Sibghat Ullah Khan, J. - (1.) DESPITE sufficient service as held by order of this Court dated 11.8.2005, no one has appeared for the respondent No. 3 allottee. Heard learned Counsel for the landlord -petitioner.
(2.) DEEP Kumar Gupta, respondent No. 3 filed allotment application in respect of house in dispute under section 16(1)(a) of U.P. Act No. 13 of 1972 R.C.I. submitted its report dated 11.11.1991. According to the said report Chandra Mohan Mathur, who was admittedly the tenant of the house in dispute, informed the R.C.I. in writing that he was going to vacate the house. On the basis of the said report vacancy was declared on 18.11.1991. Copy of the order of declaration of vacancy has not been annexed with the writ petition. Thereafter, R.C. & E.O./Addl. City Magistrate (VI) Kanpur Nagar allotted the premises in dispute to respondent No. 3 through order dated 30.11.1991 passed in Case No. 126 of 1991. Deep Kumar Gupta v. Smt. Phool Mati Devi. The notice, which was sent to landlord before declaring vacancy to show cause, appears to have been served by process server by affixing on the door of the house. Process server noted that he could not find Smt. Phool Mati Devi, the landlady, hence he affixed the notice on the door of the house. It is also mentioned in the said report that some family member of Smt. Phool Mati Devi met process server, who read the notice but his relationship with Smt. Phool Mati Devi was not mentioned by process server. Similarly on the notice which was issued under Rule 9(3) of the Rules framed under U.P. Act No. 13 of 1972 after declaration of vacancy and before allotment order, process server reported that he could not find Smt. Phool Mati Devi. He met some resident of the house of Smt. Phool Mati Devi. (Ghar Waley) who enquired about the notice and stated that whatever was required to be said on her behalf would be said in the Court. Thereafter, according to the process server he affixed the said notice also on the door. These facts are mentioned in the order of R.C. & E.O. dated 12.1.1998, copy of which is Annexure -5 to the writ petition. In the allotment order dated 30.11.1991 R.C. & E.O. observed that inspite of sufficient service landlady did not appear. However, from the record it is clear that none of the two notices was served on the landlady. In view of the aforesaid report of process server it was mandatory for the R.C. & E.O. to send notices to the landlady through registered post under Rule 28(2) of the Rules framed under the Act. The Court is unable to understand as to what was the urgency on the part of R.C. & E.O. to conclude the proceedings hurriedly. It is a wonderful thing that respondent No. 3 on 5.12.1991 intimated R.C. & E.O. that he had obtained possession through silent consent of the landlady. This clearly shows that the out going tenant delivered possession to respondent No. 3. The possession was illegally handed over by out going tenant to respondent No. 3 directly and R.C. & E.O. legalized the illegality. R.C. & E.O. in the allotment order did not fix any rent, which was mandatory under section 16(9) of the Act. By virtue of definition of lease provided under section 105 T.P. Act there cannot be any lease without rent on cash as kind. Thereafter, petitioner filed review before R.C. & E.O. under section 16(5) of U.P. Act No. 13 of 1972. The said review application was registered as Case No. 39 of 1995. The application was rejected on 12.1.1998. Against the said order petitioner filed Rent Revision No. 19 of 2000. The revision was filed after the expiry of period of limitation along with application for condonation of delay which was allowed. However, the Revisional Court dismissed the revision through judgment and order dated 20.4.2004, hence this writ petition.
(3.) FROM the narration of the above facts it is quite clear that it is a case of house grabbing (even formal possession was not sought to be obtained by requiring R.C. & E.O. to issue form C and D). This clearly proves that out going tenant delivered the possession to respondent No. 3 directly. According to the own allegation of respondent No. 3 the landlady did not deliver possession to him. Only allegation is that by her implied consent (Mook Sahamati) possession was obtained by allottee. Even otherwise it was the duty of the out going tenant to intimate landlord about his intention to vacate (section 15(2) of the Act) and deliver possession directly to the landlord at the time of vacation. Allottee can take possession only from landlord and not from the out going tenant.;