R.P. Singh, J. - (1.) BY means of this writ petition under Article 226 of the Constitution, the petitioner has prayed for quashing of the order passed by the 1st Additional District Judge, Allahabad, dated March 7, 1987 and the order passed by the Rent Control and Eviction Officer, dated July 30, 1986 by which the accommodation in dispute was allotted in favour of the respondent No. 3. The fact of the case, briefly, are that Smt. Sarla Rastogi is a tenant of the disputed accommodation i.e., back side of 22, Hamilton Road, Allahabad regarding which various persons applied for allotment on the ground that the disputed accommodation has fallen vacant as the tenant Smt. Sarla Rastogi has vacated the accommodation having gone to America. The Rent Inspector on May 29, 1981 submitted a report stating that the landlord could not be contacted as he stays in Kanpur and he found one person living there, who refused to disclose his name and told that the accommodation is in possession, of Smt. Sarla Rastogi and her family and that the accommodation was not vacant. The Rent Control and Eviction Officer thereafter passed a short and cryptic order, dated July 17, 1981 that in view of the report of the process server and the report of the Rent Control Inspector, dated May 29, 1981, vacancy of the accommodation has been established and hence declared the vacancy in respect of the disputed accommodation . Thereafter Smt. Sarla Rastogi filed a writ petition before this Court challenging the order of declaration of vacancy passed by the Rent Control and Eviction Officer and this court vide its order, dated February 8, 1983, held that the writ petition merely against the order of declaration of vacancy was premature and hence dismissed the writ petition as pre -mature. The petitioner then filed an objection on March 23, 1983 that he was in occupation of the disputed accommodation since January, 1976 as tenant along with Smt. Sarla Rastogi who had temporarily gone to America and that the rent of the disputed accommodation was being" regularly paid to the landlord K.C. Bajpai, respondent No. 5, in the case. The petitioner also produced a copy of the letter of the landlord K.C. Bajpai, respondent No. 5, dated December 21, 1975 giving his consent to the occupation of the petitioner and in this letter written to the tenant B.R. Rastogi, the husband of Smt. Sarla Rastogi, the landlord had stated that he had no objection if the petitioner R.P. Dubey is allowed to continue in occupation of the premises in dispute and on this basis the petitioner set up a case that he was in possession as sub -tenant with the consent of the landlord. However, the Rent Control and Eviction Officer holding that the petitioner was in possession only as a trespasser, vide his order, July 30, 1986 ordered the allotment of the accommodation in favour of K.N. Khusaria, respondent No. 3 feeling aggrieved, the petitioner went up in revision before the 1st Additional District Judge who dismissed the revision, vide his order, dated March 7, 1987 which orders are in challenge in the present writ petition.
(2.) HEARD Ravi Kant for the petitioner and Sri S.P. Srivastava for the respondent No. 3. Sri Ravi Kant, the learned counsel for the petitioner, firstly contended that the inspection made by the Rent Control Inspector was in violation of Rule 8(2) of the Rules framed under the Act inasmuch as no notice of the proposed inspection was served on the landlord and the tenant or even the petitioner, who was the occupant of the disputed accommodation. Hence the inspection was not made in presence of the landlord and the tenant or even the petitioner who was the occupant of the accommodation and further the facts mentioned in the report should have been elicited from atleast two respectable persons of the locality but inspection report did not indicate that any attempt was made to elicit information from atleast two respectable persons of the locality and hence there is a clear breach of the provisions of Rule 8(2) of the Rules framed under the Act. Secondly, the learned counsel contended that in view of the letter of the landlord sent to the tenant giving his consent subletting the accommodation in favour of the petitioner, the petitioner had become sub -tenant of the disputed accommodation with the consent of the landlord and hence could not be treated as a trespasser and hence also the disputed accommodation was not vacant. Thirdly, he contended that in view of the fact that the petitioner was in occupation of the disputed accommodation as a sub -tenant since January, 1976 with the consent of the landlord, he is entitled to the protection of Section 14 of the Act and his tenancy is liable to be regularised and hence also the orders passed by the respondents No. 1 and 2 treating the petitioner to be a trespasser are clearly vitiated.
(3.) NOW taking the first point canvassed regarding violation of Rule 8(2) of the Rules, it has been contended by the learned counsel for the petitioner that no notice of the inspection was given to the landlord or tenant or even the petitioner, who was an occupant. Rule 8(2) reads as follows: 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 the 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 posting, and if in the meantime any objection is received, not before the disposal of such objection.;