- (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 30-4-1997, allowing revision No. 18 of 1992, set ting aside the allotment order passed in favour of the petitioner and remanding the matter to the Rent Control and Eviction Officer for considering the allotment ap plications afresh.
(2.) THE dispute relates to a residential accommodation i. e. , first floor of premises No. 76-C, Nashvilla Road, Dehradun. Respondent No. 2 is its owner and residing in this house. This accommodation was originally occupied by one Smt. Kanta Shar-ma. THE landlord- respondent filed applica tion for release on the allegation that Smt. Kanta Sharma had vacated it and passed on its possession to one Ashok Kumar. THE accommodation should be treated as vacant. He needs it bonafide and be released in his favour. A notice was issued to Smt. Kanta Sharma. She filed objection alleging that she never vacated the disputed accom modation and it is not vacant. THE Rent Control and Eviction Officer passed an order on 30-1-1992 declaring the disputed accommodation as vacant on the finding that Smt. Kanta Sharma had vacated the accommodation. THE petitioner after decla ration of vacancy filed an application for its allotment. THE Rent Control and Eviction Officer rejected the release application filed by the landlord on 13-2-1992 and by the same order allotted the accommodation in favour of the petitioner. Respondent No. 2 filed revision No. 18 of 1982 against allot ment order passed in favour of the petitioner and revision No. 19 of 1992 against the order rejecting his release ap plication. Respondent No. 1 dismissed revision No. 19 of 1992 upholding the order of the Rent Control and Eviction Officer rejecting the release application. This order is not under challenge in the present writ petition. Respondent No. 1 allowed revision No. 18 of 1992 setting aside the allotment order in favour of the petitioner and remanding the matter to the Rent Control and Eviction Officer for considering the al lotment application afresh after giving op portunity of hearing to the landlord-respon dent No. 2. Respondent No. 1 took the view that the allotment order cannot be passed on the day, the order rejecting the application of the landlord for release of the disputed premises is passed inasmuch as the landlord is entitled to raise objection in respect of the allotment application only when he comes to know that his release application has been rejected. Sri K. K. Arora, learned counsel for the petitioner contended that under law it is not required that the Rent Control and Eviction Officer should fix a different date for hearing of allotment applications in case the release application of landlord is rejected on the same date. It is necessary to refer to Rule 9 (3) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the Rules) which reads as under: "9 (3) Immediately after the receipt of in timation 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 case of all applicants registered in the register mentioned in Rule 10 and shall pass an order under Section 16 in accord ance with Rules l0 and 11. " The aforesaid Rule contemplates that the landlord shall be intimated about the date fixed for hearing of the allotment ap plication. In case the landlord has filed ap plication for release of the accommodation in question under Section 16 (1) (b) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (In short the Act), the allotment applications cannot be considered unless the application for release filed by the landlord is decided. The prospective allottee is not entitled to con test the release application as held in Full Bench case of Talib Hasan and another v. 1st Additional District judge, Nainital and others, 1986 (1) A. R. C. 1. The prospective allottee comes into picture only after rejection of landlord's application for release. The view of the Full Bench has been upheld by the Hon'ble Supreme Court in Vijai Kumar Sonkar v. Incharge District Judge and others, 1995 (2) A. R. C. 1. The Rent Control and Eviction Officer has fixed the date for con sidering the release application and on the date so fixed the Rent Control and Eviction Officer has to consider the merits of the release application. In case the application for release is rejected, he is to fix a date for hearing of the allotment application. Rule 9 (3) of the Rules framed under the Act con templates a date of hearing of the allotment applications. The landlord can submit his objection on the date of hearing of allot ment applications. It may be that the landlord might have filed objection against the allotment application but even in that case it is only after the rejection of the release application the objection in regard to the allotment application has to be con sidered on a date which may be fixed by the Rent Control and Eviction Officer for con sideration of the allotment applications. There must be a time gap between the date of hearing of the application for release and the date of hearing on applications for allot ment of the premises in question. The Rent Control and Eviction Officer after having rejected the release application should have fixed another date for hearing the allotmen. applications.
(3.) LEARNED counsel for the petitioner has placed reliance upon the decision Vish-wa Nath v. Wthaddl. District Judge, Etawah and others, 1984 (1) A. R. C. 459, wherein the landlord was contesting the matter regard ing the vacancy. In paragraph 4 of this judg ment it was observed that landlord was par ticipating in the allotment proceedings, he cannot complain that there was any viola tion of Rule 9 of the Rules. In this case, the landlord had not filed any application for release of the disputed premises. The sole question was whether the disputed premises was vacant. In Brij Mohan Sharma and another v. The District Judge, Pauri Garhwal and others, 1979 A. R. C. 308, the landlord contended that the accommodation should be allotted to his nominee and he is entitled to nominate under Section 17 (2) of the Act. His contention was repelled by the revising authority. On writ petition being filed, one of the arguments was raised that Rule 9 (3) was not observed by the Rent Control and Eviction Officer. The District Judge had taken the view that Rule 9 (3) was applicable only when intimation of vacancy was given by the landlord as provided under Section 15 (1) of the Act. This Court did not express any view in the matter but held that as the petitioner was not prejudiced on account of non-intimation of the date fixed for hearing of the case, he cannot complain of non- com pliance of Rule 9 (3) of the Rules.;