R. M. Sahai, J. - (1.) IN this allottee's petition the first question that arises for consideration is whether revising authority had jurisdiction to record finding that the order declaring vacancy by the Prescribed Authority was bad as no notice was issued to opposite party landlady as required by rule 8 of the rules under U. P. Act XIII of 1972 (hereinafter referred as the Act) even though his predecessor earlier had set aside the order for this very reason but did not direct the Prescribed Authority to issue notice as the landlady had agreed to appear and contest.
(2.) WHAT happened that petitioner who is in occupation of first floor on vacation of the ground floor of premises in dispute by Chandra Shekhar the tenant applied for allotment. An enquiry was made and the Rent Control Inspector after recording the statement of Chandra Shekhar reported that premises were vacant. The vacancy was notified, thereafter, and it was allotted to petitioner. No notice was given to the landlord. Against this order landlord filed revision. During pendency of revision he transferred the premises in dispute in favour of opposite party no. 3. It was urged before revising authority that as no notice was issued to landlord as required under Rule 8 the order was liable to be set aside. It was held that although ownership had changed but the landlady was only a transferee from the earlier landlord and as no notice was served on him the order could not be maintained. The revising authority therefore directed the Prescribed Authority, to decide the question of vacancy afresh 'as the landlady was' prepared to take such a notice now and even contest the proceedings regarding the vacancy of the accommodation. In pursuance of the direction the Prescribed Authority passed fresh orders and allotted the premises again to petitioner. This order was set aside again because no notice as required under Rule 8 was issued to the landlord. That in doing so the revising authority committed manifest error of law admits of no doubt. It was precisely for this reason that earlier order was set aside. And at the time of setting aside of it the landlady agreed to appear and contest the proceedings for vacancy. The question of issuing notice therefore, did not arise. The landlady was permitted to challenge the claim of petitioner that the premises were vacant. The purpose of intimating the landlord is that the premises may not be declared vacant without knowledge to him, so that in case the landlord desires, he or she may apply for release. The intimation contemplated under these rules is not jurisdictional in the sense that unless the notice is served as contemplated, no proceedings can be taken for declaration of vacancy or allotment. As the landlady admitted before the revising authority that she shall appear and contest the proceedings, it should be assumed that she gave up the requirement of issue of fresh notice to her. The revising authority therefore, committed an error of law in setting aside the order on the basis that fresh notice be issued to the landlady. The order is further erroneous as it amounts to reviewing of earlier order passed by the predecessor. This could not have been done. The finding recorded by the revising authority in respect of the same in revision could not be reopened in subsequent revision filed before the revising authority. Nor was he justified in observing that the order declaring the vacancy was not a speaking order. The report of the Rent Control Inspector was on record. The application given by the petitioner for allotment intimating that premises were vacant was supported by this report. There was no other material which could successfully rebut the report of the Inspector nor any evidence was filed by the landlady even after remand. The mere fact that the Rent Control and Eviction Officer did not discuss the evidence in detail could not render his finding infirm nor could it vitiate the order unless the opposite party is able to satisfy that some material evidence was ignored or on the evidence available on record no reasonable person could have come to a conclusion to which the Rent Control and Eviction Officer arrived. The other and more controversial question is if the finding of revising authority that the order of allotment was vitiated because provisions of Rule 9 were not complied with can be sustained. The revising authority has based his finding on it mainly because he found that no vacancy existed but it has already been seen that one of the reasons for it was erroneous. The other reason was that the order was non speaking order. In recording this finding also he committed error of law because that is not factually correct. And if these two findings cannot be maintained then the finding that the order was in violation of Rule 9 automatically falls. But the learned counsel for opposite party vehemently defended the order and urged that from facts it was apparent that the landlord was not intimated of the date fixed after vacancy was notified. Number of decisions were placed in support of the submission that observance of Rule 9 was mandatory. May be so but the landlady was permitted to contest the allotment proceedings by the revising authority. Argument of notice etc. thereafter became immaterial.
(3.) IN these circumstances, this petition succeeds and is allowed. The order passed by the revising authority is quashed. He is directed to decide the revision on merits in accordance with law. Petition allowed.;