S.C.Verma - (1.) THE petitioner is aggrieved by the order of the First Additional District Judge, Allahabad dated 24-3-1987 in Rent Control Revision No. 40 of 1987.
(2.) THE facts relating to the case are that in respect of premises No. 79, Bai Ka Bagh, Allahabad, vacancy was declared by the Rent Control and Eviction Officer by order dated 6-11-1979. THE disputed house was allotted in favour of the petitioner by order of allotment dated 16-11-1979 and in pursuance thereof the petitioner received possession. THE outgoing tenant Seth Mangal Das and the alleged landlord Sri Ramesh Chandra Agarwal filed review petition under section 16 (5) of U. P. Act 13 of 1972, hereinafter referred to as the Act, on 2-12-1979 challenging the order declaring vacancy and the order of allotment. THE review petition was rejected by the Rent Control and Eviction Officer by order dated 30-7- 1980. Sri Ramesh Chandra Agarwal filed revision against the order dated 30-7-1980 under section 18 of the Act being Rent Control Revision No. 186 of 1981. THE learned Vllth Additional District Judge by order dated 1-1-1983 set aside the order of allotment dated 16-11-1979 and remanded the case to the Rent Control and Eviction Officer for passing fresh allotment order after hearing the landlord and the petitioner. It may be stated that the order declaring the vacancy was not set aside During the pendency of the proceedings before the Rent Control and Eviction Officer after remand, one Smt. Nirmala Devi purchased the disputed house from Ramesh Chandra Agarwal by registered sals deed dated 13-1-1983 for Rs. 20,000/- Smt, Nirmala Devi filed a release application under section 16 (1) (b) of the Act on 26-1-1983. During the hearing of the case, the petitioner raised a preliminary objection that the disputed house is a Government property and Smt. Nirmala Devi was not the landlord- THE petitioner submitted documents consisting of notices by which the District Magistrate has prohibited the transfer of the disputed house and it was claimed to be the property belonging to the state. THE landlord contested this objection but the Rent Control and Eviction Officer, on the basis of the material on record which also included proceedings initiated against the tenant's eviction under the provisions of U. P. public premises (Eviction of Unauthorised Occupants) Act in which the disputed property was claimed to be public premises, held that Smt. Nirmala Devi is not the owner landlord of the disputed house and on the basis of prima facie satisfaction the property appears to be of the State THE Rent Control and Eviction Officer, in these circumstances, held that the provisions of U.P. Act 13 of 1972 would not be applicable on the disputed house and the application for allotment or release can not be considered. Smt, Nirmala Devi filed revision, under section 18 of the Act which has been allowed ex parte behind the back of the petitioner and the order dated 17-1-1987 has been set aside and the application for release filed by Smt. Nirmala Devi has been allowed. This order dated 24-3-1987 has been impugned in the present writ petition. The learned counsel for the petitioner submitted that apart from the merits of the case, the impugned order which has been passed ex parte behind the back of the petitioner is required to be set aside on the ground that the notice of Revision No. 40 of 1987 was not served in accordance with law and they had no knowledge of the present revision The learned counsel pointed out from the endorsement of service of notice which has been filed as Annexure '4' to the writ petition that even though the petitioners were impleaded as a party and notices were issued for service on them, the process server has indicated in the endorsement, that on enquiry from the family members orally, he was told that Sri K. K. Tewari is in service at I. T. I . Naini and he is on duty and as such was not available and a copy of the notice was affixed on the; disputed house. There was no witness at the spot. This service of notice has been treated to be sufficient by order dated 24-3-1987 and the case was heard ex-parte and the judgment was dictated the same day. The leaned counsel for the petitioner brought to my notice the provisions of Rule 28 of the Rules framed under the Act which are quoted below :- "28. 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 such person is found., by leaving it at his last known place of abode or business 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." The learned counsel submitted that the process server while effecting service did not resort to the method of service as provided under subclauses (a), (b) or (c) but has resorted to the process indicated in subclause (d) straightway which would be in contravention of the provisions of the Rules. In support of his argument, the learned counsel placed reliance on the case Dr. Om Prakash Trivedi v. VlIl Additional District Judge, Agra, 1988 (1) ARC 45. The argument appears to have substance. The provisions of Rule 28 provides for various modes of effecting service of notice which are given in serial order. The provision requires th?t the process server will first resort to the: first method by giving or tendering it to such person or his counsel or by giving or tendering it to any adult member of his family and having failed in his effort to effect service by the aforesaid method, then only he would take resort to service by affixation. In the endorsement note by the process server, it has come on record that family members were present. The: process server, instead of tendering the notice to any family member lias taken recourse to the method of affixation. The service of notice for the aforesaid reasons can not be treated to be a valid service in accordance with law.
(3.) THE learned counsel for the respondent urged that the petitioners being prospective allottee, they had no say in the matter because even if they were impleaded as a party to the revision, the non-service of notice would not affect the validity of the onder. This argument can not be accepted for the reason that the respondent had impleaded the petitioners as party in the revision and the notices were issued which were required to be served in accordance with law. It may be: that they may not be allowed to contest in the consideration of the release application but in the present case, the revision was directed against the order of the Rent Control and Eviction Officer dated 17-1-1987 which was passed on remand to consider the allotment application of the petitioner. By order dated 17-1-1987 the Rent Control and Eviction Officer did not consider the allotment application as also the release application on the ground that the provisions of the Act would not be applicable In these circumstances, the petitioners are aggrieved persons and necessary parties and the notice was required to be served on them. The learned counsel for the petitioner further submitted that the learned I Additional District Judge committed manifest error of law in allowing the release application under section 18 of the Act of the respondent no. 2 when there was no order for release of the accommodation in her favour, passed by the Rent Control and Eviction Officer under section 16 (1) (b) of the Act. It was also alleged that in consideration of the allotment proceeding on remand before the Rent Control and Eviction Officer, the subsequent transferee landlord can not shelf for the first time a release application which was not liable to be entertained in those proceedings. This contention is also liable to succeed. The learned I Additional District Judge was exercising powers under section 18 of the Act under which he was only required to exercise revisional powers as to whether in the order passed under section 16 (1) (b) there was any error of jurisdiction or not. The Learned District Judge can not, in excise of power under section 18, straightway consider the release application of the landlady under section 16 (1) (b) and allow the same even though no orders were passed by the Rent Control and Eviction Officer under section 16 (1) (b). It is established from the order of the Rent Control and Eviction Officer dated 17-1-1987 that no order for release of the accommodation was passed under section 16 (1) (b).;