1996 Supreme(All) 245

HIGH COURT OF ALLAHABAD
S.N. Aggarwal, J.
Adhyaksha Zila Bhartiya Janta Party Bareilly - Appellants
Versus
VIIth Addl D J Bareilly - Respondents
Decided on : Feb 27, 1996

The procedure for allotment of vacant premises under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the Rules framed thereunder, including the requirement of giving notice to the landlord and providing an opportunity of hearing, is mandatory and must be strictly followed.

Headnote:

VACANT POSSESSION - ALLOTMENT OF PREMISES - U. P. URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) ACT, 1972 - SECTIONS 4, 12, 16(1)(A) - U. P. URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) RULES, 1972 - RULES 8(2), 9(3), 14 - INTERPRETATION - PROCEDURE FOR ALLOTMENT OF VACANT PREMISES - NOTICE TO LANDLORD - OPPORTUNITY OF HEARING - BURDEN OF PROOF - ILLEGAL POSSESSION - HOUSE GRABBING.

Fact of the Case:

The petitioner challenged the order of the District Judge, Bareilly, setting aside the allotment order passed in their favor by the Rent Control and Eviction Officer. The landlord, respondent No. 2, had purchased the disputed property and claimed that it was never let out to any tenant. The Rent Control and Eviction Officer declared the accommodation as vacant based on the report of the Rent Control Inspector and the affidavits of two witnesses. The landlord filed an objection and an application to recall the order of vacancy, but the Rent Control and Eviction Officer did not pass any order on it. He then allotted the accommodation to the petitioners without giving the landlord an opportunity to lead evidence.

Finding of the Court:

The court held that the Rent Control and Eviction Officer erred in declaring the accommodation as vacant without giving the landlord an opportunity to be heard. The court also held that the allotment order was passed illegally as the landlord was not served with the notice of the date fixed for considering the allotment applications. The court further held that the petitioners had taken possession of the accommodation illegally in violation of Rule 14 of the Rules framed under the Act.

Issues: 1. Whether the Rent Control and Eviction Officer erred in declaring the accommodation as vacant without giving the landlord an opportunity to be heard? 2. Whether the allotment order was passed illegally as the landlord was not served with the notice of the date fixed for considering the allotment applications? 3. Whether the petitioners had taken possession of the accommodation illegally in violation of Rule 14 of the Rules framed under the Act?

Ratio Decidendi: 1. The court held that the Rent Control and Eviction Officer erred in declaring the accommodation as vacant without giving the landlord an opportunity to be heard. The court relied on the Supreme Court decision in Yogendra Tiwari v. District Judge, Gorakhpur and others, wherein it was held that the question of vacancy 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, and the District Magistrate must follow the procedure prescribed under the Act and the Rules framed thereunder. The court also held that the principle of audi alteram partem would clearly be applicable in such cases. 2. The court held that the allotment order was passed illegally as the landlord was not served with the notice of the date fixed for considering the allotment applications. The court relied on Rule 9(3) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, which requires service of notice and intimation of the date fixed for considering the allotment of the premises which may have fallen vacant and likely to fall vacant. The court held that the object and purpose of notice to the landlord regarding the date fixed for allotment is to enable him to file his objection, if any, to the allotment, proceedings or to make application for release of the premises as contemplated by Section 16(1)(a) of the Act or to nominated the tenant of his choice and if he is in occupation of the portion of the building an allotment made without giving notice as required under Rule 9(3) of the Act would be rendered illegal. 3. The court held that the petitioners had taken possession of the accommodation illegally in violation of Rule 14 of the Rules framed under the Act. The court held that an allottee is entitled to take possession of the accommodation allotted to him only in accordance with Rule 14 of the Rules, which provides that an order in Form C shall be served upon the persons or person found in unauthorized occupation of the building directing him to vacate the same and deliver vacant possession thereof to the person named in the order within such period as may be specified in the order which shall in no case be less than a week from the date of service of order upon him and on his failure to comply with the order within the time allowed. The court held that no notice in Form C was served upon the landlord and the possession was taken within two days from the date of allotment order, which was illegal.

Final Decision: The court dismissed the writ petition and directed the petitioners to handover the possession of the accommodation to the landlord within two days. The court also directed the District Magistrate, Bareilly, to get vacated the accommodation from the petitioners and handover its possession to the landlord within two days from the date the order is produced before him.