JUDGMENT S.U. Khan, J.
1. This is landlord's writ petition.
2. Chandra Prakash Gupta has filed impleadment application for being impleaded/substituted at the place of sole petitioner landlord on the ground that the shop in dispute has come in share of the applicant through decree passed in Original Suit No. 204 of 1990 on the basis of compromise. True copy of the decree has been annexed along with impleadment application. There is no objection to the said impleadment application hence the said application is allowed. Let the applicant be impleaded as petitioner No. 2 in the writ petition.
3. The matter relates to allotment of the shop in dispute. Respondent No. 3--Moin Uddeen since deceased and survived by legal representatives filed application before R.C. and E.O., Bulandshahr for allotment of the shop in dispute on the ground that it was vacant. R.C. and E.O. directed R.C.I, to inspect the shop in dispute and submit the report, R.C.I, submitted his report on 18.12.1978 stating therein that the shop was vacant. Thereafter it was declared to be vacant by R.C. and E.O. on 23.12.1978. Thereafter notices were issued to the petitioner No. 1 the then landlord and were shown to have been served through refusal. The notice was sent through registered post. Thereafter R.C. and E.O. on 8.1.1979 allotted the shop in dispute to respondent No. 3. Thereafter possession was taken by respondent No. 3 through police force on 19.1.1979. Thereafter petitioner No. 1 against order dated 8.1.1979 filed revision being Rent Control Revision No. 11 of 1979. Revision was allowed by IVth A.D.J., Bulandshahr against which writ petition was filed in this Court being Writ Petition No. 6862 of 1979. One of the points involved in the revision as well as earlier writ petition was that at the time of delivery of possession to respondent No. 3 the shop was without any roof hence it was beyond the purview of U. P. Rent Regulation Act (U. P. Act No. 13 of 1972). The aforesaid writ petition was allowed on 3.10.1980. Copy of the said judgment is Annexure-6 to the writ petition. Through judgment dated 3.10.1980 passed in the earlier writ petition, the matter was remanded to the revisional court to decide as to whether on the date of allotment shop in dispute was having roof or not. Second point which was directed to be decided was as to whether statutory notice was given to the landlord or not before allotment. After remand the revisional court decided the revision on 29.8.1984.
4. Revisional court held that notice was served upon landlord and building was having roof on 8.1.1979 when it was allotted. The said order of the revisional court as well as order of allotment passed by R.C. and E.O. dated 8.1.1979 are under challenge in this writ petition.
5. In the earlier judgment of this Court dated 3.10.1980 it was held that notice under Rule 9(3) of the Rules framed under the Act was mandatory. Through the said judgment matter was remanded to the District Judge to decide as to whether notice under the said rule, i.e., notice before allotment order was served upon the landlord or not. In the said judgment nothing was said regarding mandatory character of the notice before inspection and before declaration of vacancy. The said judgment was delivered in the year 1980. Thereafter Supreme Court in the case of Yogendra Tewari, 1984 and Ganpat Roy, 1985 held that notices at both the occasions, i.e., before inspection under Rule 8(2) and before declaration of vacancy were mandatory. Relevant paragraph of Yogendra Tewari v. D.J. 1984 (2) ARC 7, is quoted below :
Para 5.--As vacancy, actual, expect 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 has the duty to hear. There must be an impartial objective assessment of all the pros and cons of the case after due hearing of the parties concerned.
6. Similarly in Ganpat Roy v. A.D.M. , it has been held that before declaring vacancy it is necessary to serve notice upon landlord.
7. In the instant case, admittedly neither any notice was served before inspection nor before declaring vacancy. The allotment order is therefore, liable to be set aside on this ground alone. I have considered this aspect in detail in the following authorities :
(1) R. L. Poddar v. A.D.J. 2003 (2) ARC 629 (2) C. K. Nagarkar v. A.D.J. 2004 (2) ARC 349, and (3) Kusum Lata Yadav v. A.D.J. 2005 (1) AWC 349 : 2004 (2) ARC 789.
8. If vacancy declaration order is illegal then the consequent allotment order is also illegal. The Supreme Court in Achal Mishra v. R.S. Singh 2005 (1) ARC 877, has held that in revision against allotment order, order declaring vacancy can also be challenged. On the principles of Section 105, Transfer of Property Act invalidity of vacancy declaration order can be made a ground to challenge the release order or allotment order.
9. It is true that in case a point is decided in a remand order then the authority or the Court deciding the matter after remand will have to take the said decision as correct even though the said point may have subsequently been decided by the Supreme Court otherwise in some other case. In this regard reference may be made to Vallapally Plantations Pvt. Ltd v. State of Kerala . However, in the instant case while remanding the matter through judgment and order dated 8.10.1980 High Court did not decide that it was not necessary to issue notice to the landlord before inspection and before declaration of vacancy. In fact High Court did not say anything regarding requirement of notice at that stage. In view of this, this Court at this juncture is authorized to take into consideration the subsequent judgments of the Supreme Court in Yogendra Tewari (supra) and Ganpat Roy (supra). In this regard it is also important to note that in 2002 (2) ARC 434 it has been held that non-service of notice before inspection under Rule 8(2) vitiates the entire proceedings and subsequent service of notice does not cure the defect.
10. There is one more aspect to be looked into in this case. In the allotment order dated 8.1.1979 no rent was fixed. According to Section 16 (9) of the Act while making an order of allotment, allottee shall be required to pay to the landlord an advance equivalent to one month's presumptive rent and on his failure to make or offer the payment within a week thereof allotment order should -be rescinded. By virtue of definition of lease given under Section 105, Transfer of Property Act, there cannot be a lease without rent. This point has also been decided by me in the aforesaid authorities of R. L. Poddar, C. K. Nagarkar and K. L. Yadav (supra).
11. Accordingly, writ petition is allowed. Impugned order of allotment dated 8.1.1979 and the order of District Judge dated 28.9.1984, are set aside. As allotment order has been set aside hence by virtue of Section 18(3) of the Act petitioner is entitled to possession. In this regard petitioner may file application before R.C. and E.O. However, as no one has appeared on behalf of the tenant-respondent hence before passing order of delivery of possession on the application of the landlord which may be filed in pursuance of this judgment, R.C. and E.O. shall ensure service of notice upon the tenant. The tenant shall not be dispossessed before expiry of three weeks from the date of service of notice upon him.
12. As no rent was fixed by R.C. and E.O. hence the tenant is enjoying the property since the date on which she obtained possession, i.e., 19.1.1979. For this period she is required to pay to the landlords-petitioners damages for use and occupation at the rate of Rs. 500 per month. This amount may be recovered under Rule 24(3) of the Rules framed under the Act. For the said purpose certified copy of this judgment shall be treated to be certificate of recovery in Form G under Rule 24(2).