N.D. Ojha, J. - (1.) VACANCY in respect of an accommodation was notified on November 9, 1978. From the impugned order of the District Judge, Kanpur, Respondent No. 3 it appears that thereafter a notice was issued to Smt. Ram Rati who was admittedly the landlord of the aforesaid accommodation at that time under Rule 9(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972 intimating her the date fixed for considering the question of allotment of the said accommodation. This notice was served on Smt. Ram Rati on November 18, 1978. She made an application for release of the accommodation in question on November 20, 1978. This application was ultimately rejected by the Rent Control and Eviction Officer on May 9,1979. Thereafter on May 16, 1979 the Rent Control and Eviction Officer passed an order allotting the accommodation in question in favour of Respondent No. 1. On coming to know of this order Smt. Ram Rati made an application on May 23, 1979 for review under Section 16(5) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. This application was dismissed by the Rent Control and Eviction Officer on November 20, 1979. A revision filed by Smt. Ram Rati was dismissed by the District Judge on December 18, 1979. Aggrieved Smt. Ram Rati filed the present writ petition. She died during the pendency of the writ petition and an application was made by Smt. Rajjo Devi for being substituted in her place on the basis of a Will said to have been executed in her favour by Smt. Ram Rati. An order was passed on January 25, 1983 on the said application to the following effect: Heard learned Counsel for the parties. Without deciding the question whether the Will relied on by the applicant is valid and genuine, the applicant is permitted to be substituted in place of Smt. Ram Rati Devi for the purposes of this case. Let the name of Smt. Ram Rati Devi be struck of and in her place the name of Smt. Rajjo Devi be substituted. In pursuance of that order the name of Smt. Rajjo Devi was substituted as the Petitioner.
(2.) IT was urged by counsel for the Petitioner that no notice having been given to Smt. Ram Rati that the application for allotment made by Respondent No. 1 shall be considered on May 16, 1979, the order of allotment passed on that date was liable to be quashed for non -compliance of the mandatory requirement contained in Rule 9(3) of the Rules in this behalf. Having heard counsel for the parties I am of opinion that there is substance in this submission. Rule 9(3) provides: 9. Notice of vacancy.... (3) Immediately after the receipt of intimation of vacancy of any building in the office of the District Magistrate, the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by posting a copy of the list of the vacant buildings on the notice board of that office, specifying therein the date on which the question of allotment will be considered. He shall also issue a notice to the landlord intimating him the date so fixed. On the date so used the District Magistrate shall consider the cases of all applicants registered in the register maintained in Rule 10 and shall pass an order under Section 16 in accordance with Rules 10 and 11. That the requirement of Rule 9(3) of giving a notice to the landlord intimating him the date fixed for consideration of the question of allotment is mandatory admits of no doubt. Counsel for Respondent No. 1 has not disputed this legal proposition and in ray opinion rightly. What has been urged by him, however, is that since a notice under Rule 9(3) had already been served on Smt. Ram Rati on November 18, 1978, it was not necessary to serve any further notice on her about the date on which the application for allotment was to be considered after her application for release was dismissed on May 9, 1979. I find it difficult to accept this submission. The purpose of a notice under Rule 9(3) of the Rules in view of the clear language used therein is to give the landlord an intimation of the actual date on which the application for allotment are to be considered. One of the reasons for laying down the requirement aforesaid in Rule 9(3) appears to be the provisions contained in Section 17(2) of the Act which inter alia provides that where a part of a building is in the occupation of the landlord for residential purpose, or is released in his favour under Clause (b) of Sub -section (1) of Section 16 for residential purposes, the allotment of the remaining part thereof under Clause (a) of the said Sub -section (1) shall be made in favour of a person nominated by the landlord unless for special and adequare reasons to be recorded the District Magistrate allots it to any other person.
(3.) IN the instant case also the order of allotment was sought to be set aside by Smt. Ram Rati on the ground that the provisions of Section 17(2) of the Act were attracted inasmuch as a part of the building was in her occupation for residential purposes and she was entitled to have a tenant of her own choice in the remaining part. According to her since no intimation was given to her about the date on which the applications for allotment were to be considered, she was deprived of her right to make nomination of a tenant of her choice as contemplated by Section 17(2) of the Act. A similar submission had been made before the District Judge but was repelled. It was held by the District Judge that after the application for release was dismissed on May 9, 1979 Smt. Ram Rati had ample opportunity of making a nomination under Section 17(2) of the Act, the order of allotment in favour of Respondent No. 1 having been passed on May 16, 1979. Suffice it to say so far as this view taken by the District Judge is concerned that under Section 17(2) of the Act no time has been fixed within which a nomination is to be made. Obviously the nomination can be made even on the date on which the applications for allotment are to be considered. It may be that in a given case the landlord may not have a tenant of his choice till the date on which his application for release is dismissed and may have a tenant of his choice thereafter. One of the purposes of issuing a notice to the landlord under Rule 9(3) of the Rules intimating him the date fixed for consideration of the question of allotment being to give him an opportunity to make a nomination under Section 17(2) of the Act, the said purpose will be frustrated unless the landlord knows the date on which the application for allotment are to be considered.;