IQBAL BAHADUR VIDYARTHI Vs. DISTRICT JUDGE

JUDGEMENT

(1.) THIS petition is directed against the allotment order passed under Section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (to be hereinafter referred to as the Act) and against the appellate order passed by the Additional District Judge passed under Section 22 of the Act. One Smt. Parbati Verma gave an application for allotment of an accommodation consisting of a room and a verandah in house No. 2 on the allegation that it had been vacated by the sitting tenant V.S. Pande. Subsequently she changed the number of the house and applied for allotment of the room in house No. 3. On this application, the Rent Control Inspector was directed by the Deputy Collector (Rent Control) to make an enquiry. The report was to be put up for orders on January 18, 1975. It appears that on report being submitted on January 7, the officer passed an order for the issue of notice to the landlord, the present Petitioner, and the applicant. The date fixed for appearance was 22 -1 -1975. The notice to the landlord appears to have been sent not under registered cover but under certificate of posting. That notice was not deemed sufficient and hence service was directed to be effected through the process server. The process server filed his report stating that the Petitioner had read the notice and the report but had refused to accept the notice and thereafter it was affixed at the door of the house. On 5th March 1975 the officer fixed Match 24, 1975 as the date for orders. He however passed the order on March 15, 1975 allotting the accommodation to the applicant Smt. Parbati Verma. The Petitioner landlord filed an appeal against this order but his appeal was dismissed.

(2.) THE case of the Petitioner is that there was no vacancy as the accommodation in dispute was always in his occupation and the allegation that it was in the tenancy of one Vidya Shanker Pandey was false. The other contention of the Petitioner is that no notice intimating the vacancy and the proceedings for allotment was given to him as required by Sub -rule (3) of Rule 9 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (to be hereinafter referred to as the Rules) the alleged notice, a copy of which has been filed, was about regularisation of occupation, and even this notice, according to the Petitioner, was never served. He has challenged the correctness of the report of the process server. The other ground of attack is that the order could not be passed by the officer before the date fixed in the case. The Additional District Judge does not seem to have considered all the points raised by the Petitioner. No doubt, he has stated in the judgment that no other point was raised before him but an affidavit has been filed by the Petitioner stating that the points had in fact been raised and argued but he has failed to consider the points raised in the case. Although the first Additional District Judge was made a party in the case, he has filed no counter -affidavit in the case. The allegations in the counter -affidavit are also not specific in denying the statement of the Petitioner. The counter -affidavit has been filed by a person who does not understand English. The arguments, it is conceded at the Bar, were in English. Prima facie, therefore, it is not possible to say that the points were not raised. Even if they were not pressed, there is no bar to their not being entertained in this writ petition as they go to the root of the matter particularly when the judgment of the appellate court is liable to be quashed (sic) on the grounds that were considered by the appellate court. Learned Counsel for the Respondent contended that if points were raised and not considered the proper remedy for the Petitioner would be to apply for review and not to challenge the order through a writ petition. There is no specific provision for review and even if that were so, as the order of the Additional District Judge as well as of the Rent Control Officer are liable to be quashed even on the point considered by the Additional District Judge it will not be just and proper to throw out the petition on this ground.

(3.) EVEN if it be deemed to have been served, a copy of the notice which has been filed as annexure 3 to the writ petition shows that the notice was not about the vacancy of any accommodation or its allotment but about regularisation of the accommodation. Although there is no specific provision in the Act about the proceedings for regularisation of occupation, there is Section 14 in the Act which speaks about regularisation of occupations by existing tenants if their tenancy was in contravention of Section 7(2) of the Act No. III of 1947 end the tenant was occupying the building with the consent of the landlord immediately before the commencement of the present Act. The landlord can, therefore at the most be deemed to have knowledge that proceedings about regularisation of the tenancy of his tenant was being taken. Smt. Parbati Verma was admittedly the tenant of house No. 3. There was thus nothing to require the landlord to object to. What is required by law is a notice intimating that the accommodation is vacant and is to be allotted for purposes of tenancy. Rule 9(3) provides: