Vikram Nath, J. - (1.) THIS writ petition is directed against the order dated 27.5.1986 and 28.5.1986 whereby Rent Control Eviction Officer directed for notifying vacancy and inviting application for allotment in respect of first floor accommodation of the residential premises being situate in Tikonia Bagh Khirni, Shahjahanpur. The petitioner is the owner and landlord of the building in question. Ground floor accommodation was let out and was m occupation of Prem Kishan Khanna The petitioner who was in Government service has been retired at the age of 58 years and came in his residential house after getting three rooms constructed on the first floor just prior to his retirement. It is alleged that the petitioner is residing in the first floor accommodation since November, 1977. It is further alleged that the petitioner has never let out the first floor accommodation and it has throughout been in his use and occupation from the time of construction. On the ground floor the tenant of the petitioner who was not happy with him got two applications filed for allotment of first floor premises, which was being used by the petitioner for residential purposes. The application was filed by one Sri Madan Pal Singh. On the said application report was called from the Rent Control Inspector, who submitted a report date 27.5.1986 stating that on inspection it was found that the first floor premises was lying locked and he was informed that the same were vacant for quite a long time. It was also reported that the landlord (petitioner) was not residing in the premises in dispute but was residing in Delhi. On these facts, the inspector recommended for declaring vacancy. The said report has been filed at Annexure -1 to the petition and on the said report an endorsement was made by the Rent Control Eviction Officer, which is as follows: Report seen. Notify vacancy. Sd/illegible25.5.1986 Annexure -2 is again order of the Rent Control Eviction Officer with the heading "Riktata Suchna" and it be just follow: Rikta Suchna (Pertaining to Residential Accommodation -Tikonia Bagh Khirni, Shahjahanpur -first floor accommodation) Applications invited for allotment upto 2nd June, 1986 Sd/ -IllegibleR.C.O.28.5.1986 This order has been challenged before this Court and ibis Court vide order dated 20.10.1986 has admitted the petition and had passed an interim order as follow: Issue notice. Until further orders, further proceedings in case No. 2353 -Rent Control and Eviction Officer, 86 pending in the Court of Rent Control Eviction Officer, Shahjahanpur shall remain stayed.
(2.) DURING the pendency of the petition an application has been filed by the petitioner stating that the applicant for allotment, Madan Pal Singh was shot dead in the year 1988 and prem Kishan Khanna the ground floor tenant has also died. It is further stated in para 5 of the application dated 15.9.2004 that both Madan Pal Singh and Prem Kishan have died. This application is supported by an affidavit of Pairokar. There is also another affidavit as stated by Sri Bhalla counsel for the original petitioner dated 15.11.1989 in which it has been stated that Madan Pal Singh died of gun shot injury on 5.11.1988. I have heard Sri R.N. Bhalla, learned Counsel for the petitioner. No one has appeared for the respondent apparently for the reason as they have died issue less and would not be interested in defending their case in as much as the proceeding for allotment was stayed in 1986.
(3.) THE contention of Sri Bhalla, counsel for the petitioner is that the Inspector did not give any notice to the landlord before making any inspection as such inspection report was vitiated in law. Consequently order of the Rent Control Eviction Officer declaring vacancy is also vitiated in law. Rule 8(2) of Rule, 1972 specifically provides that the inspection is to be made by the Inspector in the presence of the landlord and the tenant or any other occupant. For fulfilling this obligation, notices to all of them would be imperative by the Inspector otherwise it is not possible to have made the inspection in the presence of party. In the present case, the Rent Control Inspector in his report dated 25.7.1986 has reported that the first floor accommodation (the dispute accommodation) was found locked and only on ground floor Sri Khanna was found present. The Inspector did not mention in his report that he has issued notice to the landlord intimating about the date of inspection. The inspection held by the Inspector was without notice and in absence of the landlord. Thus there was no compliance of Rule 8(2) of the 1972 Rules. No reliance could be placed upon the report, which was made without following the procedure prescribed under Law. Thus the order declaring vacancy cannot be sustained in law and is set aside. In support of his contention Sri Bhalla, counsel of the petitioner relied upon a decision of this Court in the case of Gopal Krishna Awasthi v. District Judge, Allahabad and others : 1986 (1) ARC page 254, in which it has been held that order declaring vacancy without notice to the landlord is bad and cannot be sustained in law.;