- (1.) S. U. Khan, J. Both these writ petitions are directed against judgment and order dated 26-5-1997 passed by Vth Additional District Judge, Kanpur Nagar in three rent revisions being Rent Revision Nos. 39, 40, and 41 of 1996. Revision Nos. 39 and 41 were filed by the landlady petitioner Savitri Devi Rohatgi. First writ petition is directed against the judgment of the Revisional Court in Rent Revision No. 39 of 1996 and the second writ petition is directed against judgment of the Revisional Court in Rent Revision No. 41 of 1996. Revisions field by landlady petitioner were directed against orders dated 19-6-1996 and 21-6- 1996 passed by R. C. & E. O. Through the first order release application of the landlady under Section 16 of U. P. Act No. 13 of 1996 had been rejected by R. C. & E. O. and through the second order building in dispute had been allotted to Laxmi Narain Tandon respondent No. 3 in the said writ petitions. Third revision before Vth A. D. J. i. e. Rent Revision No. 40 of 1996 was filed by one Rajendra Singh and was directed against allotment order in favour of the respondent No. 3 dated 21-6- 1999. All the three revisions were decided by Vth A. D. J. by a common judgment. Sri Rajendra Singh was successful applicant for allotment. He has not pursued the matter further after the decision of Revisional Court in as much as he has not filed any writ petition against the judgment of the Revisional Court.
(2.) BUILDING in dispute was initially allotted to respondent No. 3 through order of R. C. & E. O. on 31-8- 1991. The said order was subsequently challenged in revision and thereafter in writ petition and ultimately, it was set aside and R. C. & E. O. was directed to reconsider the matter. Thereafter, the two impugned orders dated 19-6-1996 and 21-6-1996 were passed by R. C. & E. O. rejecting release application of the landlady and allotting the building in dispute again to respondent No. 3. In the first allotment order dated 31-8-1991, property in dispute is described as a portion of house No. 144 (3) Canal Road Kanpur consisting of one hall, three rooms, kitchen, store rooms latrine-bathroom covered verandah and garden in the shape of garage. In the order of R. C. & E. O. /a. C. M. VI, Kanpur Nagar dated 19-6-1996 rejecting the release application of the landlady also the property in dispute is described in the same manner i. e. a hall converted from garage, three rooms etc. In the second allotment order dated 21-6-1996 also the allotted building is described in the operative portion as one hall, three rooms, kitchen, store room, latrine-bathroom, covered verandah, Agan, Bageecha (garden) in the shape of garage. In view of this repeated description of the property in dispute by R. C. & E. O. , I am unable to accept the contention of learned Counsel for the respondent No. 3 that hall was not allotted to him. Initially portion in dispute was admittedly in the tenancy occupation of S. K. Chaudhary. After the first allotment, petitioner took possession direct from Sri Chaudhary on 31-8-1991 i. e. on the same date on which allotment order was passed. In the allotment order no rent was fixed. Learned Counsel for the respondent No. 3 has argued that in one of the affidavits filed by the landlady before R. C. & E. O. , it was admitted by her that out going tenant Sri Chaudhary was paying Rs. 272/- as monthly rent including tax hence it must be deemed that building in dispute was allotted to respondent No. 3 for the same rent i. e. Rs. 272/- per month. The argument is too far fetched to be accepted. There cannot be any tenancy without rent in view of Section 105 of T. P. Act. By virtue of Section 16 (9) of U. P. Act No. 13 of 1972, it is essential to fix rent in the allotment order. Allotment order is liable to be set-aside only on this ground that no rent has been fixed therein. Such type of allotment order virtually amounts to compulsory acquisition of property and transferring the same to the allottee free of cost. Allottee is not entitled to get possession directly from the outgoing tenant. Outgoing tenant must first deliver possession to the landlord thereafter landlord shall deliver possession to the allottee failing which R. C. & E. O. can direct delivery of possession from landlord to allottee. If possession has directly been taken by the allottee from out going tenant then this by itself is sufficient to vitiate the allotment proceedings.
(3.) THE above points have been discussed by me in detail in the following authorities- (1) R. L Poddar v. A. D. J. , 2003 (53) ALR 729. (2) C. K. Nagarkar v. A. D. J. Gorakhpur, 2004 (56) ALR 651. (3) Kusum Lata Yadav v. A. D. J. , Moradabad, 2005 (1) JCLR 728 (All) : 2004 (2) ARC 789. When the earlier allotment order dated 31-8-1991 was set-aside and matter was remanded, landlady filed application for possession under Section 18 (3) of the Act. The said application was rejected on the ground that until proceedings for release/allotment were finalized in pursuant of the remand order possession could not be delivered to the landlady. This view was also erroneous. When there is neither any allotment order nor release order it is only landlord who is entitled to possess the building in dispute.;