R.R.K.Trivedi - (1.) IN this writ petition, by order dated 3rd January, 1992 petitioner was directed to serve respondent no. 1 personally as well as by registered notice through office. Petitioner has filed an affidavit of service which shows that the notice was tendered for acceptance on 13th January, 1992 but she refused to accept the notice. The notice was also sent by registered post by office. The notice was sent on 19th January, 1992 fixing 13th July, 1992. The notice of acknowledgement has not been received back unserved. IN the facts and circumstances service is deed sufficient on the respondent no. 1.
(2.) THIS petition has been filed challenging order dated 27th November, 1991 passed by learned I Additional district Judge. Aligarh in Appeal No. 4 of 1991 by which application of petitioner, for allotment of the accommodation in dispute after reconstruction, has been dismissed. Facts giving rise to this writ petition ate that the landlady respondent no. 1 filed an application under section 21 (1) (b) of the U. P. Act No. 13 of 1972, here-in-after referred to as 'Act', for release of the accommodation in dispute and for demolition and reconstruction. Her application was allowed by Prescribed Authority by order dated 11th April, 1982. The release application was filed against original tenant late Gyan Chand who died during the pendency of the application and after his death his heirs including petitioner were brought on record Against order of the Prescribed Authority dated 11 th April, 1982, only petitioner filed appeal which was decided on basis of the compromise entered into between petitioner and respondent no. 1. A copy of the compromise has been filed as Annexure 1 to the writ petition. The appeal was decided in terms of tbe compromise by order dated 21st January, 1987. The possession of the shop in dispute was actually handed over by petitioner on 21st May, 1990 to respondent no. 1 for reconstruction. The reconstruction was about to be completed when petitioner served a notice on respondent no. 1 dated 7th July, 1990 calling upon her to inform about the date by registered post for delivery of possession within a week from the receipt of the notice, it was also mentioned that If possession is not delivered the proceedings shall be initiated before the competent court. As possession was not given to the petitioner, he filed an application for allotment before the Rent Control and Eviction Officer/Additional District Magistrate (civil supplies), Aligarh on 20th July 1990. The application is Annexure-6 to the writ petition. The respondent no. 1 filed a written statement opposing the aforesaid application of petitioner in which she raised various pleas. In support of their pleadings, parties filed affidavits. The Rent Control and Eviction Officer after hearing both the parties allowed application of petitioner for allotment by his order dated 8th March, 1991. In this order, respondent no. 1 was directed to hand over possession of the shop on basis of the compromise entered into between the patties after raising partition wail. It would not be out of place to mention that before demolition there were three shops one was occupied by landlady, another was occupied by petitioner and third shop was occupied by another tenant Kailash Chandra. It appears that respondent no. 1 had constructed one shop and there was no partition wall. Rent Control and Eviction Officer therefore, directed to partition the shop which was necessary for delivery of possession to petitioner. It was also directed that the tent shall be calculated on basis of the expenses incurred in constructing the shop. This order of Rent Control and Eviction Officer, Aligarh was challenged in appeal by respondent no. 1 which was allowed by respondent no. 2 by order dated 27th November, 1991 against which present petition has been filed. I have heard learned counsel for the petitioner. A already stated that in spite of the service no body has but in appearance for the respondent no. 1. Appellate authority has set aside the order of allotment and dismissed the application of petitioner on three grounds. The first ground taken by the appellate authority is that the building was completed on 18th June, 1990 and as the application was filed by petitioner for re-allotment on 20th July, 1990 which was filed two days beyond time as provided under Rule 20 of the Act, the application was thus time barred and is liable to be rejected. The second ground taken by the learned appellate authority is that all the heirs did not claim for allotment tad it cannot be allotted In favour of petitioner alone. The third Infirmity noticed by the appellate authority in the order of allotment is that the Rent Control and Eviction Officer has directed the land lady to raise partition wall for which he had no authority In law.
(3.) LEARNED counsel for the petitioner has submitted that on 7th July, 1990 petitioner had already served a notice on respondent no 1 to hand over possession and to intimate the date within a week for handing over possession of the shop. This application was referred to in the order of the Rent Control and Eviction Officer. It was also mentioned in Paragraph no. 12 of the affidavit filed by petitioner in support of his application for allotment The application for allotment was filed immediately thereafter on 20th July 1990. The appellate authority without taking into consideration this notice has illegally held that the application of petitioner was time barred. Learned counsel for the petitioner has also stated that the petitioner could not have any information of the intimation given by the respondent no. 1 about completion of the building to the municipal authority and if this date is taken to be a date of completion the great injustice shall be caused to the prospective allottees of the building which was vacated by them in good faith for being demolition and reconstruction. Rule 20 which is relevant for the purposes is being quoted below : "Application for re-allotment (Section 24 (2) (1) An application by a tenant under sub-section (2) of section 24 or allotment of a new building or any one of them shall be made within one month from the date on which the construction of the building sought to be allotted Is complete. (2) The application shall also state the extent of the tenant's requirements regarding accommodation. , Explanation-In this rule the date of completion of construction has the same meaning as in the Explanation (a) of sub-section (2) of section 2". Explanation (a) to sub-section (2) of section 2 of the Act provides two dates, firstly the date of completion reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates. It further provides that in the absence of any such report, record or assessment, the date on which it is actually occupied In my opinion, the date of completion under Rule 20 cannot be given effect unless its notice is also given to the tenant. If Rule 20, as it stands is enforced literally, it may result In irreparable harassment and prejudice to those who claim re-allotment under section 74 of the Act It can be easily defeated by giving intimation to the local authority secretly about which the tenant may not have any notice. Even without completion of the buildings notice for completion may be given and which may be acted upon by the local authority. The intention of the law cannot be such The purpose and object behind Rule 20 appears that, after completion of the building, tenant should promptly act, so that landlord may not suffer loss of rent, after incurring investment in raising new construction Rule 20 should therefore be interpreted in such a manner that it may act lose its purpose and object and at the same time it may not defeat the purpose behind section 24 of the Act which preserves a valuable right and claim of tenant regarding allotment of building after demolition and reconstruction. In the circumstances, the completion of the building if reported to the local authority, the landlord should also inform tenant simultaneously sailing upon him to take steps for allotment and, in case, in spite of suoh intimation the application is not moved by tenant for allotment under sub section (2) of section 24 of the Act within 20 days, he may be deprived of this valuable right.;