JUDGMENT
S.U. Khan, J.
1. By order dated 13.10.1986 this writ petition was admitted and connected with Writ Petition No. 15452 of 1985. The said petition of 1985 was dismissed in default on 23.9.2003 by Hon. S. Harkauli, J. Restoration application was also dismissed on merit on 20.10.2003. A second restoration application is pending.
2. This writ petition on behalf of the landlords is directed against allotment order under Section 16 (1) (a) of U. P. Act No. 13 of 1972, passed in favour of respondent No. 4 by Rent Control and Eviction Officer, Gorakhpur, dated 1.12.1982 and judgment and order dated 26.8.1986, passed by Vth Additional District Judge, Gorakhpur, dismissing Civil Revision No. 506 of 1982 which was filed under Section 18 of the Act and was directed against aforesaid allotment order dated 1.12.1982.
3. Initially the building in dispute was in tenancy occupation of U. P. State Electricity, Board through Executive Engineer, Hydel, Distribution Division, III, Gorakhpur (hereinafter referred to as U.P.S.E.B.). Respondent No. 4 filed application for allotment of the said building on 27.9.1982 alleging therein that U.P.S.E.B., the tenant was likely to vacate the building. According to para 5 of the counter-affidavit filed on behalf of respondent No. 4 “the aforesaid application of respondent No. 4 was forwarded by the rent control authority to the Executive Engineer, Electricity Distribution Division, III to ascertain the fact whether the building in question was going to fall vacant or not. The Executive Engineer, Electricity Distribution Division, III on 13.10.1982, made an endorsement on the said application of respondent No. 4 to the effect that the building would be vacated by November, 1982.”
4. In the allotment application the name of the landlord was mentioned as Shanta Ram Nagarkar (S. R. Nagarkar in short) the father of all the three petitioners.
5. Rent Control Inspector Inspected the premises on 17.11.1982. Vacancy was declared on 19.11.1982 and allotment order in favour of respondent No. 4 was passed on 1.12.1982. Petitioner took possession of the property in dispute on the same date on which allotment order was passed, i.e., 1.12.1982. In the allotment order, copy of which is Annexure-6 to the writ petition it is mentioned that;
“Vacancy of house in question has been declared by my order dated 19.11.1982. For the allotment of house in question solitary application of Sri Amar Mani Tripathi has been received. Therefore, house in question is allotted in favour of Sri Amar Mani Tripathi. Accordingly order be issued.”
6. In the allotment order neither there is any fixation of rent nor any direction for payment of one month’s advance presumptive rent. However, along with counter-affidavit copy of Form B, allotment order dated 1.12.1982 has been annexed. In the last but one paragraph of the said Form B it is mentioned that:
“Allottee is expected to pay or offer one month’s presumptive rent of Rs. 95 to the landlord in accordance with Section 16 (9) of the Act.”
7. In the last paragraph of the said Form B it is mentioned that landlord is directed to deliver possession to the allottee till date … (no date mentioned) or within ten days from the date of its vacation by Executive Engineer, Electricity Distribution Division, III.
8. Before Rent Control and Eviction Officer on behalf of landlords no one appeared. All the orders passed by Rent Control and Eviction Officer are ex parte. The landlords petitioners put forward their case for the first time before revisional court.
9. The first point of controversy in between the parties is regarding ownership/landlordship of property in dispute at the time when allotment order was passed. According to the petitioners under oral family partition property in dispute had fallen in their share and U.P.S.E.B. on being intimated about the said fact by the petitioners as well as their father (S. R. Nagarkar who was previously owner-landlord) started paying rent to the petitioners. Copies of some cheques of 1981 through which U.P.S.E.B, paid rent to the petitioners have been annexed along with the writ petition. According to the petitioners suit for partition in between them and their father was also decreed on 26.2.1982 on the basis of compromise containing the earlier oral family partition. According to respondent No. 4 in the house tax assessment register the change of ownership was recorded only in 1984 hence prior to that petitioners cannot be said to be owners/landlords of the property in dispute. The main reason for which this controversy has been raised is that according to R.C. and E.O. and respondent No. 4 notice was issued by R.C. and E.O. to S. R. Nagarkar who refused to accept the same hence it was affixed on his door. While according to petitioners firstly, the said notice even if served upon their father was of no value as at that time they were the owners-landlords and not their father and secondly, no notice was served even on their father. S. R. Nagarkar father of the petitioners has also supported the case of the petitioners.
10. I do not propose to decide as to whether petitioners or their father were owner-landlord of the house in dispute at the time of allotment as in my opinion no proper notice was served even upon S. R. Nagarkar father of the petitioners.
11. Second half portion of para 6 of revisional court judgment, which is based upon perusal of the file of R.C. and E.O. reads as under :
“Paper No. 6 of the file of R.C. and E.O., which is the report of Inspector, suggests that the inspection of the building as required under Rule 8, was done on 17.11.1982. On 19.11.1982, the vacancy was declared, as per order of R.C. and E.O. passed. Paper No. 6 and the order sheet of 19.11.1982 contain that order. The vacancy was notified for information of general public on the notice board, which is confirmed by paper No. 7 of the said file. It also suggests that a copy of it was sent to the landlord Shanta Ram at his address Himayunpur Southern, Gorakhpur. Paper No. 8 is the report of the process server that the landlord when refused to take notice. It was affixed on his door in the presence of two witnesses.”
12. From the above. It is quite clear that the notice was sent to S. R. Nagarkar only after declaration of vacancy and before allotment, however, no notice was sent before inspection of the premises or before declaring vacancy. By virtue of proviso to Section 16 (1), Rule 8 (2) and Rule 9 (3) as interpreted by the Supreme Court in Yogendra Tiwari v. District Judge. Gorakhpur, AIR 1984 SC 1149 ; Ganpat Roy v. A.D.M., Allahabad, AIR 1985 SC 1635 ; AIR 1987 SC 22 and AIR 1998 SC 2262, it is essential to issue notice to the landlord at three stages first ; before inspection, second ; before declaring vacancy and third ; before making allotment. No notices before inspection and before ‘declaration of vacancy having been issued, the entire proceedings are liable to be quashed on these grounds alone. It is most unfortunate that the revlslonal court took notice of the first two aforesaid Supreme Court authorities but still it held vacancy declaration order to be valid, even without notice before inspection and before declaration of vacancy.
13. In para 6 of the counter-affidavit it has been stated that notice was issued by R.C. and E.O. on 16.11.1982 to S. R. Nagarkar (copy of notice has not been annexed). This statement on the face of it appears to be incorrect as by that date report of Inspector had not been submitted. Inspector submitted the report on 17.11.1982. The notice of inspection is normally given by Inspector and not by R.C. and E.O. in any case even if it is assumed that notice was given on 16.11.1982 then it must have been of the inspection, which was allegedly done on 17.11.1982. In that eventuality vacancy declaration order dated 19.11.1982, will have to be treated without notice and ex parte as no notice of the date on which vacancy was to be considered along with the gist of the report of the R.C.I. was given to the landlord as required by proviso to Section 16 (1), in that case allotment order would also become illegal for want of notice under Rule 9 (3) to the landlord after declaration of vacancy and before allotment.
14. The undue haste shown by the R.C. and E.O. in allotting the premises to the respondent No. 4 also shows that proceedings were not conducted fairly. Within two days from the receipt of report of R.C. I vacancy was declared and then within 11 days the building was allotted to the respondent No. 4. The experience of the Court is that proceedings under Section 12/16 of U. P. Act No. 13 of 1972, before R.C. and E.O. move at snails pace. The case was of likely vacancy and house had not actually been vacated till the passing of allotment order, hence, there was all the more no necessity, to show undue haste. In any case the least which was expected of R.C. and E.O. was to issue notice to the landlord through registered post as provided for under Rule 28 (2) of the Rules framed under U. P. Act No. 13 of 1972.
15. Accordingly, I hold that no notice was served on S. R. Nagarkar and R.C. and E.O. acted in undue haste, hence order of declaration of vacancy and allotment are not in accordance with law and liable to be set aside.
16. The second aspect required to be considered is applicability of Section 15 of the Act. Section 15 deals with intimation of vacancy or likely vacancy. Section 15 (2) states:
“Every tenant so vacating a building shall give notice thereof in writing to the District Magistrate and also to the landlord not less than fifteen days before the vacancy.”
17. In the instant case, there is neither any allegation nor anything on record to show that U.P.S.E.B. gave any notice to the landlord of its intention to vacate. R.C. and E.O. adopted a novel procedure of sending the allotment application in original to U.P.S.E.B. for verification. No Court or authority is expected to send its original record to the contesting parties or to any one else. However, if R.C. and E.O. was so benevolent towards tenant U.P.S.E.B. then the same facility should have been extended to the landlord also. In any case by virtue of Section 15 (2) of the Act, if R.C. and E.O. receives an intimation of likely vacancy by, the tenant or any other person then it must be verified from the tenant as to whether he has intimated the landlord about his intention to vacate or not. In case tenant fails to satisfy the R.C. and E.O. that he has given such intimation to the landlord then before proceeding further, R.C. and E.O. must require the tenant to give such intimation before proceeding further with the case. In the instant case, no such thing having been done, entire proceedings of allotment and culminating order of allotment is liable to be set aside.
18. The third aspect to be examined in this case is the mode of taking possession by respondent No. 4. Building in dispute was allotted to the respondent No. 4 on 1.12.1982, in anticipation of vacancy. Till that date vacancy had not actually been occurred. On that very date respondent No. 4 took possession from previous tenant U.P.S.E.B. According to the tenant U.P.S.E.B. it was forcibly evicted by respondent No. 4 and according to respondent No. 4 tenant U.P.S.E.B. willingly gave the possession to him on the basis of allotment order of the same date. There is nothing on record that Form C or D were issued.
19. Under Section 16 (3) (c) it is provided that allotment order shall specify the date, which shall not be earlier than seven days after the date of the order by which the landlord shall deliver possession to the allottee. Under Rule 12 of the Rules framed under U. P. Act No. 13 of 1972 it is provided that allotment order shall be issued in Form ‘B’. Third paragraph of Form ‘B’ is quoted below :
“The landlord is also directed to deliver possession of the building/part of building to the allottee by (date) …………or within ten days of its being vacated by Shri…………………… and that such building/part of building shall be used by the allottee for residential/ non-residential purposes.”
20. Annexure-1 to the counter-affidavit filed on behalf of respondent No. 4 is the allotment order in Form ‘B’ (in favour of respondent No. 4). The last paragraph of the form itself states that landlord is directed to deliver possession to the allottee till date (no date is mentioned) or within ten days from vacation of the house by the Office of Executive Engineer, Distribution Division-III. The authenticity of this Form is discussed in the latter part of this Judgment.
21. From the above it is quite clear that in case of allotment on the ground of likely vacancy the outgoing tenant shall first deliver possession to the landlord and thereafter landlord shall handover the possession to the allottee. Under Rule 14 of the Rules it is provided that where any building about to fall vacant is allotted, proceedings for putting the allottee in possession shall be taken by the R.C. and E.O. after the building has actually fallen vacant or is held by him through an enquiry conducted in that behalf to have fallen vacant.
22. In view of this even if allotment order is held to be valid, the act of respondent No. 4 of taking possession from the outgoing tenant directly is wholly illegal and not warranted by any provision of law.
23. In the copy of Form B annexed as Annexure-1 to the counter-affidavit, bearing date 1.12.1982, in the last but one paragraph, it is mentioned that the allottee is expected to pay or offer to pay Rs. 95 as one month’s advance presumptive rent to the landlord. Form B is merely a proforma provided under rules framed under U. P. Act No. 13 of 1972. It contains only those facts and figures which are mentioned in the allotment order. In the allotment order which is Annexure-6 to the writ petition, there is no mention of any rent or any direction to pay any rent. In the end of the allotment order, it is mentioned, “Accordingly order be issued”.
24. In this view of the matter, it is not understandable as to how amount of rent and direction of its payment was mentioned in Form B. The only possible conclusion is that realising the error in the allotment order it was sought to be rectified afterwards by preparing Form B (copy of which has been annexed as Annexure-1 to the counter-affidavit) and inserting the same in the file. The proforma Form B copy of which has been annexed as Annexure” C.A. 1 contain direction to the landlord to deliver the possession. However, there is no allegation that this Form B was issued to the landlord. When possession had been taken almost simultaneously with passing of the allotment order then there was no question of preparing Form B and issuing the same to the landlord.
25. It is therefore, clear from the above that neither any rent was fixed while making allotment nor any direction was issued to the tenant to pay one month’s presumptive rent.
26. By virtue of definition of lease under Section 105 T. P. Act, lease is a transfer of a right to enjoy the property in consideration of money to be paid periodically to the transferor by the transferee. Therefore, there cannot be any lease/tenancy/allotment without fixation of rent. Secondly in absence of direction by R.C. and E.O. to pay or offer to pay one month’s advance presumptive rent, the allotment order becomes illegal under Section 16 (9) of the Act, Failure of allottee to pay or offer one month’s advance rent within a week renders the allotment order liable to be rescinded [16 (9) (b)].
27. In the counter-affidavit sworn on 23.9.2003 and filed on 25.11.2003, nothing has been stated regarding payment or offer of any rent by respondent No. 4 to the landlord. During the argument it was inquired from the learned counsel for the respondent No. 4 as to whether respondent No. 4 had ever paid any rent to the landlord. Learned counsel for the respondent No. 4 could not inform the Court about the payment of any rent by respondent No. 4 to the petitioner or to the father of the petitioner. Petitioners have asserted that neither they nor their lather was ever paid any rent by respondent No. 4. Respondent No. 4 is therefore, enjoying the possession for 22 years without payment of any rent.
28. The allotment order is, therefore, illegal and liable to be set aside on the ground of non-fixation of any rent and on the failure of allottee respondent No. 4 to pay or offer to pay one month’s advance presumptive rent.
29. Almost all the above points have already been decided by me in an authority in R.L. Poddar v. A.D.J., Gorakhpur, 2003 (2) ARC 629.
30. The next point to be considered in this case is the effect of not challenging the vacancy declaration order. In Ganpat Roy’s case, AIR 1985 SC 1635, it was observed at one place that vacancy declaration order cannot be challenged in revision under Section 18 of the Act directed against release or allotment order passed under Section 16 of the Act. In Achal Mishra’s case, 2000 (4) AWC 2960 (SC) : 2000 (2) ARC 446, the said observation was doubted by a Division Bench of two Judges of Supreme Court and the matter was referred to the larger Bench. In the authority of Ganpat Roy, it has been held that revlstonal court while hearing revision under Section 18 of the Act cannot look into the validity of vacancy declaration order. However, no such restriction can be placed upon the High Court hearing the writ petition. In the instant writ petition allotment order dated 1.12.1982 has also been challenged. The said allotment order is based upon vacancy declaration order, hence, while hearing writ petition against the allotment order validity of vacancy declaration order can also be looked into on the principles of Section 105, C.P.C., according to which “Where a decree is appealed from. any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.” In the ground of instant writ petition objections against order of declaration vacancy have been taken. In this regard it is also important to note that the requirement to hear before declaring vacancy under Section 12 of the Act is provided under proviso to Section 16 (1) of the Act. If vacancy is declared without issuing notice and hearing parties concerned then it is violation of Section 16 of the Act. The consequent allotment order, which is passed under Section 16, itself, will be in violation of the said section. When an order passed under Section 16 is challenged before the Court then the said Court can very well see whether the impugned order is in accordance with Section 16 of the Act or not.
31. Learned counsel for respondent No. 4 has argued that as at the time of allotment petitioners were not landlords hence they are not entitled to challenge the allotment order. Even if it is assumed that petitioners were not landlords at the time of allotment still there is no doubt that afterwards they became landlords. This fact is rather admitted by respondent No. 4, in this view of the matter petitioners even if they are held to have become landlords after passing of the allotment order are entitled to challenge the allotment order after becoming the landlord, on those grounds which were available to their father previous landlord at the time of passing of the allotment order. By virtue of Section 109, T.P. Act any benefit which has accrued to the landlord against the tenant stands transferred to the transferee landlord. The principle of the said section applies to transfer through operation of law also. In this regard reference may be made to the authority of the Supreme Court in C. B. R. Bora v. Board of Trustees of the Port of Bombay, AIR 1991 SC 14.
32. While interpreting Section 5, Limitation Act Supreme Court in Collector, L. A. Anantnag v. Katiji, 1987 (1) AWC 675 (SC) : AIR 1987 SC 1353, laid down six principles. The sixth principle, which is quoted below, is also relevant for the cases like the present one.
“6. It must be grasped that judiciary is respected not on account of its power to legalize injustice in technical grounds but because it is capable of removing injustice and is expected to do so.”
33. In view of the above, allotment order is liable to be set aside.
34. Respondent No. 4 is in occupation of the property in dispute for 22 years without payment of any rent. Office of Hydel Distribution Division was being run from the property in dispute hence it must be having good accommodation. Even though no prayer for payment of any rent or damages for use and occupation has been made by the landlord-petitioner, however, in order to do complete Justice in between the parties, writ court is empowered to grant reasonable damages. In a similar case of R. L. Poddar v. A.D.J., Gorakhpur, 2003 (2) ARC 629, I awarded damages of Rs. 1,000 per month. S.L.P. No. 20272 of 2003 was filed before the Supreme Court against the said judgment, which was dismissed on 17.11.2003 by the following order :
“The special leave petition is dismissed after hearing the learned counsel for the parties on merits. In the alternative the learned counsel for the petitioner submitted that the petitioner and his family are residing in the suit premises and he may be allowed a reasonable time for vacating the suit premises. After hearing the learned counsel for the respondent, present on caveat, the petitioner is allowed time for vacating the suit premises on or before 30th June, 2004, subject to the condition that all the arrears of rent, as directed by the High Court, shall be cleared on or before 30th November, 2003 and with effect from 1st November, 2003, the petitioner shall remain liable to pay damages for use and occupation at the rate of Rs. 2,000 (Rupees two thousand) per month. The usual undertaking shall be filed by the petitioner on or before 30th November, 2003, in the High Court.
Non-compliance with any term of this order shall result in this order being vacated automatically.”
35. Accordingly, in the instant case also respondent No. 4 is directed to pay the damages for entire period of occupation at the rate of Rs. 1,000 per month to the landlord petitioner. The damages shall be paid within four months from today, falling which the same shall be realised like arrears of land revenue by Collector, Gorakhpur. for payment to the landlord-respondent. Respondent No. 4 shall vacate and hand over the possession of land in dispute to the landlord within two months from today failing which District Magistrate shall deliver possession to the landlord within two weeks from the date of expiry of two months period i.e., from 23.9.2004 and file compliance report in this High Court. Any leniency or laxity on the part of Collector/District Magistrate will not be appreciated by this Court.
36. Allotment order dated 1.12.1982 and the order of revisional court dated 26.8.1986 are quashed.
37. Writ petition is allowed accordingly.