Sibghat Ullah Khan, J. - (1.) THIS is landlord's Writ petition directed against orders dated 18.11.1981 passed by R.C. & E.O. allotting the building in dispute in favour of respondent No. 1 and order dated 4.3.1982 passed by District Judge, Allahabad dismissing the revision which was directed against the said allotment order. An amendment application had been filed seeking to add certain paragraphs in the writ petition and prayer for quashing of order dated 24.1.1981 passed by R.C. & E.O. declaring the vacancy. The amendment application was allowed by this Court on 22.5.2002 against which SLP was filed in the Supreme Court and the Supreme Court through judgment and order dated 3.11.2003 set aside the said order and directed the High Court to decide the writ petition afresh. The premises in dispute is a house bearing No. 21 Hamilton Road (new name A.N. Jha Marg) George Town, Allahabad. Proceedings for allotment were initiated on the allotment application filed by one Shri Parsu Ram Pandey dated 9.9.1980. Rent Control Inspector (R.C.I. in short) submitted his report on 17.9.1980, copy of which is Annexure -2 to the writ petition. At the top of the report description of the property is given as house No. 21, George Town, A.N. Jha Marg, Hamilton Road, Allahabad. In view of this description of the property the argument of learned Counsel for the landlord -petitioner to the effect that at the initial stages of the allotment proceedings it was not clear that the matter pertained to the house in dispute as only house No. 21, George Town was mentioned and George Town consists of several roads is not tenable. According to the report of R.C.I. at the time of his inspection which was done under orders of R.C. & E.O. then main gate of the house was found locked hence it could not be inspected, that at the main gate of the house board of Parikh Narain Anand (late father of the petitioner) was affixed. R.C.I. did not give any opinion about the vacancy. He only mentioned at the bottom of the report that if found appropriate R.C. & E.O. might call the parties to ascertain the correct position. Thereafter on 3.1.1981, R.C. & E.O., Allahabad before whom proceedings for allotment were pending passed an order on the order sheet to the effect that landlord was present and no other party was present. The file was directed to be put up on 24.1.1981 for orders on which date vacancy was declared. Objections were filed by the landlord before R.C. & E.O. copy of which is Annexure -1 to the writ petition. According to the learned Counsel for the petitioner objections were filed on 24.1.1981. According to learned Counsel for allottee respondent No. 1 these objections were inserted afterwards in the file. Annexure -1 to the writ petition which is typed copy of objections does not bear any date. I am unable to accept the arguments of the learned Counsel for the petitioner that objections were filed on 24.1.1981. However, even in the absence of any objections by the landlord R.C. & E.O. could not declare the vacancy without there being any evidence to that effect. The report of R.C.I. only shows that main gate was locked. This by itself does not amount to vacancy. In the order dated 24.1.1981 it is mentioned that landlord has already appeared and he has not raised any objection. The order dated 24.1.1981 does not show that on that date either landlord or any applicant for allotment was present
(2.) ANNEXURE C.A. 2 to the counter affidavit is copy of the order sheet of the case i.e. case No. 344 of 1980 on the file of R.C. & E.O. Allahabad. The order sheet starts from 18.9.1980. It is not clear from the order sheet as to whether R.C.I. inspected the house in dispute and submitted his report dated 17.9.1980 on the direction of R.C. & E.O. Neither from the R.C.I. report nor order sheet nor from any other document it appears that any notice was given to landlord before inspection by R.C.I. On 3.1.1981 it was recorded in the order sheet that landlord appeared and no other party was present and file was directed to be put up for orders on 24.1.1981. From the said order it is not clear as to whether landlord was made aware of the report of R.C.I. or not. In any case it is quite clear that no order directing the landlord to file objection against vacancy was passed. Even if it is assumed that landlord was aware of the report of R.C.I., still there was no need for the landlord to file any reply to the same as in the said report there was nothing to show that there was vacancy of the house in dispute. The report only shows that at the time of inspection the main gate of the house was locked. By no stretch of imagination such type of statement may be taken to be evidence of vacancy. On 24.1.1981 in the absence of landlord vacancy was declared and 31.1.1981 was fixed for consideration and order of allotment. In view of Rule 9 (3) of the Rules framed under U.P. Act No. 13 of 1972 it was essential to issue notice to the landlord so that he could file release application if he so desired. The said rule is mandatory vide Yogendra Tewari v. D.J., Gorakhpur : 1984 (10) ALR 285 (SC). In this regard reference may also be made to the following authorities of the Supreme Court where it has been held that Rule 8(2), requirement of issuing notice before inspection, and Rule 9(3), requirement of issuing notice after declaring vacancy and before allotment are mandatory; 1. Ganpay Roy v. Addl. Dist. Magistrate : 1985 (11) ALR 423(SC). 2. Keshav Devi v. Girdhari Lal : 1986 (12) ALR 660(SC). 3. Tanauwar Nabi Khan v. Rashik Ahmad : 1998 (33) ALR 460 (SC).
(3.) THESE authorities and some other authorities of this High Court in this regard have been considered by me in the judgments R.L. Poddar v. A.D.J. Gorakhpur, 2003 (2) ARC 629, and C.K. Nagarkar v. A.D.J. : 2004 (2) ARC 349.;