- (1.) S. U. Khan, J. This writ petition arises out of release/allotment proceedings under Section 16 of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act ). The Rent Control and Eviction Officer (for short RC and EO) allotted the house in dispute to the petitioner on 16-5-1983 and released the same after three days i. e. on 19-5- 1983 to landlord respondent No. 2 (since deceased and survived by L. Rs. ). Thereafter, both the parties filed Review Applications under Section 16 (5) of the Act. Petitioner-allottee sought cancellation of release order while landlord-respondent No. 2 sought cancellation of allotment order in favour of petitioner. RC and EO/acm II, Kanpur by order dated 27-10-1984 passed in Rent Case Nos. 1076 of 1980 and 58 of 1983 regarding premises No. 51/56a old, New 51/99-103 decided the matter in favour of allottee-petitioner and held that the landlord was not entitled to release after passing of the allotment order. However, a minor relief was granted to the landlord by releasing a small portion. Landlord filed two revisions against the said order of RC and EO dated 27-10-1984 i. e. Rent Revision No. 296 of 1984 and Rent Revision No. 297 of 1984 respectively. 1st Additional District Judge, Kanpur allowed both the revisions by his judgment dated order dated 8-3- 1991 and cancelled the allotment order in favour of the petitioner as well as that part of the order dated 27-10-1984 through which earlier release order passed in favour of landlord had been modified. From the perusal of Annexure 2, which is, the order of RC and EO dated 27- 10-1984 passed on Review Applications of both the parties it is clear that the allotment application was made on the ground that accommodation was likely to fall vacant. The order dated 27-10- 1984 passed by S. S. Sengar, ACM II/rc and EO Kanpur is nothing but a mockery of law. In the said order it is stated that landlord concealed the fact that his release application was pending when allotment order was passed as in case he had intimated the RC and EO about the pendency of release application then the petitioner-applicant would have contested the release application. An applicant for allotment has got absolutely no right to contest the release application. In any case release application must have been in the same file in which allotment application was placed, hence there was absolutely no question of concealment of the said fact. It is clearly a case of collusion between RC and EO and the allottee. RC and EO deliberately did not refer to the pending release application in the allotment order as otherwise the allotment order on the face of it would have appeared to be without jurisdiction and result of collusion. While considering allotment application the first thing which is to be seen by R. C. and EO is as to whether there is any release application available in the file or not. RC and EO in his order held that the allottee was in possession hence landlord must be held to be aware that the building had been allotted to the petitioner (since deceased and survived by LRs. ). The relevant portion of the order by RC and EO Sri S. S. Sengal ACM II dated 27-10-1984 is quoted below: "in all fairness he was expected to contest the allotment proceedings saying that the release application is pending but no objection has been filed, though he has knowledge of occupation of Ram Supmer, as will be evident from the application of landlord under Section 16 (5) filed on 25-5-1983 only after six days of the release order dated 19-5-1983 in which he specifically desired possession to be delivered to him from Ram Sumer and stating that the tenant passed illegal possession of Ram Sumer. This shows that during the pendency of the release petition, he had knowledge of occupation of Ram Sumer, but he deliberately has not impleaded him to avoid contest. "
(2.) THE RC and EO was aware that Ram Sumer was in illegal occupation still the house was allotted to him. In any case by virtue of Rule 14 if the building is allotted in anticipation of vacancy possession cannot be delivered without holding an enquiry that it had fallen vacant. In this regard reference may be made to a recent authority of Uttranchal High Court interpreting the said Rule reported in 2003 (2) ARC Page 272. Copy of inspection report by Rent Control Inspector dated 11- 4-1983 is annexed as Annexure CA 1. In para 3 thereof it is mentioned that tenant expressed the intention of vacating the premises in near future. In para 1 of the report it is mentioned that he was told that Ram Prasad and others were landlord who could not be contacted at the time of inspection. It may be mentioned that at the relevant time it was not Ram Prasad but his father Dhani Ram who was the landlord. In any case from the report it is clear that no advance notice before inspection was given. This fact itself vitiated the entire proceedings. In the order passed by RC and EO it was mentioned that the vacancy was notified on 11-4- 1984. From the record it is quite clear that no notice was issued before notifying the vacancy and that there is no order declaring the vacancy. From the said order it appears that after notifying the vacancy on 11-4-1984 notice was issued to Ram Prasad which is alleged to have been served upon him. In my opinion the entire proceeding of allotment was vitiated on the following grounds: (a) No notice before inspection was issued to the landlord. (b) No order declaring vacancy was passed. (c) No notice was issued to the landlord before notifying the vacancy. (d) After notifying the vacancy notice was issued to the son of the landlord treating him to be the landlord and not to the landlord. (e) No notice was issued to the out going tenant. (f) No order was passed indicating the satisfaction of RC and EO that the building was likely to fall vacant. (g) Building was allotted to Ram Sumer who was rank trespasser. (h) Allotment order was passed without disposing of the release application in violation of Rule 13 (4 ). (i) No enquiry whether building had actually fallen vacant or not after passing the allotment order was held by RC and EO as required by Rule 14. (j) While deciding question of release through order dated 27-10- 1984 passed on review applications of both the parties petitioner-applicant (allottee) was permitted to contest and his need was taken into consideration. (k) In the order dated 27-10-1984 one small room was released to landlord and the bigger room was not released and was permitted to be retained by petitioner applicant for allotment on the ground that there was likelihood of misuse of the same by the landlord. (It is not understandable as to how a landlord may misuse his own accommodation and the tenant may only use the accommodation allotted to him ). Accordingly, it is held that the allotment order dated 16-5-1983 in favour of the petitioner was wholly void ab initio. The order passed by RC and EO dated 27-10-1984 to the extent it was in favour of allottee and against the landlord was also illegal and was rightly set aside by the revisional Court.
(3.) THE writ petition is dismissed. RC and EO is directed to put the respondents in possession within one month from the date of production of a certified copy of this order before him failing which strictures may be passed against him also like his predecessor Shri S. S. Sengar. THE possession of the petitioner has been held to be absolutely illegal hence exemplary costs in the nature of damages are imposed upon the petitioner at the rate of Rs. 500/- per month since the date of allotment in his favour i. e. 16-5-1983 till the date on which possession is delivered to the landlord. However, in case petitioner willingly hands over possession of the property in dispute to the respondents within a month from today then he would be liable to pay only half of the cost as aforesaid. Before parting with the case it is essential to take notice of utter misuse of the provisions of Section 16 particularly in big cities with Kanpur topping the list. The Court in order to put a check on the said misuse in Jagdish v. District Judge, Kanpur Nagar and others (decided by Hon'ble A. K. Yog, J.) reported in 2002 (1) LBESR 582 (All); 2002 (1) ARC 1927, directed that in every case vacancy must always be published in two News papers of repute having wide circulation in the concerned city/district before proceeding with allotment/release proceedings under Section 16 of the Act in future (para 20 ). The reason for giving this general direction was mentioned in para 17 of the said authority which is quoted below: "at this juncture Court takes note of the fact that the existing provisions of the Act declaring vacancy have failed to achieve the desired object and publication on Notice Board of the office Rent Control and Eviction Officer is an eye wash entering in itself pitfalls to be exploited to ensure that concerned have no notice of the vacancy. ";