Judgment : SUDHIR Narain, J. 1. The petitioner have challenged the order dated 1542-1995 passed by respondent No. 1 whereby he allowed the revision filed by the landlord respondent No. 2 and set aside the allotment order dated 24- 4-1992 passed in favour of the petitioners. 2. THE facts, in brief, are that respondent No. 2 is the owner and landlord of House No. 194-A, Kashyap Kothi. Macnair Road, Bareilly. He purchased this disputed property from the erstwhile owner by a registered sale-deed dated 23-4-1990. One Ravi Pandey and Sushma Singh filed application for allotment of the disputed house on the allegation that one 'samita Tent House' was its tenant. THE tenant vacated the house and the landlord has put his lock on the disputed house. THE Rent Control and Eviction Officer directed the Rent Control Inspector to inspect the premises in question. On 3rd May, 1991 the Rent Control Inspector is alleged to have inspected the premises in question. He found that the disputed house was looked. He took the statements of one Sri Nathoo Lal and Moti Lal Vaishya who informed him that the disputed house was under the tenancy of one Samita Tent House and they used to keep their goods in it. They vacated the house in question some time ago and handed over its vacant possession to the landlord. THE Rent Control Inspector submitted a report on 30th May, 1991 stating that the accommodation is in occupation of the landlord but it is locked. THE landlord was living outside and his address was Katras Road, Dhanbad, Bihar. After obtaining the report the Rent Control and Eviction Officer sent a notice to respondent No. 2 by registered post. The notice was returned with the remark "addressee out of station". The Rent Control and Eviction Officer relying solely upon the report of the Rent Control Inspector declared the Accommodation as vacant by his order dated 4th July, 1991. He took the view that the notice was sent but it has come with the remark that the addressee is out of station but he appeals to have deliberately not received the notice. Respondent No. 2 filed an objection against declaration of vacancy of 1-8-1991. He took the view that the notice was sent but it has come with the remark that the addressee is out of station but he appeals to have deliberately not received the notice. Respondent No. 2 filed an objection against declaration of vacancy of 1-8-1991. He also filed an application dated 28-1991 to recall the order dated 4th July, 1991 whereby the vacancy was declared and to give him opportunity to lead evidence to show that there was no vacancy. It was stated that the accommodation in question was never let out to any person known as Samta Tent House. It was in his occupation and he had purchased it for his residential purposes and to stay whenever ne comes from Dhanbad to Bareilly. 3. THE Rent Control and Eviction Officer did not pass any order on the ap plication of the petitioner dated 2nd August, 1991. On the other hand he received affidavit of one Satish Kumar and Sri Raj Kumar dated 6-8-1991 wherein they asserted that one Samita Tent House was tenant of the disputed accommodation and on its vacation by it, the landlord occupied the same and it should be deemed as vacant under Section 12 of the Act. 4. ON 6th April, 1992 the petitioner applied for allotment of the premises in question. ON 24th April, 1992 the Rent Control and Eviction Officer relying upon the contents of affidavit of Satish Kumar and Sri Ram Kumar that one Samta Tent House was tenant and after its vacation it was handed over to the landlord-respondent No. 2 and taking into consideration the fact that as Bhartiya Janta Party, Bareilly has no other accommodation for its office purposes, allotted the same to the petitioners by the same order. Respondent No. 2 aggrieved by this order filed Revision No. 46 of 1992. Respondents Nos. 3 and 4 also filed revision jointly being Revision No. 54 of 1992 in the court of District Judge, Bareilly challenging the order of allotment dated 24-4-1992. Respondent No. 1 allowed the revision vide his order dated 15- 12-1995 and set aside the allotment order on the finding that it has been passed in clear violation of the law. The petitioner has challenged this order in the present writ petition. 5. Respondent No. 1 allowed the revision vide his order dated 15- 12-1995 and set aside the allotment order on the finding that it has been passed in clear violation of the law. The petitioner has challenged this order in the present writ petition. 5. LEARNED counsel for the petitioner submitted that respondent No. 1 has set aside the allotment order on the ground that the landlord-Respondent No. 2 was not given any notice before the declaration of vacancy but after the declaration of vacancy the landlord himself filed an objection against the vacancy and his objection having been considered, he cannot make any grievance that the order of vacancy was passed without affording opportunity of hearing. He has placed reliance upon Rajendra Singh v. District Judge, Kanpur, 1986 (1) ARC 116, wherein it was held that when a tenant participates in proceedings for allotment and had opportunity to file objection the mere non-compliance of Rule 8 will be of no consequence. 6. IN the present case the order of vacancy was passed on 4th July, 1991 by the Rent Control and Eviction Officer solely on the basis of the report of the Rent Control Inspector dated 30-5-1991 wherein he had stated that the house in question was locked and was reported to be in possession of the landlord-respondent No. 2. The two witnesses alleged to be belonging to the locality reported him that some tenant known as Samita Tent House was tenant and their gools were kept in the house but they had vacated it and handed over possession to the landlord. There was no material to indicate as to who was proprietor of Samita Tent House. Particulars of Samita Tent House were not given. The notice was sent to respondent No. 2 by registered post but it was returned with the remark 'addressee out of station. ' The rent Control and Eviction Officer still took the view that the notice appears to have been refused and it could have been taken by the members of his family. Once the notice has been returned with the remark that the addressee is out of station it could not have been taken to have been served. ' The rent Control and Eviction Officer still took the view that the notice appears to have been refused and it could have been taken by the members of his family. Once the notice has been returned with the remark that the addressee is out of station it could not have been taken to have been served. Respondent No. 2 filed an application dated 2nd August, 1991 that he had no knowledge of the proceedings and the order declaring vacancy dated 4th July, 1991 be recalled and he should be given opportunity to lead evidence. He also filed another objection that there was no tenant in the name of Samita Tent House and question of his letting to it or vacation by Samita Tent House did not arise. He had purchased the property on 31-10-1990 as he used to come from Bihar for his business purpose. 7. THE rent Control and Eviction Officer did not pass any order recalling the order of vacancy dated 4th July, 1991. Respondent No. 2 was thus not afforded any opportunity to lead the evidence. On the other hand he appears to have accepted the affidavit dated 6th August, 1991 filed by one Raj Kumar and Satish Kumar. He did not give any opportunity to respondent No. 2 to file any counter affidavit to it. On 24th April, 1992 he held that the accommodation in question was vacant as it was in possession of one Samita Tent House and by the same order he allotted the accommodation in question in favour of the petitioner who had applied for allotment only 18 days before the allotment order was passed. THE Rent Control and Eviction Officer should have first recalled the order dated 4th July, 1991 and there after should have granted opportunity to lead evidence to respondent No. 2. When he passed the order declaring vacancy on 4th July, 1991 the affidavit of Raj Kumar and Satish Kumar had not been filed. 8. THE question of vacancy is a jurisdictional fact. When he passed the order declaring vacancy on 4th July, 1991 the affidavit of Raj Kumar and Satish Kumar had not been filed. 8. THE question of vacancy is a jurisdictional fact. In Yogendra Tiwari v. District Judge, Gorakhpur and others, 1984 (2) ARC 7, the Supreme Court observed as follows : "as vacancy, actually, accepted or deemed, is a jurisdictional fact for the making of an order of allotment under Section 16 (1) (a) or for an order of release under clause (b) thereof, the District Magistrate must follow the procedure prescribed under the Act and the Rules framed thereunder. Even in the absence of these provisions viz. proviso to Section 16 (1) and Rules 8 (2) and 9 (3) of the Rules framed under Section 41 of the Act, the principle of audi alteram partem would clearly be applicable. THE District Magistrate in making an order of allotment under clause (a) or an order of release under clause (b) of Section 16 (1) clearly exercises a quasi judicial function and therefore he is duty bound to hear. " The question for consideration before the Rent Control and Eviction Officer was as to whether the accommodation in question was ever let out to any tenant known as Samita Tent House. There was no documentary evidence to establish this fact. There was no entry in the municipal record to indicate that Samita Tent House was its tenant nor any other documentary evidence was produced to establish that it was occupied by Samita Tent House and who was its proprietor. As no particulars of the proprietor of Samita Tent House was ever given by any per son, the notice was not given to Samita Tent House. The Rent Control Inspector relied upon the two witnesses alleged to have made statement before him. They never filed affidavit before the Rent Control and Eviction Officer, Sri Satish Kumar and Raj Kumar who were applicants for allotment they are alleged to have filed affidavit stating that Samita Tent House was a tenant. They had not indicated as to when it was let out and when it was vacated and what was their source of knowledge. 9. RESPONDENT No. 2 had purchased the property only on 23rd April, 1990 and obtained its possession. They had not indicated as to when it was let out and when it was vacated and what was their source of knowledge. 9. RESPONDENT No. 2 had purchased the property only on 23rd April, 1990 and obtained its possession. He alleged in his objection that on account of business purposes he is to live at Dhanbad and he was purchased the house for residential purposes. It was found by the Rent Control Inspector that respondent No. 2 was in its occupation and he had put his lock on it. The burden of proof was upon the applicant to prove that it was let out to Samita Tent House and it was vacated by it and respondent No. 2 should have been given opportunity to rebut the evidence adduced in the case. RESPONDENT No. 2 filed application to recall the order dated 4th July, 1991 but no final order was passed by the Rent Control and Eviction Officer on the said application. On the other hand he again held that there was vacancy vide order dated 24-4-1992 and by the same order he allotted the accommodation in favour of the petitioner. 10. LEARNED counsel for the petitioner urged that it. was open to respondent No. 2 to file counter affidavit to the affidavit filed by Satish Kumar and Raj Kumar and if he had not filed any counter affidavit the facts stated by them in their affidavit could be accepted by the Rent Control and Eviction Officer. It may be noticed that respondent No. 2 had filed an application for recalling the order declaring vacancy dated 4th July, 1991 and also prayed that he should be given opportunity to lead evidence. The Rent Control and Eviction Officer had not passed any order on the said application. It has not been shown that the copies of these affidavits were ever served upon respondent No. 2 and they were given opportunity to rebut the contents of those affidavits. Even otherwise the Rent Control and Eviction Officer was to scrutinise the contents of the affidavits after taking into consideration various circumstances and the facts and should have first recorded a finding as to whether the accommodation was ever let out to the tenant known as Samita Tent House and when it was let out and when it was vacated. The Rent Control and Eviction Officer had to give notice to the landlord twice. The Rent Control and Eviction Officer had to give notice to the landlord twice. First, when he determined that the occupation in this possession as vacant for the purposes of allotment and second, after he comes to the conclusion that the accommodation is vacant, of the date fixed for consideration of allotment application as provided under Rule 9 (3) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. In Dr. (Smt.) Keshav Devi v. Girdhari Lal Pahwa and others, 1987 (1) ARC 6, it was held that Rule 9 (3) requires service of notice and intimation of the date fixed for considering the allotment of the premises which may have fallen vacant and likely to fall vacant. The object and purpose of notice to the landlord regarding date fixed for allotment is to enable him to file his objection, if any, to the allotment, proceedings or to make application for release of the premises as contemplated by Section 16 (1) (a) of the Act or to nominated the tenant of his choice and if he is in occupation of the portion of the building an allotment made without giving notice as required under Rule 9 (3) of the Act would be rendered illegal. 11. THE Rent Control and Eviction Officer had not passed any order on the application filed by respondent No. 2 to recall the order declaring the vacancy. In case he came to the conclusion that the application of respondent No. 2 was liable to be rejected on the finding that it is a vacant he should have further fixed a date for considering the allotment applications and notice of such date should have been given to the landlord. 12. LEARNED counsel for the petitioner urged that the Rent Control and Eviction Officer had given notice of the date fixed in the case but respondent No. 2 did not appear. Without going into controversy as to whether respondent No. 2 was again served with the notice, it is clear that the Rent Control and Eviction Officer passed order while deciding the question of vacancy by his order dated 24-4-1992 and by the same order he has passed allotment order in favour of the petitioner. This procedure adopted by him was wholly illegal and rendered the allotment order invalid. This procedure adopted by him was wholly illegal and rendered the allotment order invalid. In this case it may further be noticed that the allotment order was passed on 24-4-1992 and on 26-4- 1992 the petitioner took possession in violation of Rule 14 of the Rules. An allottee is entitled to take possession of the accommodation allotted to him only in accordance with Rule 14 of the Rules framed under the Act which provides that an order in Form C shall be served upon the persons or person found in unauthorised occupation of the building directing him to vacate the same and deliver vacant possession thereof to the person named in the order within such period as may be specified in the order which shall in no case be less than a week from the date of service of order upon him and on his failure to comply with the order within the time allowed. The District Magistrate shall issue an order to the Officer-in-charge of the Police Station in Form D directing him to get the building vacated and put the allottee or the landlord in possession of the building. 13. ADMITTEDLY no notice in Form C was served upon respondent No. 2. The possession was taken within two days from the date of allotment order. No person is entitled however he may be high in status to obtain possession forcibly in violation of Rule 14. A landlord is entitled to get one week time either to submit to the allotment order or he can file objection or take legal remedy against the allotment order. In case the possession is obtained in violation of Rule 14 of the Rules framed under the Act, that amounts to house grabbing as held in Jai Prakash Vashisht v. Additional District Magistrate (E) (Delegated Authority), Meerut and others 1995 (1) ARC 476 : 1995 (1) JCLR 575 (All), Smt. Chetan Atma Govil v. Rent Control and Eviction Officer, Saharanpur and others, 1995 (1) ARC 514 and Mumtaz Ahmad v. Vlth Additional District Judge, Kanpur Nagar and others, 1995 (1) ARC 552 : 1995 (1) JCLR 594 (All ). 14. AS the petitioners have taken possession within two days from the date of passing of the allotment order illegally, they are directed to handover the possession to respondent No. 2 within two days. 14. AS the petitioners have taken possession within two days from the date of passing of the allotment order illegally, they are directed to handover the possession to respondent No. 2 within two days. The District Magistrate, Bareilly is directed to get vacated the accommodation from the petitioner and handover its possession to respondent No. 2 within two days from the date this order is produced before him. The writ petition is dismissed with the direction given above. Petition dismissed.