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Smt. Sunhari Devi v. Smt. Radha And Another - WRIT - A No. 21763 of 2004  RD-AH 9550 (15 May 2006)
Judgment Reserved on 23.3.2006
Judgment delivered on 15.5.2006
Civil Misc. Writ Petition No. 21763 of 2004
Smt Sunaihri Devi Versus Smt Radha and another.
Hon'ble S.U.Khan J
In spite of sufficient service through publication no one appeared on behalf of respondents hence only arguments of learned counsel for the petitioner were heard.
R.C & E.O / District Supply Officer (DSO) Meerut after declaring the accommodation in dispute to be vacant on 25.7.2002, allotted the same to respondent No.1 Smt Radha by order dated 8.8.2002 passed in Case No. 26 of 2002 Mukesh Versus Sunaihri Devi. Proceedings had been initiated on the allotment application of Mukesh respondent No.2. The only other applicant was respondent No.1. The accommodation in dispute was allotted on monthly rent of Rs.150/- per month. Accommodation in dispute is situate at first floor of house No. 232, Patel Ganj Meerut. Against allotment order dated 8.8.2002, petitioner filed Revision No. 66 of 2003. Additional District Judge, Court No. 14, Meerut through judgment and order dated 18.5.2004, dismissed the revision hence this writ petition.
Respondents had asserted that since 1979 Smt Bina was the tenant of the accommodation in dispute and respondent No.1 being her real sister was residing with her since start of tenancy. It was also asserted that shortly before filing of the allotment application Smt Bina had shifted to another city Jaipur, Rajasthan hence there was vacancy. R.C & E.O allotted the building in dispute to respondent No.1 on the ground that she was residing therein for more than 20 years.
By virtue of Rule 10 of the Rules framed under U.P Act No.13 of 1972, a building can not be allotted to unauthorized occupant, except when he has been inducted as tenant by the landlord after 1976 vide R.K.Parashar Versus Dinesh Kumar AIR 2000 SC 1168. However in the instant case neither there is any allegation nor any finding that allottee respondent No.1 was inducted as tenant by the landlord or he was paying any rent to the landlord. Respondent No.1 only asserted that since 1979 when her sister Smt. Bina was inducted as tenant by the landlord she was residing with her. Sister is not included in the definition of family but she is fully entitled to reside along with her tenant sister in the tenanted accommodation. However if the tenant has completely removed his possession from the tenanted accommodation then it can not be occupied by tenant's sister or brother and if it is so occupied then it will amount to subletting vide Ganesh Trivedi Versus Sunder Devi AIR 2002 SC 676. In view of this, respondent No.1 being unauthorized occupant and not being in possession with the consent of the landlord did not deserve allotment. Allotment order is liable to be set-aside on this ground alone.
There is another illegality in the allotment order. No effective notice was served upon the landlady either before inspection or before declaring vacancy or before making allotment. All these three notices are mandatory and non issuance and non service of any of these notices renders the allotment order illegal vide C.K.Nagarkar Versus VI A.D.J Gorakhpur 2004(2) ARC 349 and the authorities of the Supreme Court discussed by me in the said judgment.
No notice was sent through registered post, which was necessary. This question has also been discussed by me in the aforesaid authority of C.K.Nagarkar. Alongwith second supplementary affidavit copies of two affidavits filed before the revisional court have been annexed. In the first affidavit sworn on 16.10.2002, it was categorically stated in para 7 that in no notice purported to be issued to the petitioner, number of her residential house was mentioned and no notice was ever sent through registered post. Revisional court did not say a single word regarding the said allegation. In the report of RCI dated 20.6.2002 annexure 1 to the writ petition there is no mention that any notice before inspection was served upon the landlords. The only mention is that notice was sent to landlord under Rule 8(2). In the vacancy declaration order dated 25.7.2002 annexure 3 to the writ petition, there is no mention that before declaring vacancy any notice was issued to the landlord. The only thing mentioned is that the result of inspector report was published in the newspaper. The said publication is meant for information to agent or public in view of the authority of Supreme Court reported in Jagdish Versus District Judge 2002(1) ARC 327. However in view of the Supreme Court authority reported in Ganpat Roy Versus A.D.M 1985 (2) ARC 73. It is utmost essential that before declaring vacancy notice should be issued to the landlord which was not done.
As far as notice after declaration of vacancy and before allotment (Rule 9(3)) is concerned, it was not even issued. In the judgment of the revisional court, it is mentioned that at some point of time information was sent to the landlady but at the address of the landlady one Anil Kumar was found present who refused to accept the notice hence it was affixed on the house. It was not mentioned that Anil Kumar was family member of the landlady. In any case, in the aforesaid authority of C.K.Nagarkar I have held that notice shall be served through registered post in accordance with Rule 28 of the Rules framed under the Act.
Accordingly I am of the view that the order declaring vacancy, allotment order and revisional court's order are erroneous in law and liable to be set-aside.
Accordingly writ petition is allowed. All the impugned orders are set-aside. R.C &E.O may reconsider the question of vacancy. In case vacancy is declared then question of release, if any release application is filed shall be considered first. However in case no release is filed or it is rejected then question of allotment may be considered afresh. No order shall be passed without hearing all the parties concerned. Notice on the parties, which are not represented before R.C & E.O shall be served through registered post.
However it is clarified that as respondent No.1 is in possession since before allotment order which has been set-aside by this judgment hence by virtue of this judgment she must not be dispossessed. Landlady is at liberty to initiate proper proceedings either by filing a suit against tenant and respondent No.1 or release application under section 21 of U.P Act No. 13 of 1972 before the prescribed authority or release application under section 16 of the Act before R.C & E.O.
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