Naveen Chandra Joshi vs Girish Chandra Joshi and Others

B.S. Verma, J.—Since in both the writ petitions similar controversy is involved and relate to the same premises in question, therefore, they are petitions are being decided by this common judgment.

Writ petition No. 929 (M/S) of 2007 has been filed by the landlord for quashing the impugned order dated 4-8-2007, passed by Respondent No. 5/Additional District Judge/F.T.C. 1st Nainital, in Rent Control Revision No. 36/2007, preferred against the order dated 4.5.2007, whereby form-D was issued, passed in R.C.C. No. 51/31991-92.

Writ petition No. 957 (M/S) of 2007 has been filed by Naveen Chandra Joshi, in whose favour the premises in question was allotted by the Rent Control and Eviction Officer/S.D.M. after deemed vacancy, for quashing the judgment and order dated 4-8-2007 passed by Respondent No. 5/Additional District Judge/ F.T.C. 1st Nainital in Rent Control Revision No. 37/2007, filed by Prasan Lal Sah, tenant against the judgment and order dated 4.5.2007 passed in R.C.C. No. 51/3-1991-92, whereby form-D was issued and also the order dated 17.1.2007 whereby the premises was allotted to Naveen Chandra Joshi by the R.C. & E.O./S.D.M.

Briefly stated the facts giving rise to this petition, according to the Petitioner are that Case No. 51/1991-92, was registered before Rent Control Eviction Officer ( R.C. & E.O.)/S.D.M. Nainital, on the allotment application moved by Naveen Chandra Joshi praying for allotting the shop in question in his favour. Report was sought from Senior Inspector, Rent Control, who submitted the inspection report dated 5-8-1992, in which it was reported that shop No. 6 Bank House Mall Road, Nainital was found closed. On inquiry it was found that the owner of the shop was Lakshmi Dutt Joshi who has died in March 1992 and his two sons Mohan Chandra Joshi and Girish Chandra Joshi are the legal heirs to succeed the shop. It was also apprised to the Senior Rent Controlling Officer that the shop was given on rent by Lakshmi Dutt Joshi to one Chait Ram Chaudhary, but the shop was vacant for the last 4-5 years. It was also reported that the shop may be declared vacant u/s 12 of U.P. Act No. 13 of 1972.

The Prescribed Authority issued notice to landlord asking him to submit his written consent or objection on 25.8.92, failing which the shop in question would be deemed vacant in accordance with law. The landlord Mohan Chandra Joshi and Girish Chandra Joshi filed application through their Advocate that they have No. objection if the shop in question is declared as vacant and after such declaration they would move application to handover the shop for their own use.

Sri Chait Ram Chaudhary appeared before the Prescribed Authority and made a statement that he is tenant in the shop since twenty years and he is making payment of rent to the landlord. From 4-5 months he is not feeling well and he remained admitted in Ramje Hospital and for this reason the shop remained closed and when he recovered from his illness he has opened the shop. He also filed affidavit in support of his statement.

Sri Naveen Chandra Joshi filed his affidavit and deposed that the statement of Chait Ram Chaudhary is wrong that he is tenant from twenty years and the shop is closed for the last 4-5 years. It is also alleged that even if it is stated that Chait Ram Chaudhary was in possession of the shop that was illegal possession and the shop is liable to be declared vacant under the provision of Section 12 of U.P. Act No. 13 of 1972.

The learned R.C. & E.O./S.D.M. after considering the facts of the case declared the shop in question as vacant vide order dated 22.3.1993 and published its notice on 24.3.1993. Thereafter two applications were received by the Prescribed Authority for allotment.

Feeling aggrieved from the order of Prescribed Authority Chait Ram Chaudhary filed Writ Petition before the High Court and the impugned order was stayed vide order dated 31.3.93. Ultimately the writ petition was dismissed by Uttarakhand High Court vide order 9.5.2006 in default of the Petitioner and the stay order was also discharged. Thereafter the Prescribed Authority vide order dated 297-2006 and 21-8-2006 informed the concerning parties that the shop in question has been declared as vacant and invited applications for allotment. The notice was also sent to Mohan Chandra Joshi and Girish Chandra Joshi. It was reported that Mohan Chandra Joshi has died and Girish Chandra Joshi was residing at Kanpur, hence notice was affixed on the house of Girish Chandra. After issuing notice, only learned Counsel for allottee Naveen Chandra Joshi appeared before the Prescribed Authority and No. other allottee appeared.

The learned R.C.& E.O./S.D.M. after hearing learned Counsel for Naveen Chandra Joshi allotted the shop in question in favour of Naveen Chandra Joshi to do his business and also issued Praptra ''Kha''.

Feeling aggrieved the landlord/Respondents preferred Rent Control Revision No. 36/2007 which was allowed by Additional District Judge/ 1st F.T.C. Nainital vide impugned judgment and order dated 4-8-2007 and the allotment of the shop made in favour of Naveen Chandra Joshi was quashed. The tenant Prasan Lal also preferred Revision No. 37/2007 which was allowed and the allotment order in favour of Naveen Chandra Joshi was quashed.

Now feeling aggrieved by above orders, Naveen Chandra Joshi, has preferred these writ petitions. The Petitioner has filed the writ petition on the ground that the revisional court has wrongly interpreted the import of handing over of possession to Respondent No. 2 to whom he alleges to have created the tenancy by an agreement dated 29-8-2000. This tenancy by virtue of that agreement is illegal. The tenancy without there being an allotment order would be deemed to be an unauthorized tenant. It is also alleged that the vacancy was declared on 22.3.1993, the landlord has not challenged the vacancy order. He has neither filed a revision or writ petition against it and he has challenged the vacancy order under the garb of allotment order dated 17.1.2007, hence, the revision was barred and not maintainable. It is also alleged that there was No. objection by the landlord or by anyone against the report of Rent Control and Eviction Officer dated 5.8.1992 and the vacancy was declared on 22.3.1993. While passing the order of allotment the court of Rent Control and Eviction Officer has recorded the satisfaction of service on the Respondents. The revisional court has ignored the above facts hence the impugned order is liable to be set aside.

The Respondents filed counter affidavit and denied the contents of writ petition. It is alleged that Respondent Girish Chandra Joshi and his brother late Mohan Chandra Joshi were owner of shop in question. The shop was given to Chait Ram Chaudhary about 35 years back and Sri Chait Ram was running the restaurant in the disputed shop in the name and style of M/s Midlake Restaurant. On 13.5.2000 Chait Ram died and after the death of Chait Ram, he was survived by two daughters. These two daughters removed all the effects from the shop and handed over the shop to the landlord on 25.8.2000. Thereafter Girish Chandra gave the said shop to Prasan Lal Sah @ Rs. 2100/- per month rent on 29-8-2000. After the death of Mohan Chandra Joshi, co-landlord of the shop, his widow and children, Respondents 2 to 4, became co-owner of the shop. On 19-5-2007 Sri Prasan Lal Sah, was evicted by the police from the shop in question and on asking it was revealed that R.C.& E.O./S.D.M. Nainital had allotted the shop to Naveen Chandra Joshi and in compliance of the order tenant Prasan Lal Sah was evicted from the shop. It was alleged that the learned R.C.& E.O./S.D.M. never issued any notice to landlord before allotting the shop to Naveen Chandra Joshi. It was further alleged that paper No. 96/2 dated 4.11.1992 has been shown to be given by some Advocate on behalf of landlord but the landlord never gave any such application nor any Advocate was appointed to do pairwee in some case. It is alleged that Petitioner most malafidely concealed and suppressed the fact about the occupation and possession of Prasan Lal Sah over the shop in dispute since 29-8-2000 and fraudulently manipulated to procure the allotment order against the lawful occupant.

The Petitioner filed rejoinder affidavit and alleged that Chait Ram Chaudhary was the tenant in the tenement in dispute. It was clarified that Chait Ram Chaudhary had a hotel called as ''Lake View Hotel'' from where he was earning his livelihood and for the said reason the tenanted shop has been kept locked by Chait Ram.

I have heard learned Counsel for parties and perused the entire material available on record.

Learned Counsel for the Petitioner has submitted that Chait Ram Chaudhary tenant in the shop in question vacated the tenement and inducted Mr. Sandeep Sah as sub-tenant who was not the family member. Thus the vacancy was created u/s 12(1)(b) of the Act hence there was deemed vacancy. He further submitted that on behalf of landlord their counsel had appeared before the Prescribed Authority, the landlord had executed vakalatnama, showing that they were aware of the case hence No. prejudice was caused to the landlord.

Learned Counsel for Petitioner also submitted that tenant Chait Ram had appeared before the Prescribed Authority and filed objection hence question of serving him looses its importance. He further submitted that the landlord had contested the proceeding through counsel and if the landlord was not served, therefore, order passed in the proceedings cannot be set aside on the ground of non-compliance of Rule 8 of Act No. 13 of 1972. Learned Counsel appearing on behalf of Petitioner in support of his contentions has cited before me a large number of case laws, some of which shall be dealt with by me later-on.

Learned Counsel for the Respondent/landlord has submitted that the shop in question was in the tenancy of Prashan Lal and the same was not vacant. The Rent Control Officer did not issue any notice before the inspection and even the names of the persons from whom he enquired. Learned Counsel also submitted that mere fact that the shop was found locked will itself not indicate that the tenant has removed his effects from the disputed shop. Learned Counsel also submitted that the landlord was not served with the notice before allotment of shop in favour of Petitioner. In support of his contentions learned Counsel for the landlord/Respondents has cited before me the following case laws:

(1) Priya Lal and sons v. Rent Control and Eviction Officer/DSO Nainital, reported in [2004 (2) ARC 873],

(2) Leela Wati (Smt.) and Ors. v. Ram Swaroop and Ors. reported in [2003 (2) ARC 483],

(3) Girish Chandra Gupta and Anr. v. M/s Gambhir Mal Pandya Private Ltd. Company, Jhon Mills, Agra, reported in 2000 (1) ARC 105,

(4) Lallan Prasad v. Rent Control and Eviction Officer, Allahabad and Ors. reported in 2000 (2) ARC 7,

(5) Smt. Shankuntala Agrawal v. District Judge, Kanpur and others, reported in 1999 (1) ARC 286,

(6) K.K. Tewari v. 1st Additional District Judge, Allahabad and others, reported in ARC 1992 (1),

(7) Ram Palat Singh v. Kalap Nath Rai and Ors. reported in ARC 1984 (2).

Deemed vacancy of a building is defined in Section 12 of U.P. Act No. 13 of 1972, which runs as under:

Deemed vacancy of building in certain cases (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if-

(a) he has substantially removed his effects there-from, or

(b) he has allowed it to be occupied by any person who is not a member of his family, or

(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.

(2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building....

From a bare perusal of above provision, it is quite clear that a building or part thereof shall be deemed vacant when a landlord or tenant of the building has substantially removed his effects from the building, or he has allowed it to be occupied by any person who is not a member of his family. Further in the case of a residential building he as well as members of his family taken residence elsewhere and in the case of non-residential building where a tenant carrying on business admits a person who is not a member of his family as partner or a new partner, the tenant shall be deemed to have ceased to occupy the building.

In the instant case the proceeding started before Sub Divisional Magistrate/Prescribed Authority on the report dated 5.8.1992 submitted by Senior Rent Control Officer. The report was sought on the allotment application moved by the Petitioner. In the report the R.C.O. has noted that main part of the shop was locked. On inquiry Sri Lakshmi Dutt Joshi was the landlord of the shop who had died in March 1992 and now his sons Mohan Chandra Joshi and Girish Chandra Joshi are owner of the property. It was further came to light that the shop is given on rent to Chait Ram Chaudhary by Lakshmi Dutt Joshi who is owner of Lake View Hotel Tallital but for the last 45 years No. working activities are going on in the said shop and it is in possession of Sri Chaudhary. The witnesses present at spot also told that the shop is closed from the last 3-4 years. From the report of Senior R.C.O. it reveals that he has not inspected the shop from inside and it was not known whether the effects of Chait Ram Chaudhary were there or he had removed the same. At the same time the R.C.O. also mentioned that the shop in question was in possession of Chait Ram. The Senior R.C.O. also did not mention the names of the persons present at the spot at the time of inspection.

On the other hand, the case of landlord/Respondents is that Girish Chandra Joshi and his brother late Mohan Chandra Joshi were owner of shop in question. The shop was given to Chait Ram Chaudhary about 35 years back and Sri Chait Ram was running the restaurant in the disputed shop in the name and style of M/s Midlake Restaurant. On 13.5.2000 Chait Ram died and after the death of Chait Ram, he was survived by two daughters. These two daughters removed all the luggage from the shop and handed over the shop to the landlord on 25.8.2000. Thereafter Girish Chandra gave the said shop to Prasan Lal Sah @ Rs. 2100/- per month rent on 29-8-2000. After the death of Mohan Chandra Joshi, co-landlord of the shop, his widow and children, Respondents 2 to 4, became co-owner of the shop. On 19-5-2007 Sri Prasan Lal Sah, was evicted by the police from the shop in question and on asking it was revealed that S.D.M. Nainital had allotted the shop to Naveen Chandra Joshi and in compliance of the order tenant Prasan Lal Sah was evicted from the shop. It was alleged that the learned S.D.M. never issued any notice to landlord before allotting the shop to Naveen Chandra Joshi. It was further alleged that paper No. 96/2 dated 4.11.1992 has been shown to be given by some Advocate on behalf of landlord but the landlord never gave any such application nor any Advocate was appointed to do pairwee in some case. It is alleged that Petitioner most malafidely concealed and suppressed the fact about the occupation and possession of Prasan Lal Sah over the shop in dispute since 29-8-2000 and fraudulently manipulated to procure the allotment order against the lawful occupant.

It is the specific case of the landlord that the Chait Ram tenant, died on 13-5-2000 and after his death his two daughters got removed the effects from the shop and handed over possession to landlord. Thereafter the shop was given on rent to Prashan Lal by the landlord and thereafter police got evicted him from the shop in compliance of allotment order passed by the Sub Divisional Magistrate.

It is also pertinent to mention here that the Prescribed Authority relying on the report of R.C.O. dated 5.8.1992 passed vacancy order dated 22.3.1993 and the said order was assailed before High Court also and the writ petition filed by Chait Ram tenant was ultimately dismissed for default on 9.5.2006. Thereafter the Sub Divisional Magistrate on 29-7-2006 and 21-8-2006 again passed vacancy order for which No. report was sought from R.C.O. Notice was sent to landlord but as one of the landlord Mohan Chandra Joshi had died and Girish Chandra Joshi was not residing at his address and he was residing at Kanpur, notice was affixed at his house where he was not residing. Therefore it is quite clear that the landlord was not heard before passing the vacancy order and passing allotment order in favour of Petitioner.

I have also gone through the case laws cited by learned Counsel for landlord/Respondents.

In the case of Priya Lal and sons v. Rent Control and Eviction Officer/DSO Nainital, reported in [2004 (2) ARC 873], it has been held that premises being already locked, the deeming clause cannot be applied without following the procedure prescribed in the scheme. The court has found that neither Rule 8 has been complied with nor the substantial removal as required by Section 12 has been proved, the order, therefore, passed by the Rent Control and Eviction Officer cannot be allowed to stand. In the instant case also the shop in question was found locked and substantial removal of effects as required by Section 12 has not been proved and on this ground the order of vacancy passed by Prescribed Authority cannot be allowed to stand. In the case of Leela Wati (Smt.) and others v. Ram Swaroop and Ors. reported in [2003 (2) ARC 483], question of validity of report of R.C.I. was dealt with. In paragraph No. 2 it has been held as below:

The Revisional Court has rightly held that No. notice was issued before the inspection R.C.I. has not mentioned even the names of the persons from whom he enquired. The entire proceedings including allotment order is liable to be set aside on this ground alone. If inspection is made without notice to the landlord and the names of two persons of the same locality from whom R.C.I. enquired the matter are not mentioned in his report then it is violation of mandatory provisions of Rule-8 which vitiates the entire proceedings. The other ground which vitiated the entire proceedings including the allotment order is that there is No. order declaring vacancy, hence there arises No. question of issuing notice to the landlord before passing such order. In view of Section 16(1) proviso it was mandatory for R.C. & E.O. to give opportunity to the landlord of showing that there was No. vacancy. The Supreme Court has held in 1985 (2) ARC 73, that the order declaring vacancy without hearing landlord is illegal. In the instant case the illegality is stronger as there is No. order declaring vacancy.

In the instant case also No. notice to landlord, before inspection by Senior R.C.O. on 5-8-1992, was given and when subsequent vacancy order was passed by the Prescribed Authority No. report was sought and notice could not be served.

In the case of Girish Chandra Gupta and Anr. v. M/s Gambhir Mal Pandya Private Ltd. Company, Jhon Mills, Agra, reported in 2000 (1) ARC 105, it has been observed that mere fact that the shop was found locked will itself not indicate that the Petitioner has removed his effects from the disputed shop. Secondly even if a person has not been able to carry on business for some time, there is No. presumption that the effects of the shop have been removed. The Petitioner in that case was admittedly in possession of the shop. In absence of any findings that she had removed the effects with an intention to vacate the shop, the accommodation cannot be treated as vacant.

In the instant case the R.C.O. himself has mentioned in the inspection report that the shop in question is in possession of Chait Ram Chaudhary and this fact was not ascertained whether he had removed his effects or not. Hence the order passed by Prescribed Authority was a perverse order.

In the case of Lallan Prasad v. Rent Control and Eviction Officer, Allahabad and Ors. reported in 2000 (2) ARC 7, also the shop was found locked, No. notice was given to tenant and the vacancy was declared on the presumption that shop found locked the order was quashed.

In the case of Smt. Shankuntala Agrawal v. District Judge, Kanpur and Ors. reported in Allahabad Rent Cases 1999 (1) ARC 286, it has been held that the Petitioner was entitled to a notice of the date fixed for hearing on the allotment applications, if an accommodation is declared vacant.

In the case of K.K. Tewari v. 1st Additional District Judge, Allahabad and Ors. reported in Allahabad Rent Cases, 1992(1), mode of service of notice has been given, the relevant portion is quoted below:

Service of notice-(1) A notice issued by the District Magistrate, the Prescribed Authority or the appellate or revising authority under the provisions of the Act shall be served on the person concerned:

(a) by giving or tendering it to such person, or his counsel; or

(b) by giving or tendering it to any adult member of the family; or

(c) if No. 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.

In the above cited case the process server, instead of tendering the notice to an adult family member has taken recourse to the method of affixation. The service of notice for the aforesaid reason was not treated to be a valid service according with law.

The facts of above cited case are fully covered to the facts of the case in hand. In this case also the process server has affixed notice on the address of landlord instead of handing over to an adult member of the family. 34. In the case of Ram Palat Singh v. Kalap Nath Rai and Ors. reported in Allahabad Rent Cases, 1984 (2) cited by learned Counsel for the Respondents, it has observed that order of allotment if passed in Form B on the ground that building is in occupation of unauthorized person, such an allotment order cannot be enforced unless 15 days time from the date of service of a notice to vacate the building has been passed.

I have also perused the case laws cited by learned Counsel for the Petitioner.

In the case of Mool Chandra Gupta v. Rent Control and Eviction Officer/Additional City Magistrate (1st) Kanpur Nagar and another, reported in Allahabad Rent Cases 1999 (1) ARC 515, it has been observed in para-5 -

It is incumbent upon the landlord to give notice of vacancy to the District Magistrate in writing on a building falling vacant by his ceasing to occupy it or by the tenant vacating it under Sub-section (1) of Section 15 of the Act and similarly the tenant is also liable to give notice to the District Magistrate in writing under Sub-section (2) of Section 15 of the Act, where he vacates the building. The landlord cannot let out any accommodation in violation of the provision of Section 11 of the Act which prohibits any person to let out any building except in pursuance of an allotment order issued u/s 16 of the Act and if the accommodation is so let out without any allotment order passed u/s 16 of the Act, his possession shall be deemed as unauthorized u/s 13 of the Act. The person occupying an accommodation without any allotment order and the person letting out both are liable to for prosecution u/s 13(1) of the Act.

In the instant case the position is different. The shop in question was in the tenancy of Chait Ram Chaudhary who died on 13-5-2000. He was succeeded by two daughters. The daughters of Chait Ram after surrendered the shop in favour of landlord after removing the effects of their father. However the landlord did not inform the vacancy to the Prescribed Authority and compliance of provision of Section 15 of the Act was not made, but this fact does not effect the veracity of the case because the vacancy order passed by learned Prescribed Authority was not passed after following the prescribed procedure as discussed in the earlier part of the judgment.

On the point of deemed vacancy learned Counsel for Petitioner has cited the case of Suresh Chandra v. IVth Addl. District Judge, Aligarh and Ors. reported in Allahad Rent Cases 1984 (1) ARC 590. The Allahabad High Court relying on the case of Shyam Das v. The Addl. District Judge 1984 (1) (U.P.) RCC 134, has observed that in the absence of intimation of vacancy either by the landlord or by the tenant, Rule 9(3) has No. application. The court has held that the allotment order should not be interfered with on the technical ground of non-service of notice on the attorney of the Petitioner.

It is further observed that the shop had been vacated by the previous tenant and was in possession of the Petitioner through his attorney and intimation of vacancy was not given to the Rent Control and Eviction Officer as required u/s 15(1) of the Act. It was not a case of deemed vacancy.

In the instant case also the shop in question was handed over to landlord by the heirs of deceased tenant and No. intimation was given to Rent Control and Eviction Officer, however, there is No. case of deemed vacancy. Therefore, the above case law cited by learned Counsel for Petitioner does not apply to the facts of the case in hand.

Learned Counsel for the Petitioner also submitted that both the landlords under their signatures had filed Vakalatnama which leads to a conclusion that the landlords had the knowledge of the proceedings for allotment pending before the court below and once the Vakalatnama has been filed by the landlord therefore it will be presumed that they had knowledge of the proceeding for declaration of vacancy and allotment. In support of his contention learned Counsel has cited the case of Suleman v. IV Additional District Judge, Muzaffarnagar, reported in 1998 (II) A.R.C. 420.

In the above cited case it has been observed that on execution of Vakalatnama it would be presumed that he was aware of the case.

Copy of Vakalatnama has been annexed as C.A.-3. Perusal of this documents shows that Sri Lalit Mohan Joshi Advocate was engaged by Chait Ram Chaudhary, tenant, but at the foot of it signature of M.C. Joshi and G.C. Joshi have been made. Signature of Chait Ram Chaudhary who has been shown to engage Sri Lalit Mohan Joshi as an Advocate on his behalf, has not been obtained anywhere in the Vakalatnama. Therefore it can not safely be inferred that actually the landlord M.C. Joshi and G.C. Joshi have knowledge of proceeding and they had engaged Sri Lalit Mohan Joshi Advocate. This document lends support to the assertion of the landlord/Respondent that they had not engaged any counsel on their behalf.

Learned counsel for the Petitioner also contended that the landlord Girish Chandra Joshi with an intention to render the allotment proceedings had executed a lease deed for an indefinite period in favour of Prasan Lal Sah. The deed was with a deliberate intention to take out the proceedings out of the purview of Rent Control Act and that is why the rent as settled in the said deed was at Rs. 2,100/- per month, whereas the rent assessed of the tenement still continues to be Rs. 880/- per month. He further submitted that the deed dated 29-8-2000 was a sham document for the reasons that it should have been registered u/s 17 of the Registration Act otherwise it will not create any right with Prasan Lal Sah. In support of his contention he has cited the case of The Roman Catholic Mission Vs. State of Madras and Another, .

In the above cited case it has been held that if original document is not produced at any stage and No. foundation laid for establishment of right to give secondary evidence, copies of original not admissible in evidence.

In the instant case the police has forcibly evicted Prasan Lal from the suit property in execution of order passed by the Prescribed Authority and this fact indicates that Prasan Lal was tenant in the shop hence the case of the landlord that the shop was given to Prasan Lal on rent @ Rs. 2100/- per month cannot be denied and the submission of learned Counsel for the Petitioner that the deed was executed only with a view to take the property out of purview of Rent Control Act, has some force, but on this ground also the Prescribed Authority has to issue notices to the landlords to show cause as to why Prasan Lal Sah was inducted tenant without any allotment and he may be treated unauthorized occupants of premises in question.

At the end learned Counsel appearing on behalf of the Petitioner has submitted that against the order of allotment dated 17.1.2007 two revisions were filed u/s 17 of Act No. 13 of 1972, i.e. revision No. 36/2007 Girish Chandra Joshi v. Naveen Chandra Joshi (of landlord) and revision No. 37/2007l Prasan Lal Sah v. Naveen Chandra Joshi (prospective allottee) and against an order of allotment No. revision would be maintained at the behest of prospective allottee because the principles of audi-alteram partem will not be applicable in the case of prospective allottee as laid down by Full Bench judgment of Allahabad High Court in the case of Talib Hussainand Anr. v. 1st Additional District Judge reported in 1986 (1) A.R.C. 1.

In the above cited case it has been held that right of prospective allottee is not absolute. It arises only after rejection of landlord''s application for release of the accommodation. Prospective allottee comes into picture only after rejection of landlord''s application for release.

The above submission has also No. substance. The landlord has preferred Revision No. 37/2007, Girish Chandra Joshi and Ors. v. Naveen Chandra Joshi and another whereby the order of vacancy order dated 4.5.2007 as well as allotment order dated 17.1.2007 in favour of Naveen Chandra Joshi, have been quashed by the Appellate Court. The tenant Prasan Lal has preferred Revision No. 37/2007 against same order dated 4.5.2007 and allotment order 17.1.2007. Hence it cannot be stated that the landlord has not challenged the allotment order. The order under challenge in this petition is not against only the order passed on the revision filed by Prasan Lal prospective allottee, but also against the order on the revision filed by the landlords.

Further the Hon''ble Apex Court in the case of Achal Mishra v. Ramashankar Singh and Ors. reported in 2005 (1) A.R.C. 877, has held that if the landlord does not assail the vacancy order, even then he has right to file revision against the allotment order u/s 18 of the Act.

For the reasons recorded in the foregoing paragraphs I do not find any perversity or illegality in the impugned judgment and order passed by the revisional court. On the other hand the learned Rent Control and Eviction Officer/Prescribed Authority has committed a manifest error by passing the vacancy order as well as allotting the shop in question in favour of the Petitioner. The revisional court has rightly held on the basis of material on record that at the time when the vacancy order was passed the shop in question was in the tenancy of Chait Ram Chaudhary and after his death the possession was surrendered to the landlord by the legal heirs of Chait Ram after removing the effects of Chait Ram and thereafter the landlord had let out the shop to Prasan Lal and there was No. deemed vacancy of the premises in question.

However, it is made clear that this fact is not disputed that the landlord did not inform the fact that the possession surrendered to the landlord by the legal heirs of late Sri Chait Ram. It was obligatory on the part of landlord to inform the vacancy of premises in question to give intimation in view of Section 15(1) of the Act. Since the Rent Act No. 13 of 1972 was applicable on premises in question, in case if the tenant handover the possession to landlord, the landlord has No. right to give such building on rent. If the provision of Act are applicable on the building the landlord also has a right to move release application after declaration of vacancy and if the need of landlord was not found genuine, the R.C. E.O. may allot the premises to any other person in accordance with the provision of the Act.

Therefore, in view of the above the Prescribed Authority/R.C.E.O. would be at liberty to initiate proceeding denovo to declare vacancy after hearing the parties and landlords as well as the Petitioner.

With the above observations the writ petitions lack merit and are liable to be dismissed.

Both the writ petitions are dismissed.

Let a copy of this judgment be placed in the file of W.P. No. 957(M/S) of 2007.