- (1.) SUDHIR Narain, J. This writ petition is directed against the order, dated 17-11-1993, passed by the respondent No. 1, allowing the revision filed by respondent No. 2, under Section 18 of the U. P. Urban Buildings (Regula tion of Letting, Rent and Eviction) Act, 1972 (in short the Act ). The facts in brief are that the petitioner filed an application for allotment of premises 43/128 Dhobi Mohal, Kanpur consisting of 1 room and 1 kothri, on the allegations that he was already in occupation of another accommodation of the same building, as tenant consisting of 1 room and 1 kothari, but the accom modation with him was insufficient and another tenant of the same building, namely, Ramesh Kumar Nigam was likely to vacate the accommodation and the samd may be allotted to him.
(2.) ON the said application, the Rent Control Eviction Officer, directed the Rent Control Inspector to submit a report. The Rent Control Inspector submitted a report on 26 June, 1989, stating that he tried to contact the landlord several times but he could not contact Mm. He took the statement of Ramesh Kumar Nigam, sitting tenant. Ha gave statement in writing that on account of his family problems, he is likely to vacate the accommodation. This statement is also alleged to have been recorded on 26th June, 1989. ON the basis of the said report the Rent Control and Eviction Officer directed for issuance of the notice to the landlord (respondent No. 2 ). The notice is dated 4th July, 1989. The process-server submitted a report on 5th July, 1989 stating that respondent No. 2 refused to accept the notice and he purported to have obtained the signature of two witnesses. ON the notice, the Rent Control and Eviction Officer on the basis of the report of the Rent Control Inspector declared the vacancy by his order dated 2nd August, 1989. He fixed 28 August, 1989 for hearing the application for allotment of the accommodation. 9th August, 1989 was fixed for hearing of the objection. The notice is alleged to have been sent to the landlord (respondent No. 2) on the same date and again the notice was sent through process-server on 5th August, 1989, the process-server submitted a report that the res pondent No. 2 refused to accept the notice and he is alleged to have obtained signature of two witnesses. The allotment order was passed in favour of the petitioner on 5th September, 1989 and within two days of passing of the allotment order i. e. on 7th September, 1989, the petitioner obtained possession of the disputed accommodation. The respondent No. 2 filed revision No. 146 of 1989 under Section 18 of the Act, before the Xth Additional District Judge, Kanpur against the said order on 28th Septem ber, 1989, The revision was heard by respondent No. 1 and it has been allowed on 17th November, 1993, on the ground that the landlord was not served with the notice and service of notice on him was fictitious. Another revision No, 144 of 1989 was filed by one Brandawan Verma, who was also one of the prospective allottee. The respondent No, 1 allowed the said revision also, on the finding that the Rent Control and Eviction Officer failed to consider material evidence and various aspects of the matter. The petitioner has challenged both these orders in this writ petition. I have heard learned counsel for the parties at length. The learned counsel for the petitioner firstly urged that the Court in revi sion, exercising the power under Section 18 of the Act, has no power to decide the question as to whether the landlord was served with the notice, as it is a pure question of fact. He has placed reliance on Nand Kishore v. Additional District Judge, 1979 ARC 497. In that case a revision was filed against the order of allotment by the landlord. The Court in revision had recorded a finding that the landlord was served, against the decision passed by the District Judge in the revision, a writ petition was filed. The finding of the District Judge was challenged on the ground that the District Judge wrongly relied upon an endorsement, the Court held that the finding recorded by the District Judge did not suffer from any error of law and made the following observations : "i have perused the endorsements and I do not agree with the learned counsel for the petitioner that these endorsements by themselves or otherwise lead to the conclusion that the service of the notice was fake and that the endorsements are forged or manipulated. " The Court after consider ing every aspect of the matter did not find any merit in the writ petition and dismissed the same. In the present case, the District Judge (respondent No. 1) has recorded tile finding that the landlord was not served with the notice.
(3.) IT a person files an application for allotment under Section 16 of the Act, alleging that there is a vacancy, a notice has to be given to the landlord and it is only after notice is given, the Rent [control and Eviction Officer, has to determine the vacancy. When the vacancy is to be determined, he has to follow the procedure of giving notice as required under Rule 8 of the rules framed under the Act. Rule 8 provides that the District Magistrate shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected. Sub-rule (2) of Rule 8 provides that the inspection of the building, so far possible, shall be made in the pre sence of the landlord and the tenant or any other occupant. The facts men tioned in the report should wherever practicable, be elicited from at least two respectable person in the locality. After the report is submitted and the vacancy u notified, the landlord is again entitled to receive notice under Rule 9 (3) of the rules framed under the Act. The proceedings for allotment will be vitiated if no notice is received by the landlord before the order of declaration is passed. The Rent Control and Eviction Officer has jurisdiction to allot the premises only when the notice is served upon the landlord. It is jurisdictional fact and the revisional court has jurisdiction to consider as to whether there was sufficient material to come at the conclusion that the notice was served upon the landlord.;