected. THE tenant had not intimated the Rent Control and Eviction Officer of the vacancy and the landlord had yet to do so, then at whose behest was the inspection being caused? 6. A prior notice that an inspection of the premises would be caused on a certain date is required by law. This has been prescribed in sub rule (2) of Rule 8. The rule says that an inspection of the building so far as possible shall be made in presence of the landlord and the tenant or any other occupant. It implies that the inspection ought not to be made in the absence of the landlord and the tenant or any other occupant, if there be any. The rule says that an inspection of the building so far as possible shall be made in presence of the landlord and the tenant or any other occupant. It implies that the inspection ought not to be made in the absence of the landlord and the tenant or any other occupant, if there be any. On 24th December 1985 an Inspector from the office of the Rent Control and Eviction Officer, without notice to the landlord, inspected the premises which were occupied by a school and would not otherwise be vacant till the end of the month i.e. 31st December 1985. The Inspector's report as on records reads- (translated from Hindi to English) Rent Control and Eviction Officer This is in reference to the premises 105, Civil Lines, the allotment of which has been sought by Sri Achal Singh, Member of Legislative Assembly, Abu Nagar, Fatehpur and in pursuance of whose application the inspection has been carried out. The details are as below:- (1) In this premises previously there was Playway English School. It has been vacated by the Head Mistress and transferred to her premises and thus, the premises is vacant. (2) At the time of inspection it was intimated that the landlord of the premises Mahendra Singh Bagga, who was not present. The premises was locked. (3) During inspection it was intimated that the premises has four rooms of dimensions of 8 x 10 x 10, 10 x 10 one latrine, one bathroom and one box room. Humbly submitted for necessary action. Sd/- R. D. Dwivedi Rent Control and Eviction Office Inspector, Fatehpur 24-12-1985 (On the report there is a footnote) "Put up on 31-12-1985" 7. FROM the memoranda of inspection, aforesaid certain facts are not in issue. There are, that an inspection was caused at the behest of the petitioner, a Member of Legislative Assembly, who had made an application for allotment of the premises. This shows the interest in the premises. As the inspection had been caused on the application of the petitioner, which is a matter of record, in the opening recital of the inspection note, a lis in a reference to the premises whether for consideration of allotment or a vacancy, had come on the record. 8. THE inspection note mentions that in the premises there was a school. THE reference is in the past tense. 8. THE inspection note mentions that in the premises there was a school. THE reference is in the past tense. THE Inspector did not investigate whether the tenancy had been determined or the date when it was coming to a close. THE Inspector did not investigate whether the tenancy was still alive. THE inspection note records that during the time of inspection it was intimated that the landlord was one Mahendra Singh Bagga, who was not present. Who gave this intimation has not been put on record. Thus, this part of the report was subject to be challenged. THE inspection note further places on record that the landlord was not present. Also not present was the tenant whose tenancy was to cease at the end of the month. The Inspector's report was required to be put on the notice board as required under the law. This is mandatory under sub rule (2) of Rule 8. An endorsement of 24th December 1985 on the inspection report records in effect that this inspection report should be on the notice board on 31st December 1985. It is not disputed in the petition that it was not put on the notice board. This has not been denied by the petitioner, in effect, it has been accepted that it was not put on the notice board. The mandate of sub rule (2) of Rule 8 was violated. 9. THE irregularities when the inspection was caused were, these (a) Notice of the inspection of the premises was not given to the landlord as required under the law; (b) inspection of the premises was caused in the absence of the landlord; (c) no effect was made to find out who the landlord was; (d) an intimation given by the anonymous person that the landlord was one Mahendra Singh Bagga was accepted without verification; (e) vacancy was presupposed without investigating whether the tenancy had been determined and (f) the inspection note does not record or bear out that at the time of inspection the facts were elicited from at least two respectable persons in the locality. 10. THE petitioner insists that the landlord impliedly had a notice of the allotment proceedings as on 31st December 1985 an affidavit was filed by the landlord in proceedings of 105 of 1986: State v. Mahendra Singh Bagga. 10. THE petitioner insists that the landlord impliedly had a notice of the allotment proceedings as on 31st December 1985 an affidavit was filed by the landlord in proceedings of 105 of 1986: State v. Mahendra Singh Bagga. It is submitted the landlord participated in the proceedings and it was not necessary to give him notice on the allotment proceedings. This submission on the facts of the present case, is untenable. On the date the affidavit was filed the proceedings had already been set for hearing and finalisation of the allotment. This is apparent from the order sheet placed by the petitioner on record of the petition. This is Annexure 6'. A party whose rights are being effected should he enter the scene when the case is being argued, cannot be said to have adequate notice on the initiation of the proceedings. There is a difference between initiating proceedings and the hearing of a case. Then, it was not the landlord who had participated when the case was fixed for final hearing on allotment on 31st December 1985. The person was a friend and next of kin of the landlord. He filed an affidavit before the Rent Control and Eviction Officer intimating the Court who the landlords of the premises were being Harbans Kaur widow of the late Mr. Santosh Singh and their sons Chiranjeet Singh and Gurdeo Singh. The affidavit further recited that the property had been purchased by a sale deed dated 12th March, 1976 from one Shanti Devi Verma and a copy of the sale deed was appended along with the affidavit; that the deponent Mahendra Singh Bagga had no locus standi in reference to the premises and the notice to him had been wrongly issued only because he received the rent from the erstwhile tenant on behalf of the landlord aforesaid; that the premises were occupied by a school known as Playway English School through its Manager at the rate of Rs. 400/- p.m. but the tenants did not intimate to the landlord in writing that they intend to vacate the accommodation on 31st December, 1985, but had done so orally; that Chiranjeet Singh was an officer with the Indian Railway posted at Ghaziabad as Senior Chargeman and was otherwise posted on deputation on an assignment of the Indian Railway at Zimbawe, Africa, since September, 1985 and his family is at Ghaziabad where the children upon finishing their examination will come to Fatehpur to reside in these very premises and that their goods and effects have already arrived for being arranged in the premises; that Gurdeo Singh one of the co-landlords was in Ludhiana where his marriage has been solemnised on 23rd December, 1985 and he will be coming with his wife on 3rd January, 1986 and would also reside in the same premises; that the premises is not vacant nor is likely to fall vacant; that the premises is not available for allotment as it is not vacant; that the application for allotment is not maintainable and in any case a notice in reference to the matter of allotment be sent to the landlord Mrs. Harbans Kaur, Chiranjeet Singh and Gurdeo Singh and finally it was prayed in this affidavit that the allotment proceedings should be rejected and the premises ought not to be allotted. 11. WHEN this affidavit was placed on record of the Rent Control and Eviction Officer one thing was clear that the landlords of the premises were identified and without notice. It was further clear that a person desiring allotment was taking advantage of the situation that a part of the family was in Ludhiana for a family wedding and the third co-landlord was in Zimbawe, Africa. The process of verification of a vacancy in the premises which is a prelude to an allotment proceedings began at the back of the landlord and without notice to them. This is not a case that the landlords were not available but one where for a few days were out of town. The petitioner took advantage of this circumstance, and intimated vacancy in these premises. 12. THE inspection which is to be undergone in pursuance of the rule 8 aforesaid, has a purpose. It is one of the first steps for ascertaining a vacancy. It is mandatory to inspect the premises. The petitioner took advantage of this circumstance, and intimated vacancy in these premises. 12. THE inspection which is to be undergone in pursuance of the rule 8 aforesaid, has a purpose. It is one of the first steps for ascertaining a vacancy. It is mandatory to inspect the premises. This is an exercise of physical verification by an on the spot assessment whether the premises is vacant, whether the tenant is about to leave the premises or the intention of the landlord if he does not desire any further allotment on the premises. It is for this reason that Sub- rule 2 of Rule 8 aforesaid mentions that the inspection "shall be made in the presence of the landlord and the tenant or any other occupant." THE fact that the rule requires that the inspection ought to be made in the presence of these persons and they must have prior intimation that an inspection is about to be caused of the premises, is logical. Without intimation the class of persons mentioned in sub-Rule (2), aforesaid, would not be available and if no intimation or notice is given to these persons then it would be defeating the purpose for which sub-Rule (2) aforesaid, exists. No satisfactory answer has been given to this Court why an inspection was caused in absence of the landlord or the persons who had occupied the premises. Thus, the proceedings for allotment had a wrong beginning. Rule 8 bad been violated. THE inspection which was made on 24th December, 1985 was no inspection in the eye of law. THE purpose of the inspection is spelt out in sub-Rule (1) of Rule 8. THE purpose: ascertainment of vacancy. Sub-Rule 1 of Rule 8 is clear in its terms when it says that the District Magistrate, shall, before making any allotment or release (in a reference to the context) get the same inspected. THE inspection has to be in accordance with law; the procedure is prescribed in sub-Rule (2). As the inspection was no inspection and violated the criteria set in sub-Rule (2), aforesaid, it cannot be taken cognizance of. Even this irregular and illegal memoranda of inspection places on record that it was intimated that the landlord of the premises is Mahendra Singh Bagga, who was otherwise not available. No sanctity can be attached to such an inspection note. Even this irregular and illegal memoranda of inspection places on record that it was intimated that the landlord of the premises is Mahendra Singh Bagga, who was otherwise not available. No sanctity can be attached to such an inspection note. No responsibility has been taken on who intimated that the landlord of the premises was Mahendra Singh Bagga. The Inspector does not even verify and leaves the person who gave this information as anonymous. One purpose of inspection is to find out who the landlord is. But, the inspection on 24th December, 1985, was carried out in the absence of the landlord as well as the person who occupied the premises as a tenant. And it is this inspection note which speeded the pace of the allotment proceedings on the premises. Why could not this inspection be made in the presence of the owners? 13. MAHENDRA Singh Bagga filed an affidavit on 31st December, 1985 by giving specific information on who the landlords were and that they were out of town. The affidavit explained, that between the three, one was on a foreign assignment and the other two, being the mother and the son, for a wedding of the latter in Ludhiana The aforesaid MAHENDRA Singh Bagga also placed on record that the accommodation is neither vacant nor is likely to fall vacant implying that there is no deemed vacancy. This affidavit remained uncontroverted throughout the proceedings. 14. UPON the filing of this affidavit it could be refuted by the office of the District Magistrate; but this was not done. The Rent Control and Eviction Officer ought to have noticed these facts and remedied the defect. When the aforesaid affidavit remained unchallenged and uncontroverted, the Rent Control and Eviction Officer, should have put the proceedings before him in abeyance and then considered whether the matter of deemed vacancy ought to proceed further. Allotment is contingent upon a vacancy in a premises. With the record glaring that the inspection was made in the absence of the persons mentioned in Sub- Rule (2) of Rule 8; that the landlords were persons other than mentioned in the inspection note, the irregularities and the illegalities in the proceedings could be corrected by inspecting the premises afresh after giving due notice to the owners. With the record glaring that the inspection was made in the absence of the persons mentioned in Sub- Rule (2) of Rule 8; that the landlords were persons other than mentioned in the inspection note, the irregularities and the illegalities in the proceedings could be corrected by inspecting the premises afresh after giving due notice to the owners. There was too much hurry and rush to close the proceedings set in motion at the instance of the petitioner to initiate and cause an inspection of the premises, seek an order on vacancy, and then an order of allotment. All, without notice to the owners. And, when the agent of the landlord does file an affidavit in proceedings already initiated, the petitioner desires the court to draw an assumption it ought to be assumed that the landlord has notice of the proceedings. The notice has to be given before each proceeding is initiated. 15. THE 'deemed vacancy' within the meaning of section 12 of the Act if it did arise after the erstwhile tenant, the school, vacated the accommodation, would be on or after 31st December, 1985. It is not in issue and is on record that the tenancy of the school was to draw close with the month of December. THE owners of the premises, were entitled to a notice under the first proviso to sub-section (1) of Section 16 of the Act. THE allotment order, could not be made unless the landlord had a notice under this proviso and had been heard upon it. This proviso, in terms says that 'before' the District Magistrate may make an allotment the landlord has to have an opportunity that there is no vacancy and an allotment ought not to be made. That this ought to be the approach has been settled by the Supreme Court in the case of Yogendra Tiwari v. District Jude, Gorakhpur, 1984 AWC 369 . Subsequently, in a recent decision the Supreme Court, 1986 AWC 1229 SC, it has further been held that upon a vacancy in a premises, the landlord has another right which cannot be curtailed. This is the right to nominate a tenant of his choice. In the present case, the landlord was deprived of the opportunity by the Prescribed Authority when he made an allotment on 28th February, 1985, in favour of Mr. This is the right to nominate a tenant of his choice. In the present case, the landlord was deprived of the opportunity by the Prescribed Authority when he made an allotment on 28th February, 1985, in favour of Mr. Achal Singh, Member of the Legislative Assembly, the petitioner before this Court. 16. FURTHER, even Rule 8 (2), prohibits the Prescribed Authority from passing an allotment order unless the objections pending are considered and decided. The issue of considering vacancy is primarily a matter between the landlord and the District Magistrate, when a release application of the landlord is pending consideration. A prospective allottee seeking an allotment order comes to the picture only after the release application of the landlord is rejected. A release application of the landlord ought not to be considered simultaneously with an application of a prospective allottee seeking allotment. This approach has been prescribed by the Full Bench decision of this Court in re: Talib Hasan v. Ist Additional District Judge, Nainital, 1985 AWC 1001 F.B. The Prescribed Authority, thus proceeded illegally in deciding the release application of the landlord simultaneously with allotment application of the petitioner, a prospective allottee. 17. THE cases cited at the Bar on behalf of the petitioner were: 1980 ARC 591; 1982 (2) ARC 53; 1984 (1) ARC 459 and 1984 (2) ARC 7. 18. IN view of the decisions of the Supreme Court and the Full Bench of this Court the cases cited are not relevant to the circumstances of the present case. IN fact, the submissions on behalf of the petitioner evaded the law as declared by the Supreme Court in the two decisions (supra) and the Full Bench, aforesaid. The last submission on behalf of the petitioner, was that the two revisions filed by the landlord before the District Judge, were incompetent. It is submitted that the memoranda of revision had not been signed by the landloard in person, but by counsel. This is a misconceived submission. A memoranda of revision signed by counsel, is proper and cannot be rejected, and this Court has held it to be so in two decisions, 1976 ALJ 974; 1980 ALJ 112. 19. It is submitted that the memoranda of revision had not been signed by the landloard in person, but by counsel. This is a misconceived submission. A memoranda of revision signed by counsel, is proper and cannot be rejected, and this Court has held it to be so in two decisions, 1976 ALJ 974; 1980 ALJ 112. 19. THUS in view of the facts as presented in the writ petition by the petitioner himself and the law applicable to the given circumstances, it is clear that the proceedings whether they relate to declaring a deemed vacancy in the premises or making of an allotment order, impugned, are illegal. In a rush to declare a deemed vacancy and consequential allotment order all in the same breath and simultaneously there are more than one illegalities which vitiate the proceedings. The reasons have already been given in this judgment. The manner in which inspection was carried out of these premises was illegal. No notice was given to the landlord in declaring a deemed vacancy in the premises and it was illegal to consider the matter relating to the allotment without answering the issue whether the premises in fact were vacant. The release application of the landlord is a matter between the District Magistrate and the owner of the premises. A prospective allottee has no right of interference in these proceedings; the Full Bench says so. In not giving a landlord notice prior to considering the question of vacancy is not only against the law but also against the decision of the Supreme Court delivered recently. Assuming that there had been a vacancy, denying the landlord notice on the allotment proceedings also vitiates any consequential allotment order and sacrificing certain rights of the landlord even in the allotment proceedings. The right to nominate an allottee being one of them. 20. THE allotment order passed in favour of the petitioner on 26th February, 1986 is illegal and has been rightly set aside by the IIIrd Additional District Judge, Fatehpur in his judgment of 28th January, 1987. There is no error in the two judgments of the learned 3rd Additional District Judge in Rent Revision Nos. 32 and 34 of 1986 both dated January, 1987. Rent Revision No. 33 of 1986 is in reference to the allotment order dated 28th February, 1986 in favour of the petitioner. There is no error in the two judgments of the learned 3rd Additional District Judge in Rent Revision Nos. 32 and 34 of 1986 both dated January, 1987. Rent Revision No. 33 of 1986 is in reference to the allotment order dated 28th February, 1986 in favour of the petitioner. Rent Revision No. 34 of 1986 is in reference to the release application of the landlord which was also rejected by order of 28th February, 1986. 21. THE landlord had fairly contended in the affidavit that the erstwhile tenant, the Manager of a school, vacated the premises on 31st December, 1985 determining the tenancy voluntarily on this date. Without going into the background of the case again, two matters were to be considered by the Prescribed Authority the delegatee of the District Magistrate under the Act aforesaid. Firstly the release application of the landlord and contingent upon the decision on the release application, secondly, the allotment proceedings. THE proceedings will now be considered denovo and afresh, an exercise required in the two revisions by the directions of the 3rd Additional District Judge aforesaid. 22. BEFORE the matter is remanded back for consideration the Prescribed Authority will first ensure that the petitioner vacates the accommodation by giving him two months' time to do so, from the date when a certified copy of this judgment is placed before the Prescribed Authority, aforesaid- In case the petitioner does not vacate the accommodation within the time granted by the Prescribed Authority, then he will be liable to be evicted forthwith. Should the occasion arise to evict the petitioner the District Magistrate will ensure that this is done. When the premises are vacated the Prescribed Authority will after intimating the date by notice to the landlord, consider his release application in accordance with law, keeping in mind the Full Bench decision of this Court (supra). 23. CONTINGENT upon the decision of the Prescribed Authority on the release application of the landlord, will depend the future course of the allotment proceedings. This Court does not find any illegality in the judgments of the learned 3rd Additional District Judge, Fatehpur in Rent Revision No. 33 of 1986 and Rent Revision No 34 of 1986 both dated 28th January 1987. The matter will be remanded back to the Prescribed Authority concerned in the light of the observations made above in this judgment. 24. This Court does not find any illegality in the judgments of the learned 3rd Additional District Judge, Fatehpur in Rent Revision No. 33 of 1986 and Rent Revision No 34 of 1986 both dated 28th January 1987. The matter will be remanded back to the Prescribed Authority concerned in the light of the observations made above in this judgment. 24. ON behalf of the landlord the contesting respondent appearance had been entered by Mr. A. K. Sand, Advocate. In these circumstances the petition is dismissed with costs. Petition dismissed.