Smt. Leela Wati and Another vs Ram Swaroop and Others

S.U. Khan, J.—Petitioners and Respondent Nos. 2 and 3 are heirs of late Sri Bankey Lal. Late Sri Bankey Lal (since deceased and survived by aforesaid legal representatives) applied for allotment of a shop u/s 16 of U.P. Act No. 13 of 1972 claiming that he was tenant of the shop in dispute since 6.6.1978 with the consent of the landlord (Ram Swaroop, Respondent No. 1 in this writ petition, is landlord). The allotment application was filed in the year 1991 and was registered as Case No. 45 of 1991 on the file of Additional City Magistrate-II/R.C. and E.O., Agra. There is absolutely no explanation as to why after about 13 years late Sri Bankey Lal felt the need of getting the tenancy regularised in the form of allotment order. R.C.I. reported in his report dated 13.2.1991 that at the time of his inspection, Bankey Lal was found doing business in the shop in dispute and he and neighbour told that Bankey Lal was tenant since 6.6.1978 and that he was paying rent for which no receipt was issued by the landlord. It is unique that even after 13 years, neighbours remembered the exact date on which Bankey Lal was inducted as tenant. The R.C. and E.O. by his order dated 25.6.1991, held that the shop in dispute was vacant as Bankey Lal was in possession after 5.7.1976, hence the same was allotted to Bankey Lal. From the perusal of the said order, it is quite clear that R.C.I. before inspection did not intimate the landlord, which was mandatory. From the said order, it is also clear that no formal order declaring vacancy was passed and only the gist of report of R.C.I. was pasted on the notice board. From the said order, it is also clear that until pasting of the gist of R.C.I. report, no notice was sent to the landlord. It is mentioned in the said order that thereafter notice was sent to the landlord which was served through affixation and notice sent through registered post returned with the endorsement that the addressee on seeing the postman went away from the spot and hid himself. Against order dated 25.6.1991, landlord/ Respondent No. 1 filed a review petition u/s 16(5) of the Act stating therein that Bankey Lal was not tenant in the shop in dispute and that he was carrying the business in partnership of the landlord and that no notice was served upon the landlord, which was rejected by R.C. and E.O. on 23.9.2000. Against order dated 23.9.2000, landlord/ Respondent No. 1 filed revision u/s 18 of the Act which was transferred to the Court of Additional District Judge, Court No. 2, Agra. The said revision (R. C. Revision No. 217 of 2000) had been allowed by the order dated 29.8.2002 which is impugned in the instant writ petition. The Petitioners also filed a revision before District Judge numbered as Rent Control Revision No. 66 of 2001 on the ground that review petition of the landlord before R.C. and E.O. was not maintainable. In fact, the said revision was not maintainable, as review petition by R. C. and E.O. had been dismissed. The revisional court held that review petition of the landlord before R.C. and E.O. was maintainable. In my opinion, the said view of the revisional court is quite correct.

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. enquires 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. and 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.

The revisional court has rightly held that notice issued after pasting the gist of R.C.I. report on the notice Board was not served upon the landlord.

Even if the version of the tenant that he was tenant since 1978 is taken to be correct, still he is entitled to allotment as possession of tenant without allotment after July, 1976, is unauthorised and such unauthorised occupant is not entitled to allotment except when landlord agrees to such allotment. In the instant case, landlord since beginning is denying this fact that he inducted Bankey Lal as tenant, hence the shop in dispute cannot be allotted to Bankey Lal.

Accordingly, I hold that the revisional court has rightly set aside the order of R.C. and E.O. passed on review petition of the landlord filed before R.C. and E.O. and rightly allowed the review petition of the landlord filed before R.C. and E.O. and quashed the allotment in favour of the Bankey Lal.

Accordingly, there is no merit in this writ petition and it is dismissed. However, Petitioners are granted six months time to vacate property in dispute provided that within one month from today they file an undertaking before the revisional court to the affect that within the aforesaid period of six months they will willingly vacate and handover possession of property in dispute to the landlord/Respondent No. 1.