JUDGMENT Rakesh Tiwari, J.
1. By means of the instant writ petition, the petitioner has challenged the validity and correctness of the impugned judgment and order dated 18.6.2001 passed by the Rent Control and Eviction Officer, Kanpur Nagar - respondent No. 2 in Rent Control Case No. 184 of 1999 cancelling the allotment order dated 10.9.1996 in favour of the petitioner in respect of house No. 12/36, plot No. 36, Gwaltoli, Kanpur Nagar affirmed by the Special Judge, Kanpur Nagar - respondent No. 1 in Rent Revision No. 43 of 2001 vide judgment and order dated 7.3.2001.
2. Briefly stated, facts of the case as disclosed in the writ petition are that the petitioner a resident of Kanpur Nagar, on coming to know that premises No. 12/36, plot No. 36 Gwaltoli, Kanpur Nagar is likely to fall vacant moved an application for allotment of the said premises before the Rent Control and Eviction Officer, Kanpur Nagar.
3. Notices were issued to the concerned parties and a report of Rent Control Inspector was called for who submitted his report dated 13.8.1996, appended as Annexure 1 to the writ petition stating that the accommodation was likely to fall vacant as the sitting tenant was vacating the same.
4. Accordingly, vacancy was declared under Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') vide order dated 10.9.1996 passed by the Rent Control and Eviction Officer, Kanpur Nagar, appended as Annexure 2 to the writ petition, which is as under:
vkns'k izLrqr dk;Zokgh Jh tkfgn [kku }kjk fn;s x;s vkoaVu izkFkZuk&Ik= ds vk/kkj ij jsUV fujh{kd dh vk[;k ekaxk;h x;hA jsUV fujh{kd dh vk[;k o Ik=koyh dcs voyksdu ds I'pkr~ fookfnr Hkkx dh fjärk fnukad 2-8-96 dks /kksf"kr dh x;hA fjärk ij fdlh Ik{k }kjk dksbZ vkifRr ugha nkf[ky dh x;hA fdjk;snkj }kjk 'kiFki= izLrqr dj dgk x;k fd og Hkkx dks [kkyh djuk pkgrk gSA vkoaVu izkFkhZ }kjk viuh vko';drk ds lEcU/k esa 'kiFki= nkf[ku fd;kA Ik=koyh dk voyksdu fd;k x;k rFkk fo}ku vf/koDrk dks lquk x;kA fdjk;snkj }kjk 'kiFk&Ik= izLrqr dj dgk x;k gS fd og fookfnr Hkkx dks [kkyh djus dk fopkj j[krk gSA x`g Lokeh }kjk dksbZ vkifRr ugha nkf[ky dh x;hA Ik=koyh esa vkoaVu gsrq ek= Jh tkfgn [kku dk gh izkFkZuk&Ik= izkIr gSA Jh tkfgn [kku }kjk viuh vko';drk ij cy nsrs gq;s 'kiFk&Ik= nkf[ky fd;k ftlls izkFkhZ dh vko';drk mfpr ,oa ln~Hkkoh izrhr gksrh gSA vr% fookfnr Hkkx tkfgn [kku Ikq= Jh ,0 ,p0 [kku fuoklh 6&ch y{eh jru vkfQllZ dkyksuh dkyih jksM] dkuiqj dks vkoafVr fd;k tkrk gSA izns'ku vkns'k tkjh gksA okn dk;Zokgh Ik=koyh nkf[ky nrj dh tk;sA fnukad 10-9-96 g0 vLi"V ¼;'koUr jko½ uxj eftLVª[email protected] ,oa fu0 vf/k0 dkuiqj uxj
5. When no objection was filed either by the landlady or by the outgoing tenant, the premises, in dispute was allotted to the petitioner vide order dated 10.9.1996 passed by the Rent Control and Eviction Officer, Kanpur Nagar. The order is as under:
¼izns'ku vkns'k½ Øekad la[;k [email protected]@vkns'k [email protected] fnukad 9-9-96 mDr izns'kudkjh Hkou fdjk;s ij nsus rFkk fdjk;k cgn[kyh dk vf/kfu;e] 1972 mÙkj izns'k vf/kfu;e 13 lu~ 1972 dh /kkjk 16 ds vk/kkj ij v/khu 'kfDr;ksasa dk iz;kx djrs gq;s eSa ¼;'koUr jko½ uxj eftLVª[email protected] fu0 ,oa fu0 izkf/kdkjh dkuiqj uxj ,rn~}kjk vkns'k nsrk gwWa fd fufnZ"V Hkou edku uEcj [email protected]] IykV ua0 36] XokyhVksyh dkuiqj Hkwfe ij fLFkr 3 dejs LVksj] xfy;kjk] ySfVªu] ckFk:e] fdpsu] ,oa [kqyh Nr o vkaxu ds :I esa tkfgn [kku dks fdjk;s ij fn;k tk;sxk vkSj eSa ;g Hkh vkns'k nsrk gwa fd edkunkj hkou dk Hkkx dk fooj.k dk dksbZ izns'ku xzfgrk dks fnukad 16-9-96 rd ns nsxk vkSj ;g Hkh fd iz'uxr Hkkx dk izns'ku xzfgrk }kjk [email protected] dk iz;ksx esa yk;sxkA fnukad 10-9-96 g0 vLi"V ¼;'koUr jko½ uxj eftLVª[email protected] fu0 ,oa fu0 vf/k0 dkuiqj uxj
6. On the strength of allotment order dated 10.9.1996, the petitioner got possession over the disputed accommodation vide possession memo appended as Annexure-V to the writ petition.
7. The case of the petitioner is that after obtaining possession, he tendered rent to the landlady but she refused to accept it. Thereafter, he sent rent every month from January, 1997 onwards but landlady refused to accept rent. When landlady tried to forcibly evict the petitioner with the help of musclemen, he was compelled to lodge a criminal complaint against her in Police Station Gwaltoli and also brought the matter to the notice of higher police officers. By the indulgence of police personnel, the landlady was not allowed to evict him illegally by force from the accommodation, in dispute.
8. It is alleged that thereafter, the landlady moved a highly belated application under Section 16(5) of the Act for cancellation of the allotment order which was contested by the petitioner denying the allegations averred therein.
9. The application of the landlady for cancellation of the allotment was allowed by the Rent Control and Eviction Officer, Kanpur Nagar vide order dated 18.6.2001 giving rise to Rent Revision No. 43 of 2001 by the petitioner which too has been dismissed by the Special Judge, respondent No. 1. The aforesaid orders are under challenge in this petition.
Contentions of counsel for the petitioner:
10. It has been contended by counsel for the petitioner that the application under Section 16(5) of the Act moved by the landlady was barred by time as she had full knowledge about allotment order dated 10.9.1996 but did not file any objection before the order was passed, despite the fact that the order had been passed after following due process of law, service of intimation of allotment in favour of the petitioner through process server and order regarding intimation of vacancy. It is submitted that the courts below conveniently ignored this fact. It is further submitted that the petitioner had repeatedly tendered rent to the landlady but she refused to accept and when she tried to evict the petitioner from the disputed accommodation with the aid of unsocial elements, he was compelled to lodge criminal complaint against her and it was only on the interference of Police that the landlady could not evict him illegally from the accommodation, in dispute, by use of force. Counsel for the petitioner placed reliance on the decisions of High Court in Shri Nasir Abbas v. The District Judge, Rampur and Ors. 1977 ARC 29 and Gandhi Ashram v. Smt. Ram Dulari and Ors. 2000 (2) ARC 588, wherein it has been held that the allotment order cannot be cancelled in review without there being any finding that the allotment order was illegal.
Contentions of counsel for the respondent:
11. Per contra, it has been contended by counsel for the respondent-landlady that no limitation is prescribed for submission of application under Section 16(5) of the Act, therefore, it cannot be said that the application of the landlady was belated. He urged that the petitioner moved application for allotment wrongly mentioning address of the landlady as 10/270 Khalasi lane, Kanpur in collusion with the outgoing tenant Sri Jai Kishan whereas she was actually living with her sister in house No. 3/101 Pattrakar Puram Vidhayak Puram, Lucknow for treatment and came to Kanpur occasionally to receive the rent from the tenants; that she is unmarried and rent from the disputed house is her sole income.
12. It is submitted that when she saw an unknown person in the premises of Sri Jai Kishan, she asked him in what capacity he was there but he kept quite compelling her to move an application dated 4.10.1977 to the Senior Superintendent of Police for his eviction. As no action was taken by the Senior Superintendent of Police, on the application, she moved another, reminder to him on 22.3.1998 which also met the same fate.
13. It is further submitted that when she came to Kanpur in July, 1998, she was informed by Sri Zahid khan that the accommodation of Sri Jai Kishan has now been allotted to him and he is ready to give rent to her. On coming to know about the allotment of the accommodation to Sri Zahid Khan, for the first time, she moved application dated 3.8.1998 for cancellation of the order of allotment bringing to the notice of the prescribed authority the aforesaid facts and also stating that she had neither been informed of the allotment proceedings nor had any opportunity to make any objection in the facts and circumstances narrated above and lastly that before passing allotment order, proper procedure for publication of vacancy was also not followed and has only been recorded on paper, in collusion with the process server and the Inspector. Paragraphs 4 and 5 of her application is relevant for the purposes of this case, which are quoted below:
4- ;g fd tqykbZ] 1998 ds nwljs lIrkg esa izkfFkZuh iqu% fdjk;k ysus fdjk;snkjksa ds ikl vk;h rks mDr utk;t dCtsnkj dh izkFkhZuh ;ls HksaV gks x;h rc mlus crk;k fd tks fookfnr edku uEcj] [email protected] IykV uEcj 36 ds Hkwfe [k.M esa rhu dejsa] LVksj] xfy;kjk] [kqyh Nr] ySfVªu] ckFk#e] fdpsu o vkaxu bl U;k;ky; }kjk ,ykV dj fn;s x;s rFkk og izkfFkZuh dks fdjk;k nsus dks rS;kj gksA 5- ;g fd mDr tkudkjh gksus ds ckn izkFkhZuh us vkosVu dh Ik=koyh dk fujh{k.k djk;k rks fuezfyf[kr rF; izdk'k esa vk;s % ¼d½ foi{kh us iwoZ fdjk;snkj ls feydj t; fd'ku fookfnr Hkkx ds vkoaVu gsrq fnukad 16-7-1996 dks fn;k FkkA ftlesa mlus fy[kk Fk fd iz'uxr edku fjDr gksus okyk gSA ¼[k½ ;g fd t; fd'ku us fjDrrk ds laca/k esa viuk c;ku ,l0 vkbZ0 dks fn;k Fkk ftldh iqf"V foi{kh ds esyh bj'kkn teku us dh FkhA ¼x½ ;g fd ;w0 ih0 ,DV 13 lu~ 1972 ds fu;e 8 o [email protected] dk dksbZ vuqikyu ugha fd;k x;k gS rFkk u rks izkfFkZuh dks dksbZ uksfVl tkjh fd;k x;k u mls vkoaVu izkFkZuk&Ik= ;k fjDrrk ds lEcU/k esa lquokbZ dk dksbZ volj fn;k x;k gSaA ¼?k½ ;g fd Ik=koyh ls ;g Hkh Kkr gqvk gS fd izkfFkZuh dks dksbZ uksfVl Mkd ¼jft0½ ls ugha Hkstk x;k gSA ¼p½ ,l0 vkbZ0 us viuh vk[;k esa lo;a fy[kk gS fd x`g lokfeuh ls dksbZ lEidZ ugha dj ldkA tcfd okLrfodrk ;g gS fd ,l0 vkbZ0 us izkfFkZuh ls lEidZ djus dk dksbZ iz;kl ugha fd;kA ¼N½ ;g fd Ik=koyh ds voyksdu ls ;g Hkh fofnr gqvk gS fd ,l0 vkbZ0 us okLro esa iz'uxr vkokl dk dksbZ fujh{k.k ugha fd;k gS rFkk foi{kh ls feydj vius ?kj ij fjiksVZ fy[k nhA ¼t½ ;g fd ;w0 ih0 ,DV 13 lu~ 1972 ds fu;e [email protected] ds vUrxZr ;g vfuok;Z gS fd tk¡p vkl&ikl ds de&ls&de nks lEekfur O;fDr;ksa ds le{k dh tk;s fdUrq ,l0 vkbZ0 us ,slk u djrs gq;s fu;e [email protected] ds izkfo/kkuksa dh /kfTt;k¡ mM+k nhA ¼>½ ;g fd fjDrrk vkns'k ikfjr djus ds iwoZ dksbZ uksfVl U;k;ky; }kjk rkehy ugha gqbZA foi{kh us pijklh ls feydj izkfFkZuh dh bUDok;jh Hkh QthZ rkehy fn[kk nhA bUDok;jh ds xokg loJh ca'k ,oa tkosn vkye gSa tks vkl&ikl dgha ugha jgrs gSaA budk uke QthZ rkSj ij fn[kk;k x;k gSA ¼V½ ;g fd rFkkdfFkr vkns'k dHkh Hkh uksfVl cksMZ ij turk ds voykssdu gsrq ugha yk;k x;k tks bl ckr ls ifjyf{kr gksrk gSA fdlh vU; O;fDr us dksbZ vkoaVu izkFkZuk&Ik= iz'uxr Hkkx ds lEcU/k esa ugha fn;k x;kA ¼B½ ;g fd fjDrrk dk vkns'k ikfjr gksus ds ckn vkoaVu dh rkjh[k dh dksbZ lwpuk izkfFkZuh dks ugha nh x;h izkfFkZuh ds ihB ds ihNs iz'uxr vkokl foi{kh dks fnuksa 10-9-98 dks ,ykV dj fn;k x;kA ¼M½ ;g fd foi{kh us vU; rF; Hkh U;k;ky; ls fNik fy;s FksA
14. It is vehemently urged on behalf of the respondents that notice of likely vacancy or actual vacancy or notice about the date of consideration of the allotment application was served upon her and cancellation of allotment order is just and proper in the aforesaid facts and circumstances, as such, calls for no interference in the writ jurisdiction.
Conclusions:
15. Having heard arguments advanced by counsels for rival parties and going through the records placed by the counsels for the parties in support of their arguments, it is evident that the Rent Control Inspector did not make any effort to meet the landlady for inspection nor elicited facts from any of the persons residing in the locality. From a bare perusal of report (Annexure-1 to the writ petition) it is evident that the premises, in dispute, had neither fallen vacant on the date of allotment application, i.e. 16.7.1996 nor the landlady had notified any vacancy to the Rent Control and Eviction Officer. The Inspector had found that lock of Sri Jai Kishan, tenant was on the entrance door of the disputed premises and he was neither able to meet him nor the landlady who was being treated at Lucknow when she was living with her sister. It appears from the application of the tenant and the report of the Inspector that he desired to vacate the accommodation in future, and all the proceedings during this period were ab initio illegal and without jurisdiction. The disputed accommodation was not vacant prior to 15.9.1996, thus allotment order dated 2.9.1996 was manipulated and illegal. The prescribed authority has no jurisdiction to entertain any application for allotment by declaration of vacancy until and unless vacancy is notified by the landlord or it comes to his knowledge that the vacancy has actually occurred and certainly not where the tenant informs that he has intention to vacate the accommodation under his tenancy in future.
16. The authorities in the present case have overlooked this aspect of the matter that there was no vacancy rather it appears that since the landlady was living with her sister at Lucknow and was under medical treatment, the petitioner taking advantage of the fact and in collusion with the authority, the Rent Control Inspector and Process Server got an allotment order in his favour while Sri Jai Kishan, the tenant was still living in the disputed house. It also appears that the tenant Sri Jai Kishan handed over the possession to him with aid of Police. Such procedure is against the object and spirit of the Act No. 13 of 1972 and such procedure cannot be given sanction of law.
17. From the orders of declaration of vacancy dated 10.9.1996 as well as order of allotment of same day, it is apparent that they have been passed on the same day in apprehension of future vacancy or contingency and thereafter the accommodation has been got handed over to the petitioner through Police. The landlady had no occasion to make any objection as all the things were done in very hush-hush manner and collusion with the prescribed authority and its staff for which strict action in accordance with law against them is recommended.
18. It could not be established by the petitioner that the landlady had knowledge about the proceedings of his induction in the accommodation of Sri Jai Kishan appears that at a later point of time after taking possession from the erstwhile tenant the petitioner offered rent to the landlady. Tenancy in such manner cannot be regularized by the Courts. The revisional court has rightly upset the finding of the prescribed authority holding that the party entitled to notice (i.e. landlady) was not given notice and the order of the prescribed authority is against the principles of natural justice as the proceedings for allotment had been held by keeping the landlady in dark.
19. For the reasons stated above, the writ petition fails and is dismissed. The order of the prescribed authority is quashed. Petitioner will handover vacant possession of the disputed accommodation to the landlady forthwith within a month. The prescribed authority will then call upon the landlady by means of valid notice for passing order regarding vacancy/allotment of house, in dispute. Wide publication of notice will be given apart from posting the same on the Notice Board. Appropriate orders will then be passed after affording fullest opportunity of hearing to the concerned parties, including the landlady for raising objections, if any. No order as to costs.