S.U.KHAN, J. - (1.) THIS writ petition shows the high handedness of respondent No. 3 who got the house in dispute allotted in his favour surreptitiously and ejected the landlord who was residing in the house. This is simply house grabbing. The landlord had obtained possession of the house from the previous tenant after a long drawn litigation on the ground of bona fide need. The revisional Court also refused to provide remedy against the aforesaid illegal and unjust action and dismissed the revision as barred by time. Normally in such circumstances if the Court is of the opinion that delay condonation application in revision was wrongly rejected, the matter is sent back to the revisional Court for decision of revision on merit. However, in the instant case I find the action of Rent Control and Eviction Officer (in short RC and EO) to be not only illegal and without jurisdiction but amounting to mockery of law hence instead of remanding the matter to lower revisional Court, in this writ petition validity of order passed by RC and EO is adjudicated upon directly. The orders of RC and EO have also been challenged in the instant writ petition.
(2.) THE landlord-petitioner is the son of Ghewar Lal Poddar (in short G.L. Poddar). According to the petitioner, his father G.L. Poddar purchased the disputed house alongwith the adjoining land in auction sale dated 25-1-1956 under Section 20 of Displaced Persons Compensation and Re-habilitation Act, 1954. The sale was confirmed and sale certificate was issued on 20-12-1961. One Tara Chand was tenant of the property in dispute against whom G.L. Poddar filed application under Section 3 of Old Uttar Pradesh Temporary Control of Rent and Eviction Act, 1947 on the ground of bona fide need. It was asserted in the said application that G.L. Poddar was residing in a tenanted house. Permission was granted and thereafter, suit was filed against Tara Chand on the basis of the said permission being Suit No. 699 of 1964. Suit was decreed, First and Second Appeals were dismissed and in execution of decree G.L. Poddar obtained possession on 26-7-1973. As possession had been delivered in pursuance of decree passed on the ground of bona fide need hence there was absolutely no question of getting the building further released by G.L. Poddar under Section 16 of the New Act i.e. U.P. Act No. 13 of 1972. According to the further allegation of the petitioner in a part of the property purchased by G.L. Poddar and got vacated by him from previous tenant Tara Chand picture hall was constructed and in the remaining portion G.L. Poddar started residing alongwith his family. It appears that after 15 years respondent No. 3 filed application for allotment on the ground that the building having been vacated by previous tenant was vacant. Even the name of the outgoing tenant was not mentioned. Annexure 6 is the copy of the order sheet of RC and EO, Gorakhpur. The very first order sheet dated 29-7-1988 states that “received report of rent control Inspector issue noticing fixing 6-8-1988”. From the said first order on the order sheet and RCI report dated 9-7-1988 Annexure XV it is apparent that no notice was issued before inspection by Rent Control Inspector, which was mandatory in view of Supreme Court Authority reported in 1984 (2) ARC Page 7. The entire proceeding and consequent orders are liable to be quashed on this ground alone. The next order on the said order sheet dated 6-8-1988 states that “applicant is present. Landlord is not present. Notice served upon landlord through affixation. Put up on 12-8-1988 for vacancy order.” Under Rule 28 modes of service of notice are provided. The first is by giving or tendering it to such person concerned or his Counsel the second by giving it to audit members of family of person concerned the third is by leaving it at his last known place the fourth is if none of the means aforesaid is available by affixing it. It is clear that before resorting to the 4th (d) mode of service the other three modes are to be exhausted and the authority or the Court concerned is required to record in writing its satisfaction that the earlier three modes were resorted to but failed to yield any result. In the instant case there is nothing on record that any such thing was done. On 12-8-1988 vacancy was declared and on 20-8- 1988 it was allotted to respondent No. 3. After declaring vacancy and affixing its gist on the notice board notice under Section 9(3) was not issued to the landlord, which again was mandatory and vitiated the entire proceedings and subsequent orders. Apart from the aforesaid authority of the Supreme Court reported in 1984 (2) ARC 7: AIR 1984 SC 1149, it has been held in the following authorities that both the Rules i.e. Rule 8 (2) and Rule 9 (3) are mandatory and if notice is not issued either before inspection by RCI or before passing allotment order by RC and EO then the entire proceedings and culminating orders are illegal and without jurisdiction : (1) AIR 1985 SC 1635 (2) AIR 1987 SC 22 (3) AIR 1998 SC 2262 (4) 1991 (2) ARC 204 (5) 1995 (2) ARC 79 (6) 2001 (2) ARC 274
(3.) ON 1-3-1989 on coming to know about the allotment proceedings petitioner filed application on the same day before RC and EO seeking two weeks time to file objection. RC and EO granted the time to file objection. On 2-3-1989 stay application was filed. On 14-3-1989 petitioner filed objections before respondent No. 2 EC and EO on which 15-4-1989 was fixed. Thereafter, on 18-3-1989 RC and EO issued Form 'C' and Form 'D' was issued on 13-4-1989. On 15- 4-1989 landlord and his family was dis-possessed and possession was handed over to respondent No. 3. It is inconceivable as to how it could be done when on 14-3-1989 petitioner had filed objection and 15-4-1989 had been fixed for the disposal of the said objections there was absolutely no need to show haste and deliver possession. The allotment order had been passed about seven months before hence there was no harm in waiting for few more weeks before delivering possession. In any case if there was any hurry on the part of RC and EO then he should not have fixed the date on the objections of G.L. Poddar after a month. This clearly shows that RC and EO wanted to deliver possession by keeping the landlord in dark deliberately. Such a conduct of RC and EO cannot be condoned and strict action against him would have been called for. However, as more than 14 years have already elapsed hence no useful purpose will be served by pursuing the matter regarding action against the concerned officer. On 27-4- 1989 revision was filed by G.L. Poddar against allotment order dated 20-4-1988 alongwith application for condonation of delay, which was registered as civil revision No. 68 of 1989. Vth Additional District Judge, Gorakhpur by order dated 21-12-1993 rejected the revision on the ground that no sufficient cause for condoning the delay had been made out and that objections/review of landlord were pending before RC and EO. Pendency of review/restoration is a good ground for condoning the delay but not for dismissing the revision/appeal.;