E. N. Singh, J. - (1.) :-
(2.) THIS petition is directed against the order of the Rent Control and Eviction Officer, Gorakhpur, dated 16th November, 1978, rejecting the petitioner's application for release of the building in her favour and allotting the premises to respondent no. 3, Rup Narain Singh, and also against the order of the Additional District Judge, Gorakhpur dated July 17, 1979 dismissing the petitioner's revision. The petitioner is owner and landlord of a double storeyed building situate in Mohalla Purdilpur in the city of Gorakhpur. A number of tenants were occupying various portions of the building. One portion of the building on the first floor was in the tenancy of Panna Lal. The petitioner filed a suit for recovery of arrears of rent and ejectment against Panna Lal which was decreed by the trial court. Panna Lal's revision against the judgment and decree of the trial court failed but while rejecting the revision application this court granted four months time to Panna Lal to vacate the premises. Panna Lal was thus required to vacate the premises by 13th July, 1978. On 1-7-1978, Panna Lal informed the Rent Control and Eviction Officer in writing that he has vacated the premises on June 30, 1978, but before that Rup Narian Singh, respondent no. 3 had made an application before the Rent Control and Eviction Officer on 8th June 1978 for the allotment of the premises which was about to be vacated by Panna Lal. On receipt of the intimation from Panna Lal, the Rent Control and Eviction Officer inspected the building and submitted his report on 4-7-1978. In his report, the Rent Control Inspector stated that Panna Lal has vacated the premises and there was vacancy in the premises. On the same day, namely, 4-7-1978, the petitioner also made an application under section 16 (1) (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for release of the premises in her favour. She filed an affidavit and asserted that the accommodation was required for the purpose of opening a clinic which would give peace to the departed soul of her husband. Rup Narain filed an affidavit denying the need of the petitioner. On 6-7-1978 the Rent Control and Eviction Officer declared vacancy and notified the same. After hearing the parties, the Rent Control and Eviction Officer by his order dated 16-11-1978 rejected the petitioner's application for release of the accommodation and allotted the same to respondent No. 3. The petitioner filed two revisions before the District Judge. Both the revisions were disposed of by the Additional District Judge by a common order dated July 17, 1979. Both the revisions were dismissed. Aggrieved, the petitioner has approached this Court by means of this petition. Learned counsel fot the petitioner urged that there was no vacancy and as such the premises could not be alloted to respondent no. 3. Great stress was laid by the learned counsel on the fact that Rup Narain, respondent no. 3, had made his application for allotment of the premises on 8-7-1978 i.e. much before Panna Lal vacated the premises. He urged that Rup Narain's application was not maintainable as there was no vacancy on the date he made the application for allotment of the premises to him. Section 16 confers power on the District Magistrate to pass an order of allotment in favour of a person letting out any building which is vacant or has fallen vacant or is about to fall vacant. The expression "about to fall vacant" contemplates a situation where the building is not actually vacant but is likely to fall vacant in near-future. The application by a person for allotment of a building need not synchronise with the creation of vacancy itself. The legislature intended that an order of allotment could be made in a case where vacancy was likely to take place in a building. Section 16 permits filing of an application for allotment even before the vacancy has actually arisen. In the present case, there was no dispute between the parties on the question of vacancy. As already noted this court had allowed time to Panna Lal till 13th July, 1978, and he was bound in law to vacate the premises by that date. Apart from it, Panna Lal himself gave intimation to the Rent Control and Eviction Officer in writing that he had vacated the premises on June 30, 1978. The Rent Control Inspector who made local inspection submitted his report on 4-7-1978 stating that Panna Lal had vacated the premises. The petitioner also made an application for release of the accommodation on 4-7-1978 on the allegation that Panna Lal was about to vacate the premises. Having regard to all these facts and circumstances, it is difficulti to accept the contention that there was no vacancy or that the application of Rup Narain Singh was not maintainable.
(3.) LEARNED counsel urged that the vacancy was not determined in accordance with law inasmuch as rule 8 (2) was not followed as the Rent Control Inspector did not give any intimation to the petitioner about his local inspection. This question involves investigation of fact. The petitioner never raised this question before the courts below. In the circumstances, it is not open to the petitioner to raise this question for the first time in the present proceedings. Learned counsel for the petitioner then urged that the matter of release of accommodation was between the petitioner and the authorities constitutied under the Act. Rup Narain, a prospective allottee, was not a necessary or proper party and he was not entitled to contest the petitioner's application for release of the accommodation. The courts below committed a patent error in placing reliance on his affidavit in holding that the petitioner's need was not genuine or bona - fide. I agree with the legal proposition raised by the learned counsel for the petitioner that under the provisions of the Act application for release of premises made by a landlord has to be decided by the authorities on the evidence produced by the landlord, and a prospective allottee has no right to participate in the proceedings or to produce evidence or to file objection. It is true that court below have placed reliance on the averments contained in Roop Narain's affidavit in rejecting the petitioner's release application but that by itself is not sufficient to grant relief to the petitioner. The Rent Control and Eviction Officer as well as the Additional District Judge both have held that the accommodation in question which was situate on the first floor of the building was not suitable for the purpose of opening a medical clinic, and as such the petitioner's need did not appear to be bonafide and genuine. It was further held that the petitioner was residing in another house situate in Mohalla Betia Hata in the city of Gorakhpur where her daughter had opened a medical clinic. Even if the affidavit of Rup Narain, respondent no. 3, is ignored, the finding recorded by the courts below are sustainable on the material contained in the report of the Rent Control Inspector dated 27-7-1978. The Rent Control Inspector had clearly stated in his report that while making local inspection, he found that the accommodation was situated in the first floor and that the petitioner was residing in another house situate in Mohalla Betia Hata and that her daughter Smt. Kamlesh Arora was carrying on medical practice in a portion of that house. The report of the Rent Control Inspector was sufficient to sustain the finding of the courts below that the petitioner's need was not bona fide or genuine. Moreover, this objection was not raised by the petitioner before the Additional District Judge in revision. The petitioner is, therefore, not entitled to raise this question for the first time before this Court in a petition under Article 226 of the Constitution.;