- (1.) S. R. Singh, J. Petition on hand stems from the order dated 13-9-91 passed by 8th Addl. District Judge Varanasi, whereby the orders dated 5-4-86 and 15-4-86 passed by Rent Control and Eviction Officer, Varanasi have been set aside in revision preferred under Section 18 of the U. P. Act, 3 of 1972.
(2.) SHORN of unnecessary details, the facts as they are germane to the controversy involved in the case are that the Rent Control and Eviction Officer, Varanasi, by means of the order, dated 5-4-90, notified the premises at S-8/120-A Radhakunj Khajuri, Varanasi to be vacant under Section 12 (4) of the Act and by means of the subsequent order dated 15-4-1986, the said premises was allotted to the petitioner- Ravindra Pratap Singh. The respondent-landlord, Narain Das Rastogi (since dead and now represented through Legal Representatives - Smt. Rani Devi and others), went up in a revision. The learned Addl. District Judge Varanasi, returned a verdict that the notification of deemed vacancy and allotment of the building in question, were embarked upon without notice to the landlord i. e. without abiding by the procedure prescribed by the Rules framed under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and the proviso to Sec. 16 (1) of the Act. Accordingly, the orders dated 5-4-1986 and 15-4-1986 were set aside by means of the impugned order dated 13-9-1991. Sri Ravi Kiran, Jain, learned Senior Advocate, appearing for the petitioner began his arguments canvassing that the revision against declaration of vacancy was not legally maintainable and further that the revisional court, while exercising power under Section 18 has no jurisdiction to go behind the order declaring vacancy, actual or deemed, under Section 12 of the Act and therefore, proceeds the submission, learned Addl. District Judge entertained the revision de hors jurisdiction and illegally set aside the order dated 5-4-1986passed by the Rent Control and Eviction Officer, declaring vacancy in respect of premises in question. Sri Shyarn Narain, learned counsel appearing for the respondents emphatically repudiated the submissions made by Sri Jam, adding with emphasis that the power conferred upon the District Magistrate under the proviso to sub-section (1) of Section 16, can be exercised even by the revisional court and by virtue of the said power, the revisional court could indulge into the question whether or not, sub-section (4) of Section 12 of the Act was attracted to the facts of the case. With a view to appreciating the submissions made at the bar, it would be useful to notice the related statutory provisions and consider the imprimature of the rulings cited across the bar. Rules 8 and 9 (3) of the Rules being relevant are quoted below : "8. Ascertainment of vacancy (1) 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. (2) The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board qf the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of such objection. (3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce. 9. Notice of Vacancy:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) ******* (2) ******* (3) Immediately after the receipt of intimation of vacancy of any building in the office of the District Magistrate the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by pasting a copy of the list of the vacant buildings on the notice board of that office, specifying therein the date on which the question of allotment will be considered. He shall also issue a notice to the landlord intimating him the date so fixed. On the date so fixed the District Magistrate shall consider the cases of all applicants registered in the register mentioned in Rule 10 and shall pass an order under Section 16 in accordance with Rules 10 and 11. " ******* Sections 12 (4) and 16 (1) of the Act reads as below: "12 (4) - Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub- section (1), or sub-section (2), or (sub-section (3), sub-section (3-A) or sub-section (3-B), shall for the purposes of this chapter, be deemed to be vacant. 16. Allotment and release of vacant building (1) Subject to the provisions of the Act, the District Magistrate may by order: (a) require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order); or (b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order): Provided that in the case of a vacancy referred to in sub-section (4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a)" A bare perusal of rule 8 would indicate that albeit a notice to the landlord or the tenant, as the case may, be, whose act may have given rise to a deemed vacancy within the meaning of section 12 (4) is not required to be given as a condition precedent to notifying the vacancy on the notice board of the District Magistrate, the rule does comprehend that before notifying the vacancy, the Rent Control and Eviction Officer must get the building inspected, so far as possible, in the presence of the landlord and the tenant or any other occupant. The presence of the landlord and the tenant or any other occupant, so far as possible, may be ensured by any reasonable means and not necessarily by means of a formal written notice. It may be noticed that what is required to be pasted on the notice board is "the conclusion of the inspection report" based on the inspection of the building and the facts ascertained and elicited, if practicable, from at lease two respectable persons of the locality. So far as notification of vacancy within the meaning of Section 12 of the Act is concerned, it is, in fact, not visualized to be declared by means of a formal order declaring vacancy. All that the rent Control and Eviction officer is required to do, as a step in aid of allotment, is to get the building inspected and facts ascertained in the manner indicated in rule 8 of the rulesh and direct that the conclusions of the inspection report be notified and pasted on the notice board and that is why Rule 8 speeks of "ascertainment of vacancy" and it is perhaps, for this reasons that no revision or appeal is provided against an order notifying a deemed vacancy within the meaning of Section 12 (4) of the Act. An opportunity to the landlord or the tenant, as the case may be, is however a condition precedent to a valid order of allotment.
(3.) IN Ganpat Roy v. Addl District Magistrate, AIR 1985 SC 1635, the Supreme Court has held as below: ". . . . . . . . . The original rule, however, was to the same effect and under it also the conclusion reached by the Rent Control INspector contained in this report of the inspection of the building was required to be posted on the notice board of the office of the Distt. Magistrate for the information of the general public, and the order of allotment could not be passed before the expiration of three days from the date of such posting and if in the time any objection as received not before the disposal of such objection. " ******* "under the provisio to S. 16 (1) which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub-section (4) which includes a deemed vacancy under Section 12 (2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that S. 12 (4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16 of the Act and their Lordships have been pleased to observe as under: "the District Magistrate is required in terms of Rule 8 (2) to give an opportunity to the landlord to file his objection or make his submission, if any, to the making of an order of allotment under Section 16 (1) (a ). IN the case of deemed vacancy reffered to in section 12 (4) he is entitled to show that none of the clauses (a) to (c) of section 12 (1) comes into play. . . . . . . . . . The proviso to section 16 (1) has been introduced to meet with the requirements of principles of natural justice. As vacancy, actual, expected or deemed, is a jurisdictional fact for the making of an order of allotment under Section 16 (1) (a) or for an order of release under clause (b) thereof, the District Magistrate must follow the procedure prescribed under the Actand the Rules framed thereunder. " I have meticulously scanned the decisions aforestated as also the related provisions of the Act and Rules and I am of the view that an order of allotment brought about same notice to the landlord or tenant, as the case may be, operates in vacuum. Rules 8 (2) and (3) as also the proviso to Sec 16 (1) in fact, encompass a facet of principle of natural justice and it is well settled that an order fraught civil with consequences, if passed in breach of the principles of natural justice would operate in void. 7. I am of the view also that the proviso to sub-section (1) of Section 16 in a way provides for review by the District Magistrate about the factum of vacancy in that it visualizes that in case of vacancy referred to in sub-section (4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case. IN other words if the District Magistrate is satisfied, at the stage of allotment under Section 16 (1) that there exists no vacancy as comprehended by Sec. 12 (4), he may pass an order to that effect. This would necessarily result in dropping the allotment proceedings under Section 16 of the Act. IN other words, if the District Magistrate is satisfied that sub-section (4) of section 12 of the Act is not attracted, then in that event, he shall be obliged to recall the order notifying vacancy. This power may be exercised at the instance of the landlord or the tenant, as the case may be for otherwise the requirement of affording opportunity of showing that Sec. 12 (4) is not attracted would be meaningless. Therefore, it leaves little room for quarrel that is case the final order of allotment under clause (a), Sub-section (1) of Section 16 is passed without observing in compliance the requirements of the proviso to sub-section (1), then in that event such order of allotment would be void ab intio and can be so declared even by the revisional court in exercise of its power under Section 18 of Act (sic) Section 18 permits scrutiny of final order of allotment or release, as the case may be, on the grounds namely (i) that the district Magistrate has exercised a jurisdiction not vested in him by law; (ii) that the District Magistrate has failed to exercise jurisdiction vested in him by law; and (iii) that the District Magistrate acted in the exercise of his jurisdiction illegally and with material irregularity and since the existence of vacancy is a sine quanon for allotment. It also enjoins duty on the District Magistrate to drop the allotment proceeding in case he is satisfied that the Sec. 12 (4) is not attracted. 8. Upon a careful consideration of the authorities referred to above, I am of the opinion that in view of the finding that the allotment order was issued in breach of the proviso to sub-section (1) of Section 16, the revisional court was justified in setting it aside but in the absence of a finding on existence, happening or otherwise of the events attracting sub-section (4) of Section 12 of the Act, the revisional court ought not to have set aside the order dated 5-4-86 notifying vacancy. After setting aside the order of allotments the matter ought to have been remitted to the Rent Control and Eviction officer to decide the case a fresh after notice to the respondent- landlord as comprehended by the proviso to sub-section (1) of Sec. 16 of the Act and examine, on the basis of the material that may be brought on record, whether Section 12 (a) of the Act is attracted to the facts of the case and in case the Rent control and Eviction officer is satisfied that provision of sub-section (4) of section 12 are not attracted, it would be within his competence to recall the order notifying/declaring vacancy and consequently to drop the allotment proceedings under Section 16 of the Act. 9. Accordingly, in modification of the impugned order, it is here by provided that the Rent Control and Eviction Officer shall proceed to determine whether Sec. 12 (4) is attracted to the facts of the case and in the light of its finding on this question to pass, within three months, such consequential order as may be deemed fit and proper in the circumstances of the case keeping in view the observations made in this judgment, parties are directed to appear before the Rent control and Eviction Officer on or before 15th Dec. 1996. 10. The petition is disposed of in terms of the above direction/observations. Petition disposed of. .;