JUDGMENT J.C. Gupta, J.
1. Counter and rejoinder-affidavits have been exchanged, hence this writ petition is decided finally.
2. Heard Shri A. N. Sinha, for the petitioner and Shri K. M. Dayal, Sr. Advocate, appearing for respondent No. 3.
3. This Court finds that this is one of those rare cases wherein an occupant has been dispossessed in a hasty and illegal manner without any respect to law.
4. Undisputedly the petitioner is a sitting tenant in premises No. 3/10A Vishnupuri, Kanpur Nagar of which respondent No. 3 is the landlord. An application was made by the landlord before the Rent Control and Eviction Officer-V Addl. City Magistrate, Kanpur Nagar (to be referred to in short as R.C. and E.O.) for declaring the tenanted accommodation vacant on the ground that the same was let out by him to the petitioner in the year 1979 without any order of allotment. A report was called for from the Rent Control Inspector who submitted the same on 16.6.99. On 17.6.99, the R.C. and E.O. passed the following order :
"Today report of Rent Control Inspector has been received. Case be registered and notice be issued to concerned parties fixing 24.6.99."
The case was then taken up on 24.6.99, and it was observed by the R.C. and E.O. that notice has been received after service which be kept on file and thereafter he proceeded to make the order of vacancy and fixed 23.7.99. for consideration of the matter of release/allotment. On 3.7.99. Landlord filed an affidavit in support of his claim of bona fide need and on the same day, impugned release order was made in favour of the landlord. Form 'C' was then issued on 21.7.99. On coming to know of all these proceedings, on 4.8.99 the petitioner moved an application under Section 16 (5) of the Act stating therein that the petitioner was never served with any notice at any stage of the proceedings and the entire proceedings were held behind her back collusivety. It was also stated by her that no notice was tendered to her nor had been affixed on the tenanted accommodation. She also disputed the landlord's allegation that the accommodation was vacant inasmuch as she has been in occupation of the same as tenant since 1971 i.e. even before the commencement of the Act. She further stated that even Form 'C' has not been served upon her. On 7.8.99 the District Magistrate, however, Issued Form 'D' holding that Form 'C' would be deemed to have been served upon the petitioner on the day when she filed vakalatnama and objections under Section 16 (5) of the Act. i.e., on 4,8.99. Challenging the orders of the R.C. and E.O. declaring vacancy, the order of release made in favour of the respondent and the orders of the District Magistrate issuing Form 'C' and 'D' the present writ petition has been filed which was taken up on 11.8.99. Since a caveat had been filed on behalf of the respondent through Shri. J. G. Upadhyay, Advocate and as he could not be served with the notice of hearing though attempted to by the petitioner's counsel, the matter was ordered to be put up on the next day and this Court directed that till the next day, the petitioner shall not be evicted from the premises in question in pursuance of the release order dated 3.7.99. According to the petitioner, the said order was conveyed to the District Magistrate, S.S.P., Kanpur Nagar and S.O. Nawabganj on fax but still the petitioner was dispossessed from the premises in question. In the counter-affidavit filed by the District Magistrate and S.O. Nawabganj, it is, however, denied that they had been apprised of the Court's order before the petitioner was evicted. In the circumstances, it is not necessary to take any action under the Contempt of Courts Act against any of these officers. However, the fact remains that the petitioner has been dispossessed in pursuance of the release order and Form 'D' issued by the District Magistrate.
5. The impugned orders have been challenged by the petitioner. inter alia on the ground that no notice under Rule 8 (2) had been served upon the petitioner even as per the report of the process server and inspection was made behind the back of the petitioner, that there is no order of the R.C. and E.G. holding that the notice issued by him after the receipt of report of Rent Control Inspector had been served upon the petitioner in accordance with the provisions of Rule 28 ; that the order of vacancy is a cryptic order which contains no reason whatsoever as to why the accommodation in question was treated to be vacant, that in any view of the matter once an application under Section 16(5) of the Act had been made by the petitioner for recalling the order declaring vacancy on the ground of non-service of notice and on the groirhd of the petitioner being in occupation since 1971, the District Magistrate had no power or jurisdiction to order dispossession under Section 16(4) of the Act by issuing Forms 'C' and 'D' respectively and Form 'D' could not be issued on 7.8.99 even on the basis of the finding of the District Magistrate that the Form 'C' would be deemed to have been served upon the petitioner on 4.8.99 when she filed objections under Section 16 (5) of the Act Inasmuch as that Form 'D' cannot be Issued before expiry of at least 7 days from the date of service of Form 'C'.
6. In Zila Janta Party and another v. Vth Addl. District Judge, Almora and others, 1979 ARC 387, it was held that once a review application under Section 16 (5) of the Act is filed, it is the duty of the District Magistrate to decide the review application first and he cannot issue order of ejectment under Section 16 (4) of the Act and order passed by the District Magistrate directing eviction of the objector before deciding application under Section 16 (5) is without jurisdiction.
7. In the present case, the petitioner undisputedly has moved an application under Section 16(5) of the Act on 4.8.99 specifically alleging therein that at no point of time, she had been served with any notice of hearing and that she has been in occupation of the tenanted accommodation since the year 1971. It was therefore, incumbent upon the R.C. and E.G. to have first decided the said review application of the petitioner and the orders of the District Magistrate issuing Forms 'C' and 'D' are wholly illegal, unwarranted and without jurisdiction. Form 'C' is not proved to have been served on the petitioner and while issuing Form 'D' the District Magistrate has himself observed that Form 'D' would be deemed to have been served upon the petitioner on 4.8.99, in such a situation and as per Rule 14 Form 'D' could not have been issued before 11.8.99 nor the petitioner could under law be dispossessed in pursuance of the said Form 'D'. The petitioner in the facts and circumstances of the case was dispossessed from the premises in question in a hurried manner without following the procedure prescribed under the Act.
8. For the reasons stated above, the orders of the District Magistrate Issuing Forms 'C' and 'D' are set aside and the case is sent back with the direction that the petitioner's application made under Section 16(5) of the Act shall now be decided after giving a reasonable opportunity of being heard to the petitioner as well as respondent No. 3 in accordance with law and in the light of the observations made above, preferably within a period of two months from the date a certified copy of this order is produced.
9. Having regard to the peculiar facts and circumstances of the case, this Court feels it necessary that the case now should be heard and decided by any officer other than the District Magistrate, Kanpur Nagar or any officer subordinate to him posted at Kanpur Nagar. With the consent of the parties counsel, it is directed that the proceedings in pursuance of this order shall now be held by the District Magistrate. Unnao, who shall-decide the petitioner's application made under Section 16 (5) of the Act expeditiously in accordance with law preferably within a period of two months from the date a certified copy of this order is produced before him.
10. Since it has already been held that the petitioner has been dispossessed from the premises in question in an illegal and unwarranted manner. It is directed that the possession of the premises in question shall be restored back to the petitioner within 3 days from today.
11. Respondent No. 3 who is present in Court is directed to comply with this order within three days. Station Officer. Nawabganj--Shri Ram Bahadur Singh, who is also present in Court has also been directed to ensure that this order is complied with within the aforesaid period.
12. Writ petition is accordingly disposed of with no order as to costs.