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Vinod Kumar Dixit v. A.D.J. V111 Kanpur & Others - WRIT - A No. 5872 of 2001 [2005] RD-AH 1425 (26 May 2005)


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Civil Misc. Writ Petition No. 5872 of 2001

Vinod Kumar Dixit       Vs.   Addl. District Judge and others


Hon'ble Vikram Nath J.

This writ petition has been filed for quashing the judgment and orders dated 4.1.1994, 29.1.1994 and 06.11.2000 passed by Rent Control And Eviction Officer Kanpur Nagar (Respondent no.2) and Additional District Judge,Kanpur Nagar whereby the premises in dispute was declared vacant and subsequently allotted in favour of Udai Pratap Singh(respondent no.3) and the revision against the same filed by the petitioner was dismissed.

The dispute relates to premises no.125/73 K Block Govind Nagar Kanpur Nagar of which petitioner is the owner and landlord. One Sri Umesh Rai was tenant of the ground floor portion of the premises in dispute under an order of allotment Sri Umesh Rai subsequently shifted to Delhi and as such an application was moved by Udai Pratap Singh(respondent no.3) for allotment under section 16 of Rent Control Eviction Officer on the ground that as Umesh Rai had already shifted to Delhi and was not residing in the premises in dispute therefore, the premises was deemed to be vacated. It would be relevant to mention here that even the petitioner had shifted to Delhi in connection with his service.

On the application filed by respondent no.3 proceedings were initiated and a report was called for from the Rent Control Inspector who without notice to the landlord submitted a report regarding vacancy. The Rent Control and Eviction Officer vide order dated 4.1.1994 declared vacancy based upon the report of the Rent Control Inspector and affidavit filed by Umesh Rai dated 22.12.1993. Later on the Rent Control and Eviction Officer without ensuring service of notice on the petitioner landlord vide order dated 29.1.1994 allotted the premises in dispute (ground floor portion occupied by Umesh Rai) in favour of Udai Pratap Singh respondent no.3.

The petitioner was residing in Delhi and had no knowledge of the proceedings however as soon he came to know, he filed a revision before the District Judge Kanpur Nagar under section 18 of the Act along with an application for condonation of delay supported by an affidavit. The revisional Court vide order dated 23.11.1998 came to the conclusion that the petitioner had not been duly served with any notice, that he had no knowledge about the proceedings relating to the declaration of vacancy and allotment, on coming to know of the impugned orders without any delay filed the revision after obtaining certified copy, allowed the application for condonation of delay. The revisional Court subsequently vide order dated 9.11.2000 has dismissed the revision holding that the petitioner had knowledge of the proceedings relating to declaration of vacancy, that he was duly served with the notice and further that there was no illegality or irregularity in the order of allotment. Aggrieved by the same the present writ petition has been filed by the landlord.

Counter affidavit and rejoinder affidavit have been exchanged and with the consent of the parties the petition is to be finally disposed off.

I have heard Sri Ajit Kumar learned counsel for the petitioner and Sri R.S.Misra learned counsel for the respondents.

Three points have been raised by the petitioner: firstly there was non compliance of Rule 8 and 9 of the Rules framed under the Act which are mandatory and therefore, the impugned orders are vitiated in law. The next contention is that the service by publication upon the landlord is not permissible under the Rent Control proceedings and it was necessary to affect personal service upon the landlord and lastly it has been contended that the revisional Court while allowing the application for condonation of delay and recorded specific findings that there was no sufficient service of notice on the landlord and that the landlord on coming to know of the same had immediately filed the revision without any delay and therefore, it is contended that subsequently while deciding the revision on merits, the revisional Court committed error of law in recording a finding that there was sufficient notice to the landlord and he has knowledge of the proceedings. It is contended that such a finding was barred by principles of res-judicata.

Learned counsel for the respondent has urged that the landlord admittedly was residing at Delhi and had full knowledge of the proceedings for declaration of vacancy and allotment and have in fact given his silent consent to the allotment who had subsequently turned dishonest and wanted to extract money from the allottee and had there malafide and with motive filed the revision and this petition is also to serve the same purpose.

Rules 8 and 9 of the Rules framed under the Act runs as follows:

8.Ascertainment of vacancy (Sections 12,16 and 34(8)}-{(1) The District Magistrate, shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected.

(2) The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the mean time any objection is received, not before the disposal of such objection.

(3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce.}

9.Notice of vacancy {Section 15}-(1) Every notice to the District Magistrate under sub-section (1) or sub-section (2) of section 15 shall contain the following particulars;

(a) The number, if any, allotted by the local authority to the building   and the street, Ward or division in which the building is situated,

(b)The name and address of the landlord,

( c) Whether the building is residential or non-residential,

(d)Details of accommodation available together with the appurtenant land, garden, garages, out-houses, etc,

(e) In case the building falling vacant is part of a bigger building, the names of occupants of the other parts.

(f) The actual or expected date of vacancy,

(g) The name of the person vacating the building,

(h) The year of construction of the building

(i)  Whether the building was ever let out.

(j)  Other information, if any.

(2) The notice shall be signed and dated by the information and shall be presented in person at any time during office hours on any working day or shall be sent by registered post acknowledgment due.

(3)Immediately after the receipt of intimation of vacancy of any building in the office of the District Magistrate, the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by pasting a copy of the list of the vacant buildings on the notice board of that office, specifying therein the date on which the question of allotment will be considered. He shall also issue a notice to the landlord intimating him the date so fixed. On the date so fixed the District Magistrate shall consider the cases of all applicants registered in the register mentioned in Rule 10 and shall pass an order under Section 16 in accordance with Rules 10 and 11."

It is provided under the Rules referred to above, that any inspection made by Rent Control Inspector should be done after due notice to the landlord. A perusal of the order of declaration of vacancy, the order of allotment and even the revisional order do not deal with this aspect of the matter. Even in the counter affidavit filed by Udai Pratap Singh no evidence has been filed to prove that Rules 8 and 9 have been complied with. But no supporting documents have been filed. It is stated in the order of allotment as well as revisional order that a publication was made in a local News Paper " Satya Samvad" published from Kanpur dated 25.12.1993 regarding allotment of the premises in dispute. This substituted service in a news paper which is not having any circulation nor is a reputed daily news paper cannot be deemed to be sufficient service and in any case petitioner was admittedly residing in Delhi as is also apparent from the report of the process server that the landlord was not available and was out of Station. Therefore, it was necessary either to serve by registered post at the new address or to have at least published the notice in a newspaper published from Delhi. In the circumstances it cannot be held that there was sufficient compliance of rule 8 and 9 of the Rules framed under the Act. Learned counsel for the petitioner has cited several authorities on this proposition. However, as the Rule itself is clear that the landlord needs to be served with the notice, no reference is being made to the authorities and it is also well settled that Rule 8 and 9 are mandatory in nature and non compliance of the same would be fatal for declaring the vacancy or making an order of allotment.

Learned counsel for the allottee has strongly contended that the petitioner through out had knowledge and even his attorney Ravindra Kumar had knowledge of proceedings. Once there was knowledge to the landlord even if no notice was personally served upon the landlord the compliance of Rule 8 and 9 would lose their importance. Learned counsel has drawn the attention of the Court to the various findings recorded by the revisional Court with regard to service and knowledge of the proceedings. I am not convinced with the findings recorded and all  the more when the revisional Court has self in its order dated 23.11.1998 had held that there was no service on the petitioner and he had no knowledge of the proceedings. The revisional Court could not have ignored the earlier order dated 23.11.1998 passed on the delay condonation application.

In the facts and circumstances of the case, the order of revisional Court deserves to be set aside and the matter requires reconsideration in the light of the observations made above.

In the result, the writ petition succeeds and is allowed and the order of revisional Court dated 6.11.2000 is set aside. The matter is remanded to the revisional Court for afresh decision in the light of the observations made above. The said decision may be taken at an early date preferably within a period of three months from the date of production of a certified copy of the order.




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