JUDGMENT J.C. Gupta, J.
1. Heard petitioner's counsel at length and the learned standing counsel and perused the impugned order and the material placed on record.
2. The proceedings relating to vacancy were initiated on an intimation of vacancy given by the landlord. While giving the said intimation-, the landlord, who is an officer in Armed Forces also moved an application for the release of the accommodation in question on the ground that the same was required for the residence use of his children as he had to remain posted on "hard stations". It appears that the said accommodation was ordered to be inspected by the Rent Control Inspector. It is apparent that the Rent Control Inspector did not contact the landlord before submitting the report nor any notice as required under Rule 8 (2) of the rules was served upon the landlord, The release application of the landlord was rejected by the Rent Control Officer without giving any opportunity of hearing to him. No notice as contemplated under Rule 9 (3) of the Rules was also proved to have been served upon the landlord, After rejecting the release application, the Rent Control and Eviction Officer proceeded to make an order of allotment in favour of the petitioner and the petitioner was put into possession of the disputed accommodation. On coming to know of this, the landlord filed revision before the respondent No. 1. The lower revisional court examined the matter thoroughly and also perused the original record including the despatch register kept in the Office of Rent Control Officer and gave a categorical finding that forgery was committed in the despatch register merely with a view to indicate that notice was sent to the landlord. Cogent and convincing reasons have been given by the revisional court while recording the said finding. There is even no finding of the Rent Control and Eviction Officer nor any material has been placed before this Court in this writ petition that the notices as required under law were so served upon the landlord.
3. The question that arises for consideration is as to whether in the circumstances where no notice as required under the Rules is proved to have been served upon the landlord, his application for release could be rejected ex parte and application for allotment of the petitioner could be allowed?
4. Manner of service of notice in the proceedings under the Act is provided in Rule 28, which says that notice shall be served on the person concerned (in this case the landlord) :
(a) by giving or tendering it to such person, or his counsel ; or
(b) by giving or tendering it to any adult member of his family ; or
(c) if no such person is found, by leaving it at his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6 ; or
(d) if none of the means aforesaid is available, by affixing it on some conspicuous part of his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule
6.
5. Copy of the application which was sent by the landlord Sri A.K. Tandon has been annexed as Annexure-I to the writ petition. In this application, the full address of the landlord was given at the top of the said letter. There is nothing on record to indicate that any attempt was made to serve Sri A.K. Tandon personally or by registered post on the said address. As already observed above, neither before the Court below nor before this Court there is any proof of service of notice upon the landlord as contemplated under Rule 28.
6. Rule 8 states that before making any order of allotment of 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, the District Magistrate shall get the same inspected. Sub-rule (2) of Rule 8 then states that such inspection, so far as 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 atleast 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 meantime, any objection is received, not before the disposal of such objection. Sub-rule (3} then lays down that any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce.
7. A perusal of sub-rules (2) and (3) would indicate that principle of natural justice is embodied therein. Before inspection is made under sub-rule (2), the landlord has to be given due notice of the same. Similarly, while considering the objection filed under sub-rule (2), the parties are to be given an opportunity of adducing evidence. This could only be done by giving a notice to the landlord.
8. Rule 9 (3) provides that where an intimation of vacancy has been received under sub-rule (1), the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by pasting a copy of the list of the vacant buildings on the notice board of that office, specifying therein the date on which the question of allotment will be considered. The further requirement of rule is that the District Magistrate shall also issue a notice to the landlord intimating him the date so fixed. On the date so fixed, the District Magistrate shall consider the cases of all applicants registered in the register mentioned in Rule 10 and shall pass an order under Section 16 in accordance with Rules 10 and 11.
9. No authority is required for the proposition that Rule 9 (3) is mandatory which requires information to the landlord of the date fixed for consideration of applications for allotment.
10. Rule 13 (4) also lays down that however an application for release shall be decided, as far as possible, within one month from the date of its presentation, and no allotment in respect of a building covered by an application under this rule shall be made unless such application (release application) has been rejected.
11. In the case of Sri Swaroop Narain Srivastaua v. IVth Additional District Judge and others. JT 1994 (5) SC 221, the Apex Court held that it is nowhere provided in the Act or in the Rules that an application for allotment of a vacant building should be considered in preference to the application made for release of the vacant building 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 it sub-rule (4) requires that landlord's application for release under the rule shall, as far as possible, be decided within one month from the date of its presentation and no allotment in respect of the building covered by an application shall be made unless such application has been rejected and if an allotment is made in contravention of this rule, the same shall be void.
12. In the present case, the proceedings were initiated on the intimation of vacancy sent by the landlord under Rule 9 (3) and the landlord had also admittedly sent application for release along with the said intimation. As already pointed out above, no notice either under Rule 8 (2) or under Rule 9 (3) is proved to have been served upon the landlord. The finding of the revisional court further is that the landlord was not given any opportunity of hearing on the application for release moved by him and the application was rejected ex parte in his absence. The landlord was, therefore, denied the right of hearing and, therefore, in this view of the matter, the Rent Control and Eviction Officer could not have exercised jurisdiction in passing the allotment order in question in favour of the petitioner for the office of the party which incidently was the ruling party of the State. No person howsoever high, he may be, can claim to be above or beyond the reach of law and no special treatment can be accorded to any person and the authority who exercises even quasi-judicial functions are expected to act according to the procedure prescribed in law. Where the mode of performing an act is laid down by statute or rules, it must be performed with that mode or not at all. It was not expected from a responsible officer like the Rent Control Officer to have fallen in the trap of the petitioner and to have allowed interpolations in the despatch register in order to give a colour to the picture that notice as required under law was sent to the landlord. Manipulation in the despatch register could be made but proof of service could not be procured and for that reason, the Rent Control and Eviction Officer cleverly avoided a finding that notice was duly sewed upon the landlord at any point of time during the pendency of the proceedings. The facts and circumstances appearing in the case speak themselves of the fraud committed in the Office of the Rent Control and Eviction Officer to extend a benefit to the petitioner in flagrant violation of the mandatory provisions of law. This Court thus after giving its thoughtful consideration to the matter in issue, entirely agrees with the view taken by the lower revisional court that the order of allotment passed by the Rent Control and Eviction Officer in favour of the petitioner was wholly illegal, void and without jurisdiction.
13. Learned counsel for the petitioner then switched gear to another submission that after setting aside the order of allotment, the lower revisional court should have remanded the case to the Rent Control and Eviction Officer for consideration of the release application of the landlord instead of allowing the application himself. This submission of the learned counsel too is sans any substance. After when the order of allotment has been quashed, the status of the petitioner reverts back to that of prospective allottee and it is well-established law that question of release is a matter between the landlord and the District Magistrate and the prospective allottee has no focus standi either to file objections or to adduce evidence in support thereof. In this connection, a reference may be made to the Full Bench decision of this Court in the case of Talib Hasan v. Ist A.D.J., Nainital, 1987 ARC 1. The same view has been reiterated in a number of decisions of this Court and even this Court has taken the view that an unauthorised occupant has no locus standi to object to the claim of the landlord for the release of the accommodation, if the same is bona fide required by him.
14. For the above reasons, this writ petition is dismissed and the District Magistrate is directed to make an enquiry into the matter and find out who were the persons responsible and liable for making interpolation and forgery in the despatch register kept in the Office of the Rent Control and Eviction Officer and thereafter to take appropriate action against them as he may deem fit. He is further directed to get the order of release implemented forthwith as per the order dated 24.7.98 passed by the lower revisional court and send compliance report of the same to this Court.
15. Let a copy of this order be sent to the District Magistrate, Budaun, within three days for immediate compliance.