JUDGMENT J.C. Gupta, J.
1. By means of this writ petition, the petitioner has challenged the order dated 27.9.94 passed by Vth Addl. District Judge. Allahabad-respondent No. 1 whereby revisional court has remanded the case to the Rent Control and Eviction Officer for a fresh decision in accordance with law.
2. The dispute relates to a portion of first floor of house No. 91 Sadar Bazar, Allahabad. The said portion was in occupation of erstwhile tenant Shri S. K. Jha. Application for allotment was made by the petitioner alleging that the disputed portion had fallen vacant on account of transfer of Shri S. K. Jha to Moradabad and of the same being left in unauthorized occupation of Shri G. N. Jha. After having the report from the Rent Control Inspector and on consideration of evidence, the Rent Control and Eviction Officer by the order dated 12.10,87 declared vacancy. It further appears that after declaration of vacancy, the landlord-respondent No. 3 made an application for the release of the disputed portion in his favour whereas Shri G. N. Jha and the petitioner applied for allotment- By the order dated 25.8.88. the release application of the landlord-respondent No. 3 was rejected by the the Rent Control and Eviction Officer and simultaneously by the same order the premises in question was allotted in favour of the petitioner. Aggrieved by the said order the landlord-respondent No. 3 filed Rent Control Revision No. 175 of 1988 which has been allowed by the revisional court by the impugned order dated 27.9.94 and the case has been remanded to the Rent Control and Eviction Officer to decide the case afresh.
3. Learned counsel for the parties have been heard at length and record has also been perused.
4. A perusal of the impugned order of the revisional court would indicate that the order of the Rent Control and Eviction Officer rejecting the landlord's application for release and making allotment order in favour of the petitioner has been set aside, mainly on three grounds, namely. that the order of the Rent Control and Eviction Officer was liable to be set aside under Section 18 (b) and 18 (c) of the Act on account of non-compliance of Rule 8 (2) : that there has been no compliance of Rule 9 (3) and the order of allotment has been made simultaneously while rejecting release application without giving any opportunity to the landlord and that to the disputed portion provisions of Section 17 (2) of the Act were applicable and. therefore, no allotment could have been made Without giving any opportunity to the landlord to nominate a person of his choice. It has further been found by the revisional court that the order of allotment has been made in favour of the petitioner without giving any decision on the objections filed on behalf of the landlord.
5. From perusal of the record, it would appear that after when release application had been made by the landlord, the Rent Control and Eviction Officer directed the Rent Control Inspector to inspect the portion in dispute. Pursuant to this direction, report dated 26.11.1987 was submitted against which the landlord filed objections stating that the said report was wholly ex parte and was given in collusion with the petitioner. The said objection was supported by the affidavit of the landlord wherein it was specifically stated that the said report was collusive and ex parte without any notice to the landlord. It was also stated that the Rent Control Inspector has wrongly mentioned in his report that the landlord and his family members resided in building No. 92 Sadar Bazar, Allahabad. The landlord came with a specific case that he did not own or possess any other house except house No. 91 Sadar Bazar, Allahabad and house No 92 belonged to his brother Tarkeshwar Nath. He also filed some documents for showing that hts residential address was 91 Sadar Bazar. Allahabad, and he had his ration card from the said building. The Rent Control and Eviction Officer did not consider the said objections of the landlord and the release application of the landlord was rejected mainly on the basis of the report of the Rent Control Inspector dated 26.11.1987 though in the order. a reference has been made to the effect that the landlord has filed objections against the report of the Rent Control Inspector. The order of Rent Control and Eviction Officer thus stood vitiated on account of the fact that he placed reliance on an ex parte report of the Rent Control Inspector without considering the objections of the landlord filed against the said report. Even on the basis of the observations made by the Rent Control Inspector in his report that at the time of inspection, the daughters of the landlord were found sitting in the Verandah of adjoining house No. 92. it could not be held conclusively that the landlord or his family had been residing in the adjoining building of his brother, as of right. In law, a landlord cannot be compelled to live in the house of his brother, in which he has no right. title or interest. The release application of the landlord was thus rejected on wholly irrelevant and extraneous matters. It was incumbent upon the Rent Control and Eviction Officer to consider the objections of the landlord and thereafter to record a positive finding as to whether the landlord and his family members have been residing as of right in his brother's house No. 92 Sadar Bazar, Allahabad. Benefit of Section 17 (2) could be denied, only if it had been proved as a fact that the landloid was not residing in the other portion of the building and that the accommodation in question does not form part of that building, a portion of which is alleged to be in use and occupation of the landlord.
6. In the present case, undlsputedly the application for release made by the landlord was rejected by the Rent Control and Eviction Officer by the order dated 25.8.88 and on the same day and by the same order, the premises in question was allotted to the petitioner. The revisional court has held that after the rejection of the release application, the landlord was entitled to a notice under Rule 9 (3) regarding consideration of the matter of allotment and since no such notice was given in the instant case and there has been no time gap between the order passed on the application for release and allotment, both the orders having been made simultaneously in one and the same order, there has been no compliance of Rule 9 (3) and accordingly the order of allotment was not valid. It has been argued by the petitioner's counsel that since the landlord had participated in the proceedings before the declaration of vacancy, he had full knowledge about the applicants who had applied for allotment and. therefore, no prejudice was caused to the landlord and accordingly the order of allotment could not be cancelled on account of non-compliance of Rule 9 (3). The landlord-respondent's counsel, however, placing reliance on the decisions in Smt. Parveen Azad v. 1st Addl. District Judge, Badaun and others, 1997 (2) ARC 448 and Nem Chandra Jain and others v. IXth Addl. District Judge, Meemt and others, 1998 (2) ARC 632. argued that order of allotment cannot be made at the same time while rejecting release application.
7. In the case of Smt. Parveen Azad (supra). it was held that the Rent Control and Eviction Officer, after declaration of vacancy has to consider the release application independently without giving any right to the prospective allottee to contest the release application. It is only after the application of the landlord is rejected, the Rent Control and Eviction Officer is to consider the allotment applications. In case the release application is rejected, he should fix a date for hearing of allotment applications for which a notice is to be given to the landlord as provided under Rule 9 (3) of the Rules. The landlord can raise his objections in regard to the allotment applications only after his release application is rejected and that decision he can take only after coming to know of the fate of his release application. It was specifically held "the application for release of the building and allotment applications cannot be considered simultaneously. The two matters are totally independent. The Rent Control and Eviction Officer, therefore, after release application filed by the landlord is rejected, must fix a date for hearing the allotment applications."
8. Similarly, the view in Nem Chandra Jain (supra) was that after rejection of release application filed by the landlord, a fresh date has to be fixed for disposal of applications for allotment and there must be a time gap between the date of rejection of the application for release and the date of hearing of applications for allotment. Same view was expressed in Smt. Madhur Lata alias Nudhu Lata v. Addl. District Judge (Uttarakhand cases) Dehradoon and another. 1997 (2) ARC 309.
9, In view of the above settled legal position, the impugned order of allotment was not sustainable as the same was made in the same order by which the landlord's application for release was rejected which obviously denied the landlord of an opportunity of being heard in the matter of consideration of applications for allotment. Thus, this Court finds that the revisional court was fully justified in setting aside the order of allotment made in favour of the petitioner.
10. It is further borne out from the bare perusal of the order of the Rent Control and Eviction Officer that the petitioner who was only a prospective allottee, had participated in the proceedings relating to the release application and had even filed affidavit. Not only this, even his counsel was heard at the stage of consideration of release application. The procedure adopted by the Rent Control and Eviction Officer was in total disregard of the Full Bench decision of this Court in Talaib Hasan and another v. 1st Addl District Judge, Nainital. 1986 ID ARC 1 (FBI which has also been approved by the Apex Court in Vijai Kumar Sonkar v. Incharge District Judge and another. 1995 (2) ARC I SC, On the premises of these two decisions, it is now well-settled that the matter relating to consideration of application of release under Section 16 (1) (b) of the Act is entirely between the landlord and the District Magistrate and no third person has any right to be heard in such proceedings. While considering the release application, prospective allottee cannot be allowed to participate in such proceedings nor could he be heard even on the principle of audi alteram partem. In Ved Prakash v. VIIIth Addl. District Judge, Ghaziabad and others, 1993 (1) ARC 442, a single Judge of this Court even went on to hold that the mere fact that subsequent to the rejection of an application for release the Rent Control and Eviction Officer passed an order of allotment in favour of a prospective allottee, such an order of allotment can be of no avail so as to vest the prospective allottee with a right of being heard in the matter of release of an accommodation contemplated under Section 16 of the Act which is taken up in revision under Section 18 of the Act. The lis between the District Magistrate representing the State and the landlord so far as the matter of release of the accommodation declared to be vacant is concerned becomes pending when the revising authority entertains the revision against the order rejecting the application for release and in this matter the prospective allottee cannot be deemed to be entitled to have any right of being heard and his position remains the same as it was prior to the passing of the order of allotment. Since in the present case the prospective allottee, the petitioner was allowed to participate in the proceeding relating to the release application and was even heard, the order of the Rent Control and Eviction Officer rejecting the release application stood vitiated on account of this jurisdictional error.
11. The revlsional court was thus fully Justified and has taken a correct view in selling aside the order of Rent Control and Eviction Officer rejecting the landlord's application for release and in directing the authority concerned to decide the matter afresh. Once the order rejecting the release application has been found to be invalid and the authority concerned has been directed to decide the release application afresh, it would follow that the release application of the landlord is stilt pending consideration and it is well-settled law that no order of allotment can be made till the release application is pending. In Shri Swaroop Narain Srivastava v. IVth Addl. District Judge, JT 1994 (5) SC 221. the Hon'ble Supreme Court held that it is no where provided in the Act or in the Rules that an application for allotment of a vacant building could be considered in preference to the application made for release by the landlord. On the other hand, Rule 13 which provides the procedure for consideration of the application for release of a vacant building by the landlord by its sub-rule (4] requires that the landlord's application for release shall, as far as possible, be decided within one month from the date of its presentation and no allotment in respect of a building covered by such an application shall be made unless such an application has been rejected. Same view was expressed in Patwardhan Singh v. District Judge. Kanpur Nagar and others, 1998 (2) AWC 1181.
12. In the present case, once the order of the Rent Control and Eviction Officer rejecting the landlord's application for release has been found to be illegal and invalid and the case has been remanded for a de novo consideration of the release application, the order of allotment made in favour of the petitioner also was not sustainable as the order of allotment could only be made after when the application for release made by respondent No. 3 is finally decided by the Rent Control and Eviction Officer in pursuance of the order of remand made by the revisional court.
13. However, having regard to the fact that the petitioner has been in occupation of the premises in question for more than 10 years in pursuance of the order of allotment made in his favour, in the circumstances of the case, this Court feels expedient in the interest of justice to direct that until the release application of the landlord is finally decided by the Rent Control and Eviction Officer in pursuance of the order of remand of the revisional court, the petitioner shall not be dispossessed from the premises in question. If ultimately the release application is allowed or the order of allotment is made in favour of any other person than the petitioner, the petitioner may be dispossessed in accordance with law. At the same time, the Rent Control and Eviction Officer is further directed to decide the matter finally within a period of two months from the date a certified copy of this order is produced before him.
14. With the above observations and directions this writ petition is dismissed with no order as to costs.