D.S.Bajpai - (1.) THIS petition under Article 226 of the Constitution of India has been filed by one Ajay Garg praying for quashing the order dated 15-3-1985 passed by the Additional District Magistrate (Civil Supplies), Lucknow after summoning the record of the same. The petitioner impleaded the Additional District Magistrate (Civil Supplies) Rent Control Lucknow as opposite party no. 1 and Sri H. B. Mullick resident of 64, Ram Gopal Vidyant Road, Lucknow as opposite party no. 2. The opposite party no. 1 was impleaded since the impugned order was passed by him and the opposite party no. 2 has been impleaded since he was stated to be the landlord of the premises known as No. 7, Havelock Road, Lucknow.
(2.) THE petitioner claimed that the premises in question had been let out by the landlord opposite party no. 2, to one Sri L. P. Sabharwal with whom the petitioner was living since 1972 with the written permission of the landlord dated 6-3-1976 by which the petitioner was not only allowed to live with the tenant but the tenant was further allowed to sublet the premises, in which the petitioner was living, to the petitioner since it is alleged that the tenant was being looked after by the petitioner and his brother. THE petitioner was regularly paying Rs. 200/,- per month as rent to Sri L. P. Sabharwal, the tenant, which was in the knowledge of the landlord, and in turn Sri L. P. Sabharwal was paying Rs. 300/- per month as rent to the landlord. THE petitioner has brought on record photostate copy of the permission accorded by the opposite party no. 4 to Sri L. P. Sabharwal as Annexure No. 1 to the writ petition. It is further stated that Sri L. P. Sabharwal died on 25-6-1985 leaving no body as his heir and the petitioner to whom the premises in question were legally sublet by Sri L P. Sabharwal had the right to continue in lawful occupation of the building. The petitioner stated that prior to the death of Sri L. P. Sabharwal some proceedings were initiated before the opposite party no. 1 for declaration of vacancy in respect to the premises in question and a notice indicating this (not addressed to Sri Sabharwal) having come to his knowledge he wanted to make an enquiry about it but in the meantime Sri Sabharwal went to Allahabad owing to illness of his nephew. The petitioner also states that he never received a notice either before the vacancy in respect to the premises in question was declared. On these allegations the petitioner submitted that before a vacancy could be declared it was incumbent on the Rent Control Inspector under the Rules framed under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) that he should have inspected the building in the presence of the landlord, the tenant or any other occupant and that the premises in question were never inspected by the Rent Control Inspector much less in the presence of any person indicated in Rule 8 of the Rules framed under the Act and whatever was done by the Inspector was behind every one's back. Violation of this rule, it is further alleged, was made inasmuch as two respectable persons of the locality never verified the Rent Control Inspector's report. No notice was also alleged to have been given by the Rent Control Inspector to either party. On these grounds the petitioner filed the writ petition, inter alia, stating that besides the fact that the order of the opposite party no. 1 dated 15-3-1985 (Annexure- 3) declaring the vacancy which was illegal the opposite party no. 1 could not proceed to allot the said premises without acting in accordance with the provisions of the Act and the Rules framed thereunder regarding declaration of vacancy of the premises. The submission of the petitioner in nut-shell is that he having not been afforded any opportunity to indicate that he was in lawful occupation of the premises no vacancy could be declared and in case an opportunity was given he had a right to adduce evidence to prove his lawful occupation. It is also submitted with equal force by the learned counsel for the petitioner that since be was living in the premises in question with the landlord's consent his tenancy should have been regularised under Section 14 of the Act as applicable to his case.
(3.) THE opposite party no. 3 was a prospective allottee in respect of the premises in question and was impleaded by an order of this Court dated 13-3 1987. He has his case on behalf of the opposite parties. The learned counsel for the opposite parties have been heard at some length. The facts as they emerge are that compliance of the provisions of Rule 8 of the Rules framed under the Act has not been made. Rule 8 provides that : "8. Ascertainment of vacancy [ Sections 12, 16 and 34 (8) ] (1).-The District Magistrate shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected. (2) The inspection of the building, so far as possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and conclusion of the inspection report shall be pasted on the notice- board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such pasting, and if in the meantime any objection is received not before the disposal of such objection. (3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce." To substantiate his contention the learned counsel for the petitioner placed reliance on a decision of their Lordships of the Supreme Court in the case of Ganpat Roy v. Addl. Distt. Magistrate, 1985 AWC 547.;