S.U.Khan - (1.) -Heard learned counsel for the parties.
(2.) PETITIONERS in both the writ petitions are allottee tenants of two different portions of House No. 26/55, Virhana Road, Kanpur. The portions in dispute in both the writ petitions consist of two rooms on first floor each. In the property in dispute in the first writ petition, previously one Sanad Kumar was the tenant and in the property in dispute in the second writ petition Sri Pyarey Lal alias Hira Lal was the tenant. Both the petitioners alleged that the previous tenants intended to vacate the tenanted accommodations in their possession and on coming to know of the said intention, petitioners filed allotment applications on 22.4.1982 in the first case and on 24.5.1982 in the second case. According to Para 4 of both the writ petitions on the allotment applications of the petitioners, R.C. and E.O. concerned called for reports from the Rent Control Inspector (R.C.I.), who submitted the report on 4.5.1982 in the first case and on 5.6.1982 in the second case. The reports are Annexure-1 to the writ petitions. In the reports, it was mentioned that the previous tenants gave written statements to the R.C.I. that they were tenants @ Rs. 66.40 per month and Rs. 72 per month respectively and they intended to leave the tenanted accommodations very shortly. It is absolutely clear from both the reports that absolutely no notice was given to the landlord by R.C.I. before inspection. In both the reports, it was mentioned that outgoing tenants informed the Inspector that Sri Kamlapat Kanodia was the landlord (respondent No. 2 in both the writ petitions). According to Para 5 of both the writ petitions, R.C. and E.O. on 4.5.1982 and 5.6.1982 respectively passed the orders notifying the vacancies and directing that the parties be intimated. According to Para 6 of both the writ petitions, vacancy was notified alongwith other premises on 6.5.1982 and 11.6.1982 respectively. According to Para 7 of both the writ petitions, notice of vacancy was also served upon the landlord respondent No. 2 but he refused to accept the same on 8.5.1982 and 7.6.1982 and thereafter, it was affixed on his house. Annexure-4 to each writ petition is copy of report of process server. In both the cases, petitioners were the only applicants, hence buildings were allotted to them. In the first case, allotment order was passed on 13.5.1982 and in the other case on 30.6.1982. Annexure-5 to each writ petition is the allotment order. In the allotment order, there is absolutely no mention that notice was served upon the landlord. The entire order is that from the perusal of the record, it is evident that there is only one applicant, no objection/affidavit has been filed, hence building is allotted to the solitary applicant. In the first case, allotment order was passed in Case No. 2960 of 1982 and in the other case, in Case No. 324 of 1982 by R.C. and E.O./Additional City Magistrate (V), Kanpur. Annexure-6 to each writ petition is the proforma of allotment order. In the allotment order, it was clearly mentioned that landlord Sri Kamlapat Kanodia after vacation of the house from the previous tenant should let out the house to the allottee. In none of the allotment orders, any rent was fixed. Annexure-7 to the writ petition is certificate of the petitioner filed before R.C. and E.O. on 17.5.2008 to the effect that Sanad Kumar the previous tenant had given possession to him on 15.5.1982. As far as second writ petition is concerned, in Para 12 of the same, it has been stated as follows : "that the petitioner took possession of premises on 1.7.1982 from Sri Pyarey Lal alias Hira Lal the erstwhile tenant." Thereafter, landlord respondent No. 2 filed revisions against allotment orders. In the first case, revision was numbered as Rent Revision No. 150 of 1982 and in the other case as Rent Revision No. 230 of 1982. Vth A.D.J., Kanpur through judgments and orders dated 24.9.1983 allowed both the revisions, set aside the orders passed by R.C. and E.O. and remanded the matter back for re-deciding the question of vacancy and allotment of the premises in dispute after compliance of Rule 8 of the Rules framed under U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Both the judgments are similar but separate. The said judgments and orders of the revisional court have been challenged by the allottees/tenants through these writ petitions.
(3.) THE above narration of facts leaves no room of doubt that it was clearly a case of house grabbing with full support of R.C. and E.O. R.C.I. before making inspection was not even aware as to who was the landlord. Under Rule 8 (2) of the Rules framed under the Act, it was utmost essential to issue notice to the landlord before inspection. However, issuance of notice would have upset the apple cart of the petitioners, outgoing tenants and R.C. and E.O. All the three were hand-in-glove with each other for grabbing and absorbing the house in dispute. Supreme Court has repeatedly held that notice to landlord, at three stages, is utmost essential. One is before inspection, the other is before declaring vacancy and the third is after declaration of vacancy and before allotment. In the instant case, according to the own case, no notice was issued either before inspection or before declaring likely vacancy. Petitioners alleged that third notice, i.e., after declaring vacancy and before allotment notice was issued to the landlord but there is no finding of service in the impugned orders. Supreme Court in Ganpat Roy v. A.D.M., 1985 (2) ARC 73, has held that vacancy cannot be declared without hearing the landlord. In the instant case, absolutely no effort was made to intimate the landlord. Likely vacancy was notified in the routine manner. How the petitioners came to know about the intentions of previous tenants to vacate has not been disclosed anywhere. Why the tenants kept their intention to vacate secret from the landlord is still a mystery. It has not been divulged even in the writ petitions. In any case, outgoing tenant and prospective tenant cannot exchange possession without interception of the landlord. First the outgoing tenant must deliver possession to the landlord and thereafter landlord may be asked to redeliver possession to the allottee/ tenant. Under general law of lease as provided under Chapter V of Transfer of Property Act tenant at the time of leaving the tenanted property is required to deliver its possession to the landlord. This principle is also recognized under Rule 14 of the Rules framed under the Act, which is quoted below : "Enforcement of order of allotment or release [Section 16 (4)].-Where any building about to fall vacant is allotted or released under Section 16 (1), proceedings putting the allottee or the landlord, as the case may be, in possession shall be taken by the District Magistrate only after the building has actually fallen vacant or is held by him through an inquiry conducted in that behalf to have fallen vacant, and an order in Form C shall be served upon the person or persons found in authorised occupation of the building directing him or them to vacate the same and deliver vacant possession thereof to the person named in the order within such period as may be specified in the order, which shall in no case be less than a week from the date of service of the order upon him, and his failure to comply with the order, within the time allowed the District Magistrate shall issue an order to the officer-in-charge of the police station in Form D directing him to get the building vacated and to put the allottee or the landlord in possession of the building." ;