Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the parties. This writ petition was earlier allowed by me on 15.5.2006 without hearing any one on behalf of respondents as no one had appeared. Thereafter rehearing application was filed which was allowed on 9.2.2007 and arguments of learned Counsel for both the parties on the merit of the writ petition were also heard on the same date. Meanwhile counter and rejoinder affidavits had been exchanged.
(2.) THIS writ petition is directed against allotment order under section 16 of U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 passed by R.C. & E.O./D.S.O. Meerut on 8.8.2002 in Case No. 26 of 2000 Mukesh v. Sunehri Devi. Earlier building had been declared to be vacant on 25.7.2002. In the allotment order rent was fixed to be Rs. 150/ - per month. Against allotment order petitioner landlady filed Revision No. 66 of 2003. A.D.J. Court No. 14 Meerut through judgment and order dated 18.5.2004 dismissed the revision. The said order has also been challenged through this writ petition. Paragraphs 3 and 4 of my earlier judgment which contained the points involved in the writ petition and the two authorities of the Supreme Court on the said points are quoted below: Respondents had asserted that since 1979 Smt. Bina was the tenant of the accommodation in dispute and respondent No. 1 being her real sister was residing with her since start of tenancy. It was also asserted that shortly before filing of the allotment application Smt. Bina had shifted to another city Jaipur, Rajasthan hence there was vacancy. R.C & E.O. allotted the building in dispute to respondent No. 1 on the ground that she was residing therein for more than 20 years. By virtue of Rule 10 of the Rules frames under U.P. Act No. 13 of 1972, a building can not be allotted to unauthorised occupant, except when he has been inducted as tenant by the landlord after 1976 vide R.K. Parashar v. Dinesh Kumar : 2000 (39) ALR 248. However in the instant case neither there is any allegation nor any finding that allottee respondent No. 1 was inducted as tenant by the landlord or he was paying any rent to the landlord. Respondent No. 1 only asserted that since 1979 when her sister Smt. Bina was inducted as tenant by the landlord she was residing with her. Sister is not included in the definition of family but she is fully entitled to reside along with her tenant sister in the tenanted accommodation. However, if the tenant has completely removed his possession from the tenanted accommodation then it can not be occupied by tenant's sister or brother and if it is so occupied then it will amount to subletting vide Ganesh Trivedi v. Sunder Devi, 2000 (47) ALR 276 (SC). In view of this, respondent No. 1 being unauthorised occupant and not being in possession with the consent of the landlord did not deserve allotment. Allotment order is liable to be set -aside on this ground alone. Learned Counsel for the respondent has vehemently argued that Smt. Radha respondent No. 1 was real sister of original tenant Smt. Bina hence she was entitled to reside alongwith her sister and also to apply for allotment after her sister Smt. Beena completely left the accommodation. Sister is not included in the definition of family member given under the Act. In any case, if she was entitled to continue to reside in the house in dispute as tenant then there was absolutely no need to declare vacancy and pass allotment order in her favour.
(3.) VACANCY declaration order an allotment order are erroneous in law and without jurisdiction on the additional ground that no notice at any of the three stages was served upon the landlady petitioner i.e., before inspection, before declaring vacancy and before making allotment. I have discussed this aspect in detail in the authority in C.K. Nagarkar v. A.D.J. Gorakhpur : 2004 (2) ARC 349. In the said authority, I have placed reliance upon several Supreme Court authorities. In the instant case no notice was sent through registered post. In the aforesaid authority of C.K. Nagarkar, I have held that notice should be issued through registered post. Two affidavits were filed by the landlady before the Revisional Court, copies of which have been filed in this writ petition alongwith II Supplementary Affidavit. In one of the said affidavits sworn on 16.10.2002, it was stated that the notice purported to be issued to the petitioner did not contain the number of her house. Revisional Court did not take into consideration the said assertion. As far as notice before inspection is concerned, it is clear from the report of R.C.I. that no such notice was issued. There is no mention of any such notice in the said report. The only thing which has been mentioned therein is that notice was sent to the landlady under Rule 8(2) of the Rules framed under the Act. In the vacancy declaration order, it is not mentioned that notice was issued to the landlady. By virtue of Supreme Court authority in Ganpat Roy v. A.D.M. : 1985 (11) ALR 423 (SC), vacancy declaration order was illegal and without jurisdiction on this ground alone.;