S.D.Agarwala, J. - (1.) This is a petition under Article 226 of the Constitution of India challenging the order of the Additional District Judge, Kanpur, dated 20th of July 1977. Briefly, the relevant facts giving rise to the present controversy are as follows:- The property in dispute is house No. 52/24,' Nayaganj, Kanpur. Initially one M/s. Kishan Chand Gulab Chand was the tenant of the said premises. Thereafter according to the case of the contesting parties, M/s. Gupta Ayurvedic Pharmacy respondent No. 1 came into possession of the premises. In paragraph 4 of the counter-affidavit filed on behalf of respondent No. 1 in this Court it is admitted that the accommodation in dispute was used for residential purposes by the employees of M/s. Gupta Ayurvedic Pharmacy.
(2.) Thereafter an application was made for allotment of the premises on the ground that the property should be deemed to be vacant under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972, hereinafter referred as the Act. The Inspector visited the spot and oh 31st December 1973, he submitted his report, under Rule 8 of the Rules framed under the Act, hereinafter referred to as the Rules. Thereafter proceedings in respect of declaration of vacancy started. Respondent No. 1, M/s. Gupta Ayurvedic Pharmacy filed objections to the vacancy report submitted by the inspector. The proceedings went on in this connection and on 31st July 1975 the landlord of the premises Munni Lal Gupta also gave a statement before the Rent Control and Eviction Officer. After hearing respondent No. 1 the alleged occupant of the premises in dispute and respondent No. 2, the landlord, the Rent Control and Eviction Officer declared the property as vacant on 2nd January 1976. After declaration of vacancy the Rent Control and Eviction Officer pasted this notice on the notice-board and waited for a month and half and thereafter on 18th February 1976 allotted the premises in favour of the petitioner Roshan Lal Agarwal. Against the allotment order, an appeal was filed by respondent No. 1 before the Additional District Judge, Kanpur. The appeal was allowed by the Additional District Judge, Kanpur on 20th July 1977 and the order of allotment passed in favour of the petitioner was set aside. The petitioner aggrieved by the said decision cancelling his allotment Order has filed the present petition in this court challenging the order dated 20th July 1977. By the impugned order the court held that legally the house fell vacant under Sec. 12 (3) of the Act, but set aside the allotment order on the sole ground that there was non-compliance of Rule 8 (2) of the rules inasmuch as the inspection was not done in the presence of the landlord.
(3.) Learned counsel for the petitioner has urged that the view taken by the appellate court that there was non-compliance with Rule 8 (2) of the Rules is manifestly erroneous. His submission is that Rule 8 (2) of the Rules is only directory and not mandatory.;