Prakash Krishna, J. - (1.) THE dispute relates to ground floor accommodation of premises no. 62/44, Harbans Mohal, Kanpur of which Smt. Ram Pyari (mother of the petitioner) was admittedly the owner and landlady. She died on 10-1-1990 due to cancer and prior to it was away in connection with her treatment at Delhi during which the property in dispute, according to the petitioner, has been got allotted illegally by the respondent no. 3 in his favour, who manipulated the things and in connivance with the Rent Control and Eviction Officer and outgoing tenant, took the possession of the said accommodation in utter violation of law, without any notice to him or his mother Smt. Ram Pyari. THE facts of the case may be noted in brief. One Gyan Prakash Agarwal, the respondent no. 3 filed an application for allotment of ground floor accommodation of the afore stated premises on 20-10-1987 with the allegations that the erstwhile tenant namely Shri Kashi Nath Sahai has expired and the accommodation in question is vacant. On the said application, the A.C.M. II on 30-10-1987 passed the following order:- "Ahlmed send to RCI for report." THE Rent Control Inspector submitted a report dated 31-10-1987, a copy whereof has been filed as Annexure-2 to the writ petition, without serving a notice on the landlady, as required under Rule 8(2) of the Rules framed under U.P. Act No. 13 of 1972. On the basis of the said report, vacancy in respect of the said premises was notified and it was ordered that it may be published in Hindi newspaper "Dainik Vishwamitra". In response to the aforesaid notification of vacancy, lone application of respondent no. 3 was there for allotment. THE said accommodation was allotted by order dated 12-11-1987. Further case is that the entire proceedings including the alleged notification of vacancy dated 31-10-1987 and the alleged allotment order dated 12-11-1987 were in complete violation of mandatory requirement of the Act (U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972) and the Rules and also in violation of principles of natural justice. THEse orders were passed in utter violation of known principles of law. THE landlady came to know about the alleged allotment order on 14-11-1987, when she came to Kanpur. On the next day, she filed an application under Section 16(5) of the Act before the authority concerned. She also preferred a revision before the District Judge, Kanpur being rent revision no. 160 of 1987. She had to go back to Delhi on 23-11-1987 to attend the hospital on 24-11-1987. She was thereafter hospitalised in AIIMS New Delhi as indoor patient from 27-11-1987 to 11-12-1987. She ultimately expired on 10-1-1990 during the pendency of the rent revision no. 160 of 1987. THE said revision was dismissed on 22-12-1990. THE matter was carried in writ petition no. 4477 of 1991 before this Court, which was disposed of by order dated 20-2-1995, directing that the application filed under Section 16(5) of the Act to be dispose off. In pursuance of the judgment of this Court passed in aforestated writ petition no. 4477 of 1991, the petitioner filed a review application dated 6-3-1995 inviting the attention of the Rent Control and Eviction Officer towards the judgment of this Court passed in the aforestated writ petition. THE respondent no. 3 herein, filed objections to the said review application of the petitioner. THE parties led evidence in support of their respective cases. Ultimately, by the order dated 20-3-1996, the application preferred by the petitioner under Section 16(5) of the Act, was rejected. THE said order was challenged by way of revision, which too has been dismissed by the impugned order dated 23-10-1987. Challenging the legality and validity of the aforestated two orders, the present writ petition has been filed. In the counter affidavit filed on behalf of respondent no. 3 to the writ petition, it has been stated that the Rent Control Inspector submitted a report after due notice, in accordance with law. Inspection was also done in accordance with law after due notice dated 6-11-1987, issued to the petitioner. Since no release application was filed by the petitioner, the accommodation in dispute was open for allotment and it was allotted so on 12-11-1987, in his favour. Further averment is that the courts below have considered the plea of ailment of mother of the petitioner and the period of her confinement in the hospital and it was rightly found by them to be false and frivolous. Along with the counter affidavit, copy of two documents namely, order dated 31-10-1987 declaring the vacancy and the objections preferred by the respondent no. 3 to the review application have been annexed. A rejoinder affidavit has been filed reiterating the contents of the writ petition. Heard Sri Nishant Mehrotra, learned counsel for the petitioner and Sri A.N. Sinha, learned counsel for the contesting respondent no.3. THE learned counsel for the petitioner submits that the entire proceeding was conducted behind the back of the petitioner and his mother. No notice was served before or after inspection by the Rent Control Inspector or before passing the order of declaration of the vacancy by the Rent Control and Eviction Officer. THE submission is that it is a clear case of house grabbing. In contra, the learned counsel for the contesting respondent no. 3 submits that the landlady was duly served with notice as concurrently found by the two courts below. THE said finding is essentially finding of fact and no interference is called for. THEre being no application for releasing the disputed accommodation from the side of the petitioner/landlady, the accommodation in question has been validly allotted in favour of the respondent no.3. Considered the respective submissions of the learned counsel for the parties and perused the record. It has been held by the Apex Court in Yogendra Tewari Vs. District Judge, Gorakhpur and others, 1984(2) ARC 7 that in view of Rules 8(2) and 9(3), a duty has been cast upon the Rent Control and Eviction Officer to serve a notice upon the landlord before inspection, as provided for under Rule 8(2) of the Rules framed under the Act. Further, after declaration of vacancy, a duty has been cast under Rule 9(3) to issue a notice to the landlord intimating him the date fixed for consideration of question of allotment. THE main point mooted in the present writ petition is as to whether the notices as required under Rules 8(2) and 9(3) were given to the petitioner or his mother before passing of the impugned allotment order in favour of respondent no.3. Rules 8(2) and 9(3)of the Rules framed under the Act reads as follows: "Rule 8(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 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 pasting, and if in the meantime any objection is received, not before the disposal of such objection. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Rule 9(3) Immediately after the receipt of intimation 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 the 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 cases of all applicants registered in the register mentioned in Rule 10 and shall pass an order under section 16 in accordance with Rules 10 and 11." THE Apex Court in Yogendra Tewari (supra) has examined the relevant provisions of the Act , section 12 in particular, and held that allotment by the District Magistrate under Section 16(1)(a) of the Act, consists of two stages. THE first stage is actual vacancy of a building or a part thereof in consequence of an intimation given by the landlord or the tenant under Section 15, or a declaration of deemed vacancy of such building or part thereof, under Section 12(4). THE District Magistrate in view of proviso to Section 16(1) in the case of deemed vacancy is required to give an opportunity to the landlord or the tenant, as the case may be, of showing that no declaration of deemed vacancy under Section 12(4) could at all be made in his case before making an order of allotment under Section 16(1)(a). Emphasis has been laid on use of word "shall" in proviso to Section 16(1)(a) of the Act. It has been held that use of word "shall" manifest the legislative intention that it has been used with a view to make Section 16(1)(a) mandatory. In other words, the District Magistrate cannot make an order of allotment under Section 16(1)(a), on the strength of deemed vacancy under Section 12(4) until the landlord or the tenant, as the case may be, had an opportunity of being heard in the matter. THE Apex Court thereafter considered Rule 8(2). After great deal of discussions of various statutory provisions of the Act, it has been laid down as follows: ".............As vacancy, actual, expected or deemed, is a jurisdictional fact for the making of an order of allotment under Section 16(1)(a) or for an order of release under clause (b) thereof, the District Magistrate must follow the procedure prescribed under the Act and the Rules framed thereunder. Even in the absence of these provisions viz. Proviso to Section 16(1) and Rules 8(2) and 9(3) of the Rules framed under Section 41 of the Act, the principle of audi alteram partem would clearly be applicable. THE District Magistrate in making an order of allotment under clause (a) or an order of release under clause (b) of Section 16(1) clearly exercises a quasi-judicial function and therefore he has the duty to hear. THEre must be an impartial objective assessment of all the pros and cons of the case after due hearing of the parties concerned. THE impugned order of allotment passed by the Rent Control and Eviction Officer having been made without affording to the appellant an opportunity to have his say in the matter was clearly a nullity." In Ganpat Roy and others Vs. Additional District Magistrate and others, 1985(2) ARC 73, it has been held that vacancy cannot be declared by a court without hearing the landlord or the tenant, as the case may be, in view of proviso to Section 16(1) of the Act. THE aforesaid decisions of the Apex Court leave no room of doubt that providing opportunity of hearing to the landlord or the tenant, as the case may be, before passing of allotment order is mandatory. THE said proposition was not and could not be disputed by the learned counsel for the respondent no.3. It is not necessary for me to dwell upon this issue any further, except to notice the cases which have been relied upon by the learned counsel for the petitioner in support of above proposition of law. THEy are as follows: 1.Smt. Mitam. Patel and another Vs. V Additional District Judge, Kanpur and others, 2008(8) ADJ 365 (DB)
(2.) KUSUM Lata Yadav (Smt.)Vs. Additional District Judge, Moradabad and others,2004(2) ARC 789 Chandra Kant Nagarkar Vs. Vth Additional District Judge, Gorakhpur, 2004(2) ARC 349 Ratan Lal poddar Vs. Vth Additional District Judge, Gorakhpur and others, 2003(2) ARC 629
(3.) JYOTI Prasad Gongal (Sri) Vs. IInd Additional District Judge, Agra and others, 2009(1) ARC 435 Jagdish Vs. District Judge, Kanpur Nagar and others, 2002(1) ARC 327. In the case of Kusum Lata Yadav (supra), this Court after taking into consideration various pronouncements of the Apex Court including Yogendra Tewari Vs. D.J. AIR 1984 SC 1149 and Ganpat Roy Vs. A.D.M., AIR SC 1635 has held that an allotment order is bad in law and without jurisdiction in any of the following contingencies:- (i) Inspection is made by R.C.I., without notice to landlord in violation of Rule-8. (ii) No notice is issued to the landlord before declaring vacancy. (iii) No notice is issued to the landlord after declaring vacancy and before allotment. (iv) Allottee takes possession from the previous tenant." Reverting to the facts of the present case, the question, which arises is whether the inspection was made by the Rent Control Inspector with or without notice to the landlady. The said question does not detain much as the answer has been provided by the report itself. A copy of the said report of Rent Control Inspector has been annexed as Annexure-2 to the writ petition. There are only three paragraphs in all in the said report. In paragraph-1 the Rent Control Inspector has stated that he inspected the house no. 62/44 Harbans Mohal, Kanpur which was found locked at the time of inspection. The neighbours informed him that one Shri Kashi Nath Sahai, who has died was the tenant and after his death his nephew Rajiv Srivastava has put on lock. In paragraph-2 it has been stated that one Rajiv Srivastava appeared along with a written statement and claimed that he was residing along with his uncle Shri Kashi Nath Sahai, who died on 8-6-1981, issueless and had intention to vacate the disputed accommodation. The said statement was corroborated by two persons Suresh Chandra Misra and Ram Prakash Gupta. In paragraph-3 of the report, which is more crucial, it is stated that it was told to him that one Smt. Ram Pyari Devi, resident of 65/57, Harbans Mohal was stated to be the owner of the accommodation in question but she could not be contacted in spite of efforts. It is axiomatic that the Inspector before making the inspection did not make any effort to ascertain even the name of the landlady what to say about issuance of any notice. Evidently, no notice to the landlady about the intended inspection was issued. Rule 8(2) provides that inspection of a building 'so far as possible' shall be made in presence of landlord and the tenant or any other occupant. Obviously, the alleged inspection was not made either in presence of the landlady or the tenant. The Inspector, as per his report, found the disputed accommodation locked on the date of alleged inspection. It is significant to note that the report is completely silent regarding the date on which he carried out the alleged inspection. Reading of the report, as a whole, would show that, as a matter of fact, the said report is a manipulated document and, at any rate, it is liable to be ignored for the reason that the requirement of giving notice of inspection to the landlady has not been fulfilled. The Inspector was not sure about the name of the owner of the disputed accommodation what to say of giving any notice to such owner. In paragraph 5(a) of the writ petition it has been pleaded specifically that the Rent Control Inspector neither served notice on Smt. Ram Pyari, the then landlady of the premises in question, nor any notice of his intended visit to the tenant of the disputed accommodation. The Rent Control Inspector never inspected the disputed accommodation, which was in the tenancy of said Shri Kashi Nath Sahai from inside and did not carry out the inspection in presence of two respectable witnesses of the locality and submitted a table report merely on a statement of a person, who gave his name as Raju and met him in his office without any identification of the said person by any respectable person and without even testing the truth of the statement of the said person by requiring the said person to open the lock and inspecting the disputed accommodation from inside. In reply to the aforesaid plea, in the counter affidavit, only this much has been stated "that inspection was done after due notice to the petitioner in accordance with law". The said reply is wholly vague and evasive. How the notice was served is a matter of record. Had there been any notice to the landlady, the respondent no. 3 could have referred the said document in his reply. It follows that the contents of para-5(a) of the writ petition stands uncontroverted. Material on record also corroborates it. Further in paragraph 5(b) of the writ petition it has been pleaded that the report of the Rent Control Inspector was submitted in complete breach of mandatory requirement of carrying out the inspection under Rule 8(2) framed under the Act. In reply thereof, no specific material has been referred in the counter affidavit and the said allegations have been sought to be met by making a general denial in paragraph-4 of the counter affidavit. However, this is not end of the matter. Even the allotment order has been passed in flagrant violation of the relevant provisions as contained in the Act, which is evident from the following facts which are almost undisputed. (1)The premises in question is premises no. 62/44 indisputably. However, with a view to play fraud, the notice of vacancy was published in respect of premises no. 62/114, a different premises and not with regard to premises in question i.e. 62/44. A photostat copy of the certified copy of the said document in support of the above plea has been filed as Annexure-4 to the writ petition. A bare perusal of the said document would show that the vacancy was notified in respect of house no. 62/144, a different accommodation. In reply, it has been stated in the counter affidavit that the respondent no. 3 is filing a certified copy of the said document but it was not done so. Nor certified copy was produced during the course of the arguments. In this view of the matter, the plea that the vacancy was not notified in respect of premises no. 62/44, as raised by the petitioner, deserves acceptance. (2) Further, a bare perusal of the said order would show that Rent Control and Eviction Officer ordered that the said vacancy notice be published in Hindi newspaper 'Dainik Vishwamitra'. It has been stated in clear terms that the said notice was not published, as was directed, in Hindi newspaper 'Dainik Vishwamitra', vide paragraph 7(d) of the writ petition. In support thereof, the petitioner has annexed a communication dated 16-1-1991 from the Manager of the said newspaper as Annexure-5 to the writ petition. The respondent no. 3 in paragraph-5 of the counter affidavit could not even dare to controvert the said averments made in the writ petition. It, therefore, follows that the notification of vacancy, as was ordered to be published in Hindi newspaper 'Dainik Vishwamitra' was, as a matter of fact, never published. (3)The matter was taken up on 6-11-1987. Notice to the landlady was ordered to be issued on the said date i.e. 6-11-1987, inviting objections fixing same date i.e. 6-11-1987, which is apparent from Annexure-6 to the writ petition. This itself is sufficient to show that as a matter of fact no notice was intended to be given by the authority concerned. On the same day the following order was passed:- "6-11-87- vkt i=koyh is'k gqbZ i{kksa ds uksfVl okn rkehy lkfey fef'ky gqvkAdksbZ vkifRr izLrwqr ugha gqbZA vr% vkns'k gqvk iznf'kZr lEHkkfor fjDrrk dh iqf"V dh tkrh gSA i=koyh okLrs fuLrkj.k vkoaVu izkFkZuki= fn0 12-11-87 dks is'k gks x'g Lokeh dks fu;e 9(3) ds vUrxZr uksfVl tkjh dh tk,** (4)In paragraphs 8(a) and (b) it has been stated that from the inspection of the record of the case it transpired that there is no such notice addressed to Smt. Ram Pyari fixing 6-11-1987 for objection. Therefore, the contention is that the report of process server that notice was allegedly refused on 4-11- 1987 is against the record and as such, the finding of service recorded by the courts below with regard to service of notice as required under Rule 9(3) of the Rules is perverse and based on no evidence. In reply to the said paragraphs, the allegations made that any notice addressed to Smt. Ram Pyari fixing 6- 11-1987, is not there on record, has not been denied specifically. The alleged report of the process server dated 4-11-1987 is obviously manipulated one. The facts, as noticed above, do clearly show that no notice was given to the petitioner before declaring the accommodation in question as vacant. Rent Control and Eviction Officer did not record any finding regarding sufficiency of service of the alleged notice dated 6-11-1987 on Smt. Ram Pyari even. The order dated 6-11-1987 has, therefore, been passed in utter violation of principles of natural justice as also violative of Rule 8(2) of the Rules framed under the Act. The alleged notice under Rule 9(3) inviting objections and fixing 12-11-1987 for disposal of allotment application has been allegedly served by affixation. The process server in his report dated 10-11-1987 has reported that Smt. Ram Pyari Devi refused to accept the notice and, therefore, the said notice has been affixed. The said allegations have been denied by the petitioner. Necessary averments have been made in paragraphs 10(a) to 10(e) of the writ petition. It has been stated that the alleged report of the process server dated 10-11-1987, is a got up one and totally wrong. The said notice was never given to Smt. Ram Pyari nor she ever refused to accept any such notice. It has been stated specifically that Smt. Ram Pyari was in New Delhi on the relevant date in connection with her treatment for cancer at AIIMS New Delhi. No such affixation was done by the process server on the door as alleged in the said report dated 10-11-1987. She was confined in AIIMS New Delhi in connection with her treatment of cancer. None of the courts below have disbelieved that the landlady was not confined to the hospital in connection with her treatment during the aforesaid period nor the respondent no. 3 could dare to deny the said case of the petitioner. Documents were filed to show that she was getting treatment in AIIMS New Delhi. In support of the the aforesaid case, a certificate issued from AIIMS New Delhi dated 11-12- 1987 by Dr. Udai Pratap Shahi was enclosed by the petitioner as Annexure-1 to the affidavit filed before the Rent Control and Eviction Officer along with review application which reads as follows: " To whom it may concern 0 This is to certify that Mrs. Ram Pyari, age 60 years, Female (IRCH No. 2391, RT-3522/87) is a proven case of Carcinoma Carvix. She has been treated with Radical Radiotherapy at our Centre w.e.f. 22-9-87 to 11- 12-87. She is advised to visit our clinic regularly for follow up and/or further management. Dr. Uday Pratap Shahi Sr. Resident Radiation Oncology IRCH A.I.I.M.S. New Delhi-29" The above certificate shows in clear terms that the landlady was receiving treatment during 22-9-1987 to 11-12-1987. There being no material controverting the said fact, the alleged report of the process server is patently erroneous and got up one. In this connection an evasive reply in paragraph-8 of the counter affidavit has been given by the contesting respondent no. 3 stating that "service of notice has no relevancy in the present dispute". It is thus proved from the record that the alleged service report is a vague report and the landlady was never served with the notice as contemplated under Rule 9(3) of the Rules framed under the Act. The said position stands admitted, there being no denial from the side of the respondent no. 3, as discussed above. It is disturbing to notice that when this point was urged before the revisional court, the revisional court has dealt with the matter in a very cursory manner and was totally confused. Inference of service of notice as required under Rule 8(2) has been sought to be drawn on the basis of notice dated 6-11-1987, while the report of the Inspector is anterior to it i.e. 31-10-1987. The revisional court has failed to appreciate the real controversy involved in the revision. Requirement of law is that a notice is to be given to the landlord or the tenant, as the case may be, before carrying out the 'intended inspection'. The defect of not giving notice and carrying out exparte inspection cannot be cured with reference to a notice allegedly given subsequent to the filing of the inspection report. In view of the above discussions, it is almost admitted position that no notice was given to the landlady/petitioner before carrying out the 1 inspection dated 31-10-1987. The basis of the allotment proceeding is the inspection report dated 31- 10-1987, which itself being vitiated, the proceedings consequent thereto are resultantly void and illegal. It is unfortunate that the revisional court (Sri Ajay Kumar Sinha, the then Additional District Judge, Kanpur) has not adverted to the relevant material on the record and has some how disposed of the matter without adhering to the principles of law, on ipsi dixit. He has failed to take into consideration uncontroverted evidence on record and has tried to point out supposed contradiction in various dates given by the petitioner with regard to treatment of her mother at New Delhi by overlooking the fact that the mother of the petitioner was receiving treatment for cancer and coming and going to New Delhi and Kanpur. Ignorance of ground realities of life, is evident from the impugned order. The fact remains that she was receiving treatment during the period 27-9-1987 to 11-12-1987 as is evident from the uncontroverted certificate of the Doctor. Rule 28 of the Rules, provide various modes of service. Such as, (a) by giving or tendering it to such person, or his counsel; or (b) by giving or tendering it to any adult member of his family; or (c) if no such person is found, by leaving it at his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6; or (d) if none of the means aforesaid is available, by affixing it on some conspicuous part of his last known place of abode of business or in the case of an appeal or revision at his address as given under Rule 6. A bare reading of the aforesaid Rule would show that mode of service by affixation is available only when the other modes of service as provided under (a),(b) and (c) of sub rule (1) of Rule 28 are not available. It follows that attempt should be made to follow the modes of service in seriatim as provided in clauses (a),(b),(c) and (d). If a service is not possible to be affected in any of the modes as provided for in clauses (a),(b), (c), then service by affixation, which is the last and weakest mode, should be resorted to. There should be something on record to indicate that the other modes of service as provided for in clauses (a),(b),(c) is not available. It is not dependent upon the sweet will of the process server to affix a notice on some conspicuous part of last known place of abode of a person, if the addressee refuses to accept the notice. At the most, he should have reported the matter back to the authority concerned to pass an appropriate order. Interestingly, no attempt was made to serve the notice by registered post as contemplated under sub-rule (2) of Rule 28. Service of notice by affixation is the weakest mode of service. There are instances and instances that service of notice by affixation are many times manipulated one. On the facts of the present case, there is no difficulty in holding that at any rate the alleged service of notice by affixation on the landlady, even if, the landlady has failed to prove her illness, is manipulated one. The said service is no service in the eyes of law and the court below should have given an opportunity of hearing to the petitioner by allowing the review application. 2 In view of the above discussions, the order dated 6-11-1987 declaring the accommodation in question as vacant and the order dated 12-11-1987 allotting the disputed accommodation to respondent no. 3 are null, void and illegal having been passed in violation of mandatory provisions of Rules 8(2) and 9(3) of the Rules framed under the Act. Therefore, the courts below were not justified in rejecting the review application filed by the petitioner under Section 16(5) of the Act. Resultantly, the order dated 20-3-1996 passed by the Rent Control and Eviction Officer as confirmed on 23-10-1997 by the revisional court are hereby quashed. Section 18(3) of U.P. Act No. 13 of 1972 provides that where an order under Section 16 or Section is rescinded, the District Magistrate shall, on an application being made to him on that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose use or cause to be used such force as may be necessary. In other words, the said Section gives power of restoration of possession to the authority concerned in the eventuality the order passed under Section 16 or 19 of the Act is rescinded. It has been found, as above, in the present case that the respondent no. 3 obtained the allotment order illegally and the said allotment order passed under Section 16 of the Act is being rescinded by the judgement, therefore, it is necessary to direct the District Magistrate and his delegatee to restore back the possession to the petitioner immediately after expiry of 15 days granted under this order. The Court expects that the District Magistrate and his delegatee will not give an opportunity to the petitioner to make a complaint to this Court against him in this regard. The writ petition succeeds and is allowed with costs of Rs. 10,000/-, payable by the contesting respondent to the petitioner within 15 days. The respondent no. 3 is directed to handover peaceful vacant possession of the accommodation in dispute to the petitioner on or before 30-4-2009. If the respondent no. 3 fails to hand over vacant possession, as directed above, the respondent no. 2 is directed to get the possession delivered to the petitioner within 15 days from the date, the petitioner files such an application. He shall also provide police force, if necessary, and shall evict the respondent no. 3 or any person, who so ever may be found on the spot and put the petitioner in actual physical possession of the property in dispute. The contesting respondent shall also be liable to pay the damages @ Rs. 200/- per day, till actual delivery of possession to the petitioner.;