- (1.) SUDHIR Narain, J. There are com mon questions of law and fact in these two writ petitions and they are being disposed of jointly.
(2.) THE dispute relates to house No. 397, Civil Lines, Mai Godam Road, Budaun. One Jalaluddin was owner of this property and Ramesh Chandra Gupta was its tenant. He was transferred and on his transfer the building was declared as vacant in the year 1990. After declaration of vacancy it was alloted to Sri P. C. Agarwal on 20th February, 1991. Jalaluddin, owner of this property, sold the house in question to Mishri Lal and his son Yogendra Pal by registered sale-deeds dated 5th March, 1993 and 20th March, 1993. Sri P. C. Agarwal was in Government service. He was transferred to another district. On 24-1-1994 the landlords filed application for release of the disputed accommodation on the allegation that P. C. Agarwal has vacated this house on his transfer to another district. THE accom modation in question be treated as vacant. THEy need the accommodation bonafide for their residential purpose. One Suresh Kumar also filed an application for its allot ment. The Rent Control and Eviction Of ficer Budaun asked for a report from the Rent Control Inspector. The Rent Contro. Inspector submitted report on 18th Novere -ber 1995 that Ramesh Chandra Gupta w? s in its occupation. He had already vacated t and thereafter in the year 1990 it w s declared as vacant and later on allotted -to P. C. Agarwal on 20th February, 1991. He was in unauthorised occupation. On 21-11- 1995 Smt. Praveen his petitioner filed application for allotment of the house in question on the allegation that she is resid ing in the village and has no accommoda tion in the city. She requires the accom modation to live in city. Shri Ramesh Chandra Gupta filed on objection on 28-11-1995 that though he has been transferred to another district but he has not been given accommodation in the district where he has been transferred and the accommodation should not be treated as vacant. The Rent Control Inspector again submitted a report on 29-11-1995 that the accommodation should be treated as vacant. The landlord filed another application for release on 30th November, 1995. The Rent Control and Eviction Of ficer considering the objection of Shri Ramesh Chandra Gupta held that the house in question had already been declared as vacant as he was transferred, he cannot agitate that there was no vacancy. His objec tion was rejected by order dated 8-12-1995. The Rent Control and Eviction Officer by the same order rejected the application of the landlord for release of the disputed accommodation on the finding that he had sufficient accommodation and by the same order he alloted the disputed accommoda tion to the petitioner. The landlord filed revision No. 1 of 1996 against the order rejecting his release application and revision No. 2 of 19% against the order alloting the accommodation to the petitioner. Respondent no. 1 took the view that the Rent Control and Eviction Officer illegally rejected the release application. He was not given any notice as provided under the proviso to Section 16 of the Act and further by a composite order he was not justified in passing the order rejecting the release application of the landlord and al lotting the house in question to the petitioner. The petitioner has filed writ petition No. 1416 of 1997 against the order passed in Civil Revision No. 2 of 1996 for setting aside the allotment order and writ petition No. 14157 of 1997 against the order passed by Respondent No. 1 in Civil Revision No. 1 of 1996, allowing the revision of the landlord against the order of rejection of application for release and remanding the matter to the Rent Control and Eviction Officer.
(3.) SRI Ashok Khare, learned Counsel for the petitioner urged that respondent No. 1 illegally held that the landlord was entitled to a notice under the proviso to Section 16 of the Act. Proviso to Section 16 (1) of the Act provides that in the case of vacancy referred to under sub-section (4), the District Magistrate shall give an oppor tunity to the landlord or the tenant, as the case may be of showing that the said Section is not attracted to the case before making an order under clause (a ). The landlord him self having filed an application for release on the ground that the accommodation was vacant, he was not required to be given a separate notice under this proviso. Proviso to sub-section (1) of Section 16 of the Act is applicable when an applica tion is filed by the tenant or any person stating that the accommodation is vacant. The landlord in that case is entitled to be heard as held in Yogendra Tiwariv. The Dis trict Judge, Gorakhpur and others, 1984 (2) ARC 7. In this case, however, the landlord himself says that the accommodation in question is vacant and files an application for release, a separate notice is not required before declaration of vacancy by the Rent Control and Eviction Officer. The landlord has filed application and he has participated in the proceedings for declaration of vacan cy. In Rajendra Singh and others v. District Judge, Kanpur and others 1986 (1) ARC 116, it was held that when the tenant par ticipated in proceedings for allotment and had an opportunity to file objection, he cannot complain of non-compliance of Rule 8 of the Rule framed under the Act. Similarly, if the landlord has filed an ap plication for release on the ground that there was vacancy and in those proceedings the question of vacancy is determined, he is not required to be given a separate notice by the Rent Control and Eviction Officer.;