JUDGMENT N.N. Mithal 1. The order challenged in this petition under Article 226 of the Constitution of India have been passed respectively by the Rent Control and Eviction Officer releasing the accommodation in favour of the landlord and the other passed by the revisional court dismissing the petitioners' revision. 2. The main ground of attack is two fold. Firstly, chat the accommodation was not vacant and without deciding this question, no release application could have been considered and secondly the release application was disposed of without giving any opportunity to the petitioner and without considering his application for allotment after considering his need qua the need of the landlord. Before entering upon the discussion on the questions raised, it would be relevant to have some background facts to understand how the controversy arose. Respondent no. 3 admittedly is the owner of the disputed building and was in Government Service having retired in 1971 He remained employed privately for sometime and ultimately came to settle in Agra in 1981. He is suffering from paralysis and is residing in the ground floor portion of the house. The dispute relates to the first floor portion which was in the tenancy of one Mahendra Vohra since 1971. Mahendra Vohra vacated the premises on 25-1-1983 but instead of handing over possession to the landlord he allowed one T. P. Singh Chauhan to occupy it. However on 14-3-1983 Chauhan allegedly gave the keys of the house to the petitioner who handed over the same to the landlord. It is said that on 15-5-1983 the petitioner was inducted as a tenant by the landlord at the rate of Rs 200/- per month for a period of one year but immediately thereafter he started harassing him and, therefore, he applied for allotment on 2-7-1983. Before this, another application had been moved for allotment by T. P Singh Chauhan on 17-5-1983. Copies of these applications are Annexures SCA 1 and SCA 2 filed by the landlord. The landlord filed objections against the allotment applications in which he also made a prayer for the release of the accommodation under section 16 (1) (b) of U. P. Act 13 of 1972. An affidavit in support of the release application was also filed on 27-9-1983. 3. The landlord filed objections against the allotment applications in which he also made a prayer for the release of the accommodation under section 16 (1) (b) of U. P. Act 13 of 1972. An affidavit in support of the release application was also filed on 27-9-1983. 3. All these matters came up for hearing before the Rent Control Eviction Officer on 22-11-1985, a date on which the petitioner and the other applicant T. P. Singh Chauhan were absent. The officer considered the release application and allowed the same. On 24-11-1985 the petitioner applied for recall of that order but the same was rejected on 20-12-1985. Aggrieved by the order dated 22-11-1985 and the one passed on 20-12-1985, the petitioner filed a revision which came up for hearing before the VII Addl. District Judge, Agra. The revision was also dismissed on 27-3-1987. The submission for the petitioner was that it was incumbent on the Rent Control Eviction Officer to first determine as to whether the accommodation was vacant or not. Unless a finding to this effect had been given, he had no jurisdiction to decide the question of release in favour of the landlord. This contention is based on the submission that after the vacation of the house by Mahendra Vohra, he had been inducted by the petitioner as a tenant on 15-5-1983 and even though there was no allotment order in his favour, he was recognised as a tenant and, as such, the accommodation was not vacant. 4. On the other hand, it has been argued on behalf of the landlord respondent that the question of vacancy was not at all an issue between the parties and even if a formal order declaring vacancy was required, in the present case, both the sides having admitted that the building was vacant, this point had become a non issue and on this ground, the release order cannot be said to be vitiated. It was further submitted that in fact it is not necessary that a formal order declaring vacancy should be passed. It is, therefore, necessary to first examine as to whether the determination of vacancy is a precondition for deciding the release application. Section 12 of the Act deals with vacancy of a building which may be either deemed or actual. It was further submitted that in fact it is not necessary that a formal order declaring vacancy should be passed. It is, therefore, necessary to first examine as to whether the determination of vacancy is a precondition for deciding the release application. Section 12 of the Act deals with vacancy of a building which may be either deemed or actual. According to it, landlord or tenant shall be deemed to have ceased to occupy the building or a part thereof it any of the three things mentioned therein happens. Sub-clauses (2), (3), (3-A) and (3-B) also lay down when the vacancy will be deemed to have occurred on the happening of events specified therein Sub-clause (4) of section 12 lays down as under : "(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2), sub-section (3), sub-section (3-A) or sub-section (3-B) shall, for the purpose of this chapter, be deemed to be vacant." 5. Without going into any further details, it may be stated that if a tenant occupying a building ceases to occupy it, a vacancy occurs within the meaning of section 12. When Mahendra Vohra who was admittedly a tenant in the premises since 1971 vacated the same on 25-1-1983, a vacancy had occurred within the meaning of Section 12 (1) of the Act. At this stage the question arises as to whether by induction of the petitioner into the premises, a new tenancy had been created. Learned counsel for the petitioner has relied upon two decisions in his support. The first case is Udhao Dass v. Prem Prakash, 1963 AWR 125 where it was held : "A contract of tenancy of an accommodation governed by U. P. (Temporary) Control of Rent and Eviction Act entered into by a landlord with a person on payment of rent by the latter, for the purpose of carrying on business in the accommodation, any violation of a general or special order issued by the District Magistrate concerned under section 7 (2) of the Act is not void under section 10 read with section 23 of the Contract Act." 6. The learned counsel for the petitioner also relied upon the case of Murlidhar Agarwal v. State of U. P., AIR 1974 SC 1924 where also similar question came up for consideration and it was held by the Supreme Court that the tenant could not be evicted from an accommodation without complying with the conditions of section 3 of the Act even though there was no allotment order in favour of the tenant. It is, however, significant to note that in paragraph 17 of the Report, the Supreme Court observed as under : "The landlord and the tenant cannot, by their agreement, bind the District Magistrate, inspite of the lease the District Magistrate may treat the accommodation as vacant and evict therefrom the tenant who is in occupation of the accommodation without an allotment order. This is his statutory obligation but the appellants (landlords) would be estopped from denying that the respondent is a tenant." Thus merely because the petitioner claims to have been inducted by the landlord as a tenant in the building, it will not make any difference so far as his status vis a vis the District Magistrate is concerned. Notwithstanding the landlord admitting him as a tenant in the premises, the District Magistrate shall be within his statutory right to treat him as an unauthorised occupant in the absence of any allotment order in his favour. It is no body's case that the petitioner had been issued any order of allotment before or after he entered into possession. As a matter of fact section 11 and 13 of the Act create an absolute bar on creating tenancy by mutual agreement without an order of allotment. While section 11 prohibits a landlord to let any building except in pursuance of an allotment order issued under section 16, section 13 places a bar on any person to occupy a vacant building in any capacity on behalf of the person who ceases to occupy it otherwise than under an order of allotment or release under section 16. While section 11 prohibits a landlord to let any building except in pursuance of an allotment order issued under section 16, section 13 places a bar on any person to occupy a vacant building in any capacity on behalf of the person who ceases to occupy it otherwise than under an order of allotment or release under section 16. The section also lays down that if a person purports to occupy it, he shall, without prejudice to the provisions of section 31, be deemed to be an unauthorised occupant of such building or part, such being the legal position, it will be naive to say that the petitioner would be granted the status of a tenant merely because the landlord accepts him as such. 7. Apart from the above, applications for allotment annexed as Annexure SCA-1 and SCA-2 had been moved by T. P. Singh Chauhan and the petitioner respectively on 17-5-1983 and 2-7-1983. These applications are on the prescribed form and in clause 15, the particulars of the building desired to be allotted have to be mentioned. Sub-clause (c) of the Form requires information as to whether the building was vacant or likely to fall vacant. Against this column, T. P. Singh Chauhan has mentioned : "Legally vacant in possession of the applicant." 8. Similarly in the application for allotment moved by the petitioner, he has written against column 15-B which is meant for stating the present occupation and mode of vacancy that "Mr. Verma (Sic Vohra) vacated and gave possession to T. P. Singh Chauhan illegally who has vacated and now applicant is in occupation". Against column 7-C he has mentioned "legally vacant". From the above two applications, therefore, it is apparent that both of them claimed that the building was legally vacant and the very fact that they applied for allotment of the same presupposes that the building was available for allotment. The landlord also made an application for release on the premise that the accommodation was vacant. In this view of the matter, therefore, it is obvious that the question of vacancy was not at issue at all between the parties and it was admitted on all sides that it was vacant and available for allotment. The landlord also made an application for release on the premise that the accommodation was vacant. In this view of the matter, therefore, it is obvious that the question of vacancy was not at issue at all between the parties and it was admitted on all sides that it was vacant and available for allotment. Learned counsel, however, laid emphasis that it is incumbent upon the Rent Control and Eviction Officer to record a finding of vacancy before proceeding to decide the allotment application or release application. For this he placed reliance on Surendra Kumar v. Ill Addl. District Judge, Nainital, 1978 ARC 445 where Hon'ble K. C. Agarwal, J. held that no order of allotment can be passed unless there is a finding of vacancy. However, a perusal of the facts of the case will go to show that there was a controversy raised about the status in which the tenant was occupying the premises in dispute. In that case, the petitioner was the owner of the premises which was claimed to be in possession of one B. D. Sharma as his guest and there was a serious controversy between the parties as to whether B. D. Sharma was an unauthorised occupator whether he was occupying the premises as a guest of the landlord. This controversy had not been decided. It was under these circumstances that the court held that without first determining the question of vacancy, the Rent Control and Eviction Officer could not proceed to allot the accommodation. The Court also observed in paragraph 9 of the Report that an order of allotment cannot be made in respect of a premises unless a vacancy is found. This case, therefore, cannot be of any help to the petitioner. In a case where there is no controversy about the vacancy of accommodation, the principle laid down in that decision cannot be applied. 9. Learned Counsel for the petitioner then submitted that in exercise of powers conferred under section 41, the State Government has framed rules for carrying out the purpose of the Act. For the purpose of ascertaining the vacancy, rule 8 has been framed according to which it is necessary that the vacancy should be declared. 9. Learned Counsel for the petitioner then submitted that in exercise of powers conferred under section 41, the State Government has framed rules for carrying out the purpose of the Act. For the purpose of ascertaining the vacancy, rule 8 has been framed according to which it is necessary that the vacancy should be declared. The rule lays down that inspection of the building alleged to be vacant shall be made by the Inspector in presence of the landlord and the tenant or any other occupant and the necessary facts will be elicited by the Inspector from at least two respectable persons in the locality. The rule then lays down and the conclusion of the report of the Inspector shall be posted on the notice board of the office of the District Magistrate for the information of the general public". From this part of the rule, it is sought to be contended that the conclusion has to be drawn by the District Magistrate as to the vacancy or otherwise of the building and this is what is commonly called declaration of vacancy. Learned counsel for the respondent however, submitted that the Act and the Rules do not require, any formal declaration of vacancy but only a public notice is contemplated under the rules. According to him the gist of the report is to be posted on the notice board and this does not require any elaborate enquiry by the District Magistrate. 10. I find myself unable to agree with this submission. What Rule 8 (2) requires is a conclusion of the Inspection report to be placed on the notice board. The conclusion can not be equated with the gist of the report which can be a mere ministerial act. 'Conclusion' means application of mind to the facts stated in the inspection report and certain results drawn therefrom. It is, therefore, necessary that the District Magistrate ought to apply his mind to the report and come to the conclusion as to whether a particular building is vacant or not. This conclusion must be placed on a notice board for being brought to the notice of the general public to enable them to apply for allotment thereof. It is, therefore, necessary that such a procedure must be followed. In the instant case, admittedly this was not done. The question is whether this lapse will render the entire proceedings illegal ? This conclusion must be placed on a notice board for being brought to the notice of the general public to enable them to apply for allotment thereof. It is, therefore, necessary that such a procedure must be followed. In the instant case, admittedly this was not done. The question is whether this lapse will render the entire proceedings illegal ? In my view, it will be taking too drastic a view of the matter particularly when the parties were not at all at issue on the question of vacancy. It may be an irregularity or even a serious lapse but despite that it was not likely to cause any prejudice to the parties since it was admitted on all hands that the building was vacant. I hold accordingly. Coming now to the second aspect as to whether it was necessary to give any opportunity to the petitioner of being heard and also to consider the petitioner's need as against the need of the landlord. The question need not detain us at all as the matter is squarely covered by a Full Bench decision of this court in Talib Hussain v. I Addl. District Judge, Nainital, 1985 AWC 1001 . In that case, it was held that the prospective tenant has no right of being heard. In para 26 of the Report, the court observed as under "The right of a prospective allotte is not an absolute right. It is contingent upon, firstly the accommodation being vacant, and secondly the building being available for allotment." 11. The argument that the rejection of the allottee's application entails serious evil consequences and consequently on the principle of audi alteram partem the prospective allottee is entitled to be heard even in an application under section 16 (1) (b) was rejected outright holding that the principle of audi alteram partem pre supposes the existence of some right or interest in the subject matter of the lis. Having held that the prospective allottee has no right or claim against the landlord nor any interest in the accommodation in dispute, he had no right to be heard in opposition to the application for release filed by the landlord even on the above principle. Thus looking from any point of view I find no merit in the petition. 12. Having held that the prospective allottee has no right or claim against the landlord nor any interest in the accommodation in dispute, he had no right to be heard in opposition to the application for release filed by the landlord even on the above principle. Thus looking from any point of view I find no merit in the petition. 12. Even if for the sake of argument, it may be accepted that recording of a finding of vacancy was essential and no consideration of the release application could be made without recording such a finding, in my opinion, the present is not a fit case where interference by this court by invoking its extraordinary jurisdiction under Article 226 was called for. The petitioner did not suffer any prejudice on account of lapse on the part of the Rent Control and Eviction Officer in recording a finding of vacancy and as such also no ground for interference has been made out. In the result, the petition fails and is accordingly dismissed with costs. Petition dismissed.