KESHAV DEVI Vs. GIRDHARI LAL PAHWA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the High Court of Allahabad (Lucknow Bench) dt. January 20, 1984 setting aside order of the Addl. District Judge, Lucknow dt. January 18, 1983 and quashing the allotment order made in appellant's favour and directing the Addl. District Magistrate (Civil Supplies). Lucknow to reconsider the applications made for allotment of the premises in dispute after giving notice to the respondent-landlord.

(2.) The dispute relates to 1st floor of House No. 109/16 situate in Model House Colony. Aminabad, Lucknow. Mauji Ram Gupta the owner of the house was residing in the ground floor of the house while the 1st floor was let out to a tenant. Vacancy in the first floor arose, several persons including the appellant, H.C. Ghildiyal and Ramakant Srivastava made applications for allotment of the same. Mauji Ram Gupta, the landlord also made an application for the release of the premises to him under Sec. 16 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The Addl. District Magistrate, respondent No. 4 by his Order dt. 25-2-76 rejected Mauji Ram Gupta's application and allotted the premises to H.C. Ghildiyal, but he did not occupy the premises instead he informed respondent No. 4 that he did not require the premises. Thereafter respondent No. 4 allotted the first floor of the house to the appellant by his order dt. July 23, 1976 and in pursuance to that order she obtained possession of the premises on 25-7-76. Mauji Ram Gupta, the landlord challenged the allotment order by means of revision application before the District Judge but the same was rejected. Mauji Ram Gupta entered into an agreement for the sale of the house with G.L. Pahwa, respondent No. 1 and in part performance of the agreement he permitted G.L. Pahwa to occupy the ground floor of the house in November 1976. G. L. Pahwa made application for allotment and the respondent No. 4 allotted the ground floor to him on 31-12-76, this appears to have been done with a view to regularise his possession. Mauji Ram Gupta executed a registered sale deed in favour of G.L. Pahwa on 18-7-77 transferring the entire house including the premises in dispute to him, as a result of which respondent No. 1 became the owner and the landlord of the premises in dispute. R. K. Srivastava an unsuccessful applicant for the allotment of the premises in dispute had challenged the allotment order dt. 23-7-76 made in appellant's favour under Sec. 18 of the Act. The District Judge by his order dt. 18-8-77 allowed his revision application set aside the allotment order made in appellant's favour and directed respondent No. 4 to reconsider the applications made for allotment of the premises in accordance with law. In pursuance of the directions issued by the District Judge respondent No. 4 considered the applications and by his order dt. 4-1-78 he again allotted the premises to the appellant and rejected the claims of other applicants. Notice of the allotment proceedings was not given to respondent No. 1, although by that time he had acquired full rights of a landlord. It appears that respondent had made an application to the State Govt. for release of the first floor and that had been forwarded by the Govt. to respondent No. 4, which he disposed of by the same order dt. 4-1-78. Respondent No. 1 filed a revision application under Sec. 18 of the Act challenging the allotment order dt. 4-1-78. He filed a review application also before respondent No. 4 for recall of the order D/-4-1-78. During the pendency of the review application the revision application made by respondent No. 1 was dismissed by the District Judge on 28-2-78 for want of prosecution. However the review application of respondent No. 1 was allowed by respondent No. 4 by his order dt. 14-12-81 on the finding that since the premises in dispute was a part of landlord's building which he was occupying, it was mandatory that notice should have been issued to the landlord and since no notice had been issued to him the allotment order was vitiated. On these findings, he recalled his Order dated 4-1-78. The appellant challenged the order by means of a revision application before the District Judge under Sec. 18 of the Act. The Addl. District Judge, Lucknow, exercising powers of the District Judge allowed the revision application by his order dt. 18-1-83, and set aside the order of respondent No. 4 D/- 14-12-81, on the findings that review application was not maintainable and respondent No. 4 had no jurisdiction to review his order on the ground of absence of notice to respondent No. 1 who was transferee landlord. Respondent No. 1 challenged the validity of the order of the Addl. District Judge D/- 18-1-83 by means of writ petition under Art. 226 of the Constitution before the High Court. A learned single Judge of the High Court allowed the writ petition by his order dt. January 20, 1984 and quashed the order of the Addl. District Judge and directed respondent No. 4 to consider the application for allotment for giving notice to respondent No. 1. Aggrieved the appellant challenged the validity of the order of the High Court.

(3.) Before we consider the submissions made on behalf of the appellant it is necessary to briefly notice the findings recorded by the High Court. The High Court held that since the District Judge while setting aside the initial order of allotment made in appellant's favour dt. 23-7-76 directed the respondent No. 4 to consider the allotment applications in accordance with law. The respondent No. 4 was under a legal duty to issue notice to respondent No. 1 who had by that time acquired rights of landlord. Since no notice was given to him the allotment proceeding was rendered illegal. The High Court further held that even though the landlord's application for release of the premises in dispute had been rejected, the transferee landlord had right to nominate a tenant of his choice in accordance with S. 17(2) of the Act. But as no notice was issued to him, he could not exercise his right to nominate a tenant of his choice although the appellant as well as the authority considering the application for allotment both had acquired knowledge that respondent No. 1 was the transferee landlord occupying a portion of the building. The High Court held that provisions of S. 17(2) were mandatory and its non-compliance rendered the allotment order void. The High Court held that as the order of allotment dt. 4-1-78 was made without giving notice to the landlord, the allotting authority was competent to recall its order in exercise of its inherent jurisdiction. On these findings the High Court set aside the order of the Addl. District Judge and directed the allotting authority to reconsider the applications for allotment after giving notice to the landlord respondent No. 1.