- (1.) J. C. Gupta, J. This writ petition has been filed for quashing the order dated 30-11-95 passed by the Rent Control and Eviction Officer 1st, Allahabad, respon dent No. 1 (Annexure-6 to the writ peti tion) rejecting the nomination dated 17-11-95 made by petitionent No. 1, the landlord, in favour of responded No. 2 and further directing the Rent Control Inspec tor to submit report after making inspec tion of the premises in question afresh.
(2.) THE dispute relates to a shop bear ing No. 19/35 Mahatma Gandhi Marg, Allahabad and the same is admittedly owned by petitioner No. 1. One Smt. Shob-ha Rani Seth was occupying the said shop as tenant of petitioner No. 1. It is said that Smt. Shobha Rani Seth, the sitting tenant, gave an information in writing through letter dated 27-9-95 to petitioner No. 'l that she was going to vacate the tenanted shop by 15-11-95 as she was likely to get another shop for carrying her business. She further stated in the said letter that she was removing all her belongings, fittings, fixtures and furniture's from the tenanted shop and would deliver its vacant posses sion by the aforesaid date. She requested the landlord to take possession himself or through any person authorised by him for that purpose. This letter was received by the landlord on 29-9-95. As per the provisions of Section 15 (1) of the U. P. Act No. 13 of 1972 (hereinafter to be called as the Act) read with Rule 9 (1) intimation of expected vacancy was sent by the landlord to the respondent No. 1. This intimation was received in the office of respondent No. 1 on the same day i. e. 5-10-95. THE respondent No. 1 directed the Rent Con trol Inspector to make inspection and sub mit his report. In compliance of the said order of Rent Control Inspector made in spection of the premises in question on 7-10-95, 9-10-95 and 14-10-95 and sub mitted report to respondent No. 1 on 16-10-95. In the said report he stated that the inspection of the shop was got done by the husband of the tenant where upon it was found that the tenant has substantially removed the goods from the shop and only small articles were lying there. No business was being carried on by the tenant and the shop was kept looked. He further reported that the inquiry made by him revealed that the shop was likely to be vacated by the tenant in near future. However, as the tenant himself was not present, her hus band refused to give anything in writing. In that report the Inspector concluded that from the facts collected during inquiry, it appeared that the tenant Smt. Shobha Rani Seth was likely to vacate the shop in near future and this has also been verified by the landlord in the intimation of vacan cy sent by him. On this report respondent No. 1 ordered that notices be sent to all concerned. However, it appears that thereafter no further action was taken and respondent No. 1 slept over the matter with regard to the allotment proceedings. When no order of allotment was passed for long, the landlord on 17-11-95 sent a letter to the R. C. and S. O. requesting him to make an order of allotment in favour of petitioner No. 2 his nominee. THE R. C. and E. O. However, by the impugned order dated 30-11-95 rejected the nomination made by the landlord. On behalf of respondent No. 1 counter-affidavit of one of his officials has been filed. Respondent No. 2 Smt. Shobha Rani Seth has also filed her own counter-affidavit, while respondent No. 3, who has been imp leaded by the court's order dated 6-8-95, has also filed counter-affidavit. It may be mentioned that respondent No. 3 claims himself to be an application for allotment. Learned Counsel for the petitioners argued before this Court that intimation of vacancy under Section 15 (1) can be sent by the landlord in case of actual vacancy as well as in the cases where there is likely vacancy. He further argued that since such an intimation had been sent by petitioner No. 1 to the authority con cerned on 5-10-95 under the provisions of Section 15 (1) read with Rule 9 (1), it was obligatory on the part of respondent No. 1 to have either passed an order of allotment within 21 days from the date of receipt of such intimation or to have accepted the nomination so made by petitioner No. 1, the landlord. It is contended by the learned Counsel that if no allotment order is made within the aforesaid period of 21 days, the Rent Control Authority may make an order of allotment in favour of a person other than the nominee of the landlord by recording reasons as to why he was not accepting the nomination. This could also be done within ten days after the expiry of period of 21 days and not thereafter. He argued that since in the present case, in timation of expected vacancy had been received by respondent No. 1 on 5-10-95, he was obliged to pass an order of allot ment to a person of his choice within 21 days and since no such order of allotment was made, respondent No. 1 had no option but to accept the nomination of petitioner No. 1 as made and intimated to respon dent No. Ion 17-11-95.
(3.) ON the other hand, learned Coun sel for respondent No. 3 argued before this Court that to attract the provisions of Section 17 of the Act it is necessary that intimation of vacancy should be sent by the landlord as well as the tenant and since in this case intimation of vacancy was only sent by the landlord, Section 17 will have no application. He further argued that though petitioner No. 1 had sent intima tion that the shop was likely to be vacated by the outgoing tenant Smt. Shobha Rani Seth by 15-11-95, but in fact the shop was not vacated till 17-11-95 as Smt. Shobha Seth admitted her occupation till that date in her affidavit filed before respondent No. 1, wherein she stated that she was in oc cupation and was likely to vacate the shop in question in near future. In order to appreciate the question involved in this petition, it is necessary to reproduce the relevant provisions of the Act - "section 15. Obligation to intimate vacan cy to District Magistrate.- (1) Every landlord, on a building falling vacant by his ceasing to occupy it or by the tenant vacating it or by release from requisition or in any other manner whatsoever gives notice or the vacancy in writing to the District Magistrate not later than seven days after the occurrence of such vacancy, and such notice may at the option of the landlord be given before the occurrence of the vacancy. (2) Every tenant so vacating a building shall give notice thereof in writing to the District Magistrate and also to the landlord not less than fifteen days before the vacancy. (3) The notice under sub-section (1) or sub-section (2) shall contain such particulars as may be prescribed. Section 17. Conditions of making allot ment order.- (1) Where the District Magistrate receives an intimation, under sub-section (1) of Section 15, of the vacancy or expected vacancy of building any allotment order in respect of that building shall be made and communicated to the landlord within twenty one days from the date of receipt of such intimation, and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choice, and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of in timation of such nomination. " Rule 9 prescribes as to what par ticulars the notice to the District Magistrate under sub-section (1) or sub section (2) of Section 15 shall contain.;