JUDGMENT A.K. Yog, J.
1. The petitioner Rafat Ahmad Jamat Alvi claiming to be the tenant (but branded as an unauthorised occupant by the landlord and prospective allottee-respondent No. 3 respectively) of a part of first floor house No. 808/504 Rajapur, Allahabad, has approached this Court by means of the present petition under Article 226. Constitution of India being aggrieved against the order dated January 3, 2002 (Annexure-1 to the petition), whereby Rent Control and Eviction Officer-1, Allahabad rejected the objections of the occupant petitioner against Rent Control Inspector's Report dated 7.12.2000/Annexure-3 to the petition on the ground of non-compliance of the statutory provisions of Rule 8 (2) by not giving notice and/or obtaining information from occupant petitioner while making spot inspection and further directing that occupant petitioner may submit his objection/evidence, which may be desired, in the Court before the next date fixed, namely, 11,1.2002.
2. It may be noted that concerned Rent Control and Eviction Officer initiated proceedings under Section 16 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972 (for short called 'the Act) on the basis of an application for allotment dated 29.8.2000/Annexure-2 to the petition filed by one Rajesh Umrao respondent No. 2.
3. The allotment application/ Annexure-2 shows that in Clause 15, the applicant Rajesh Umrao has categorically mentioned that petitioner Rafat Ahmad Jamal Alvi was in occupation of first floor portion of house in question. The Inspector's Report dated 17.12.2000 (Annexure-3 to the petition) does not indicate that notice was given by the concerned Inspector to the landlord and/or the occupant.
4. Rule 8 reads :
"(1) The District Magistrate, shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected.
(2) The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should, wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the mean time any objection is received, not before the disposal of such objection.
(3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce."
5. In the case of S.L. Kher v. District Magistrate/Rent Control and Eviction Officer, Nainital and another, 2000 (I) ARC 148, (A.K. Yog. J-), this Court had the occasion to consider said Rule 8 and in para 4 of its judgment noted-
".....Provisions contained in Rule 8 cast obligation on the Rent Control and Eviction Officer to get inspection done after giving notice to the occupant of the accommodation in question. Rule 8 (2) quoted in paragraph 20 of the writ petition shows that Rent Control Inspector ought to have made inspection 'as far as possible' in presence of landlord and tenant or any occupant. There is no explanation as to what effort was made to serve....."
6. Relevant extract of para 6 of the present writ petition, though not happily worded, is reproduced :
".....and no notice were issued to the petitioner and no date for (sic) fixed and no inspection was made in the presence of 2 respectable persons of the locality thus no compliance of Rule 8 (2) made and even he did not disclose who were the local persons. The said report is the table report and has been prepared in league and collusion with the landlord respondent No. 3 and the prospective allottee respondent No. 2 and he did not inspect the extent of the accommodation occupied by the landlord......"
The record of the case, however, clearly establishes that no notice was given to the occupant.
7. The order dated 3.1.2002 passed by the Rent Control and Eviction Officer (Annexure-1 to the petition) indicates that no notice was given to the occupant. Rent Control Inspector's report (Annexure-3 to the writ petition) does not show that the Inspector gave notice to the concerned parties before making spot inspection. The report also does not indicate that requisite information was elicited from 'at least two respectable persons in the locality' as required under Rule 8 (2) framed under the Act.
8. The Inspector's report, on the other hand, contains a vague allegation to the effect that he had gathered information on the basis of information received on local enquiry-without specifying the names of the persons from whom he had allegedly gathered such information.
9. Inspector's report further shows that landlord was throughout present with the Inspector and got certain facts recorded in the said report, which suited the said landlord, namely, occupant had no allotment in his favour and he shall file evidence to support his evidence later and accommodation was an old construction. This casts doubt upon the impartiality of the Inspector who went for spot Inspection.
10. The Rent Control and Eviction Officer was not justified in passing the impugned order dated 3.1.2002 observing that occupant is directed to file his objection/evidence later.
11. The Rent Control and Eviction Officer in his order dated 3.1.2002, also noted that from Rent Control Inspector's report it appeared that Inspector made spot inspection in absence of the occupant (petitioner).
12. Without ascertaining vacancy, Rent Control and Eviction Officer could not proceed further, particularly when the said authority itself noted that Rule 8 (2) was not complied.
13. Ascertainment of vacancy will be jurisdictional fact in as much as concerned Rent Control and Eviction Officer will have no jurisdiction to proceed further if there is no vacancy.
14. There are two other aspects-emerging from the facts of the instant case :
(i) The landlord-respondent No. 3. Gabrilal Alphonse had put in appearance as caveator-applicant by filing caveat application No. 81 of 2001 in which initially the date of the impugned order was typed as 21.12.2001. The same was thereafter corrected as 2.1.2002. The caveat application appears to have been submitted before the Stamp Reporter in this Court on 2nd or 3rd January, 2002. as there is again conspicuous cutting on the front page of the said application and it can be read both 2.1.2002/ 3.1.2002. The date on the postal stamp, as per receipt affixed along with the caveat application, is 22.12.2002. The aforesaid circumstances are enough to cast serious apprehension on the fairness of the proceedings before the Rent Control and Eviction Officer.
(ii) This Court, in another case, considered as to what should be the scope of the proceedings under Section 16 of the Act, when a landlord himself inducted another person as tenant in breach of the provisions of the Act and held that a landlord cannot be permitted to maintain his release application under Section 16 of the Act i.e., avoiding contest under Section 21 of the Act. earn premium out of his own Illegal act and on the other hand put his tenant at a disadvantageous position on the basis of judgment passed by this Court in the case of Nootan Kumar v. Additional District Judge. 1993 (2) AWC 1090 : AIR 1994 All 298 (FB).'
15. Reference be made to the judgment and order dated 23.1.2002 in Writ Petition No. 2907 of 2002, Jagdish v. District Judge, Kanpur Nagar and others.
For ready reference, relevant extract of the said judgment is reproduced :
From the above, it is clear that both the petitioner and the respondent No. 3 colluded with each other, abetted with each other; in 'complicity' to perpetuate 'fraud' on law and their conduct is in clear breach of law. Respondent No. 3 letting out the accommodation and on the other hand petitioner taking kit oil rent in contravention of the mandatory provisions of U. P. Act No. XIII of 1972, both acted in breach of mandatory provisions of law-deliberately failed to discharge their statutory obligation entering into a transaction prohibited by law. Both the parties are guilty of same offence and equally responsible and hence liable to suffer the consequences at par for their act of committing breach of the statutory provisions of the Act.
In fact conduct of landlord is more reprehensible as compared to the tenant. In a transaction like the present, landlord is at a advantage and in a commanding position competent to dictate its terms vis-a-vis a prospective tenant (e.g., charging rent of his choice and exploiting helplessness of the other by not intimating vacancy to the Rent Control and Eviction Officer, deliver possession of the accommodation to a person who has no allotment order in his favour though he has no compulsion and avoiding jurisdiction of the Rent Control and Eviction Officer under Section 16 of the Act and then in future get the accommodation declared vacant by putting forth prospective allottee as 'Proxy' and then take recourse to a less rigorous provision of Section 16 of the Act, where matter is between landlord and Rent Control and Eviction Officer only of release.
.........................Landlord who is equally guilty in the same transaction cannot escape the consequences and shall be liable to suffer in proceedings for allotment under Section 16 of the Act. Release application at his instance is to be ignored. A presumption is to be drawn against him that he did not bona fide or genuinely required the accommodation be released.
In order to strike a balance in equities in a matter where proposition of law laid down by Full Bench decision in the case of Nootan Kumar (supra) is applicable, the accommodation shall be treated 'vacant' and inferred from the admitted 'bundle of facts' of a particular case. A landlord who himself inducted a person as 'Tenant' without complying with the provisions of the Act. acquiescence by conduct and principle of 'estoppel' shall be attracted against him.
In my considered opinion in a case under Section 16 of the Act, if ratio of the case Nootan Kumar, (supra) is attracted, the Rent Control and Eviction Officer will have no option but to proceed with 'allotment' of such accommodation in as much as a 'landlord' disentitles him to seek 'release' of an accommodation let out against the provisions of the Act.
Such a landlord stands disqualified by his conduct to seek relief of release under law. One who himself commits breach of a particular law cannot under principles of equity, complained of breach of said provisions of law by another and Court shall refuse to enforce the provision of the said Act for the benefit of such a defaulter.........................
A landlord guilty of acting in breach of the Act, is guilty of abuse of process of law. He is major gainer in the clandestine deal as compared to the tenant and hence must be placed at par in the same category as the defaulting tenant (called-unauthorised occupant). A tenant branded as unauthorised occupant, cannot be allowed to be dispossessed at the instance of defaulting landlord generally by proxy or by getting prospective allottee as their proxy and then seek release treating the accommodation vacant under Section 16 of the Act avoiding release after contest with the tenant under Section 21 of the Act. Landlord in fact estopped by conduct having acquiesced to let out the accommodation."
16. This Court also noted that Rule 9 (2) of the Rules framed under the Act requiring vacancy to be notified for information of the general public by pasting a copy of the list of the vacancy on the notice board, was not sufficient and adequate to achieve the object. The gap/lacuna in the statutory provision is required to be filled up by requiring the Rent Authority to publish such vacancy in two Newspapers (one Hindi and one English) having wide circulation in the city/District so that all the genuine persons in the general public have due information of the vacancy in question and thus in a real position to submit application for allotment. It shall also help to prevent and check surreptitious proceedings between the landlord vis-a-vis occupant or an out going tenant and sometimes acting in glove with the office of the Rent Control and Eviction Officer rendering solemn object of 'vacancy being notified' a sham exercise in futility.
17. The judicial experience of the Court shows that such proceedings in these matters are by proxy initiated by the landlord in collusion with alleged applicant as prospective allottee and ensuring proceedings through agency of the office of Rent Control and Eviction Officer in a surreptitious manner.
18. The impugned order dated 3.1.2002 cannot be sustained and therefore, quashed. The concerned Rent Control and Eviction Officer is directed to decide the matter afresh in accordance with law after obtaining report from Rent Control Inspector complying Rule 8 (2) of the Rules framed under the Act.
19. It is further directed that District Magistrate shall decide the case himself or transfer this case to an officer other than the one who passed the impugned order dated 3.1.2002. Annexure-1 to the petition, keeping in mind the principles, directions and ratio laid down by the Court in this judgment as well as in the case of Writ Petition No. 2907 of 2002. Jagdish v. District Judge, Kanpur Nagar and others, decided on 23.1.2002, passed in accordance with law after giving opportunity to the parties.
20. The writ petition stands allowed subject to observations and directions made above. No order as to costs.