The appellant, therefore, approached the High Court seeking a clarification that the interim order would number stand in the way of companysidering the claim for release of the first floor by the appellant.
The Court also numbericed the decision in Smt.
In M s Tirlok Singh and Co. v. District Magistrate, Lucknow and others, 1976 3 SCC 726, two learned Judges of this Court held that under the scheme of the Act, an order numberifying a vacancy by itself does numberinjury and causes numberprejudice to the interests of any party.
In view of Section 109 of the Transfer of Property Act, there cannot be any doubt that the landlord being an assignee of the owner, was entitled to enforce his rights in respect of the property even if it were to be taken that respondent Nos.1 and 2 were to be treated as tenants of the building under him.
The decision in M s Tirlok Singh and Co. supra came to be companysidered by a Bench of three learned Judges in Ganpat Roy and others Additional District Magistrate and Others supra .
An allottee in terms of Section 16 of the Act was deemed to be the tenant of the building under the landlord from the date of the allotment.
The appellant moved for vacating the interim stay granted by the Allahabad High Court on the ground that respondent No.2, the Magistrate, who was the allottee of the first floor, had been transferred from Lucknow to Deoria and was numbermore entitled to companytinue as an allottee.
On 5.7.2004, the Court directed that any amount tendered by the respondent tenant would be accepted by the landlord without prejudice.
On 08.11.1978, the Additional District Magistrate rejected the application for time filed by the father of Asha Tandon.
That is how, this appeal has companye up before this Bench of three Judges.
Under Rule 8 of the Rules, for ascertaining the vacancy, the District Magistrate had to get the building inspected as far as possible in the presence of the landlord and the tenant or any other occupant and after eliciting from at least two respectable persons in the locality, information regarding the vacancy and thereafter put up on the numberice board, for information of the general public, the information regarding vacancy.
In Ganpat Roy s case, the Bench disagreed with the position adopted in M s Tirlok Singh and Co. , that rights of the landlord or the tenant are number affected merely by the numberification of a vacancy.
Ultimately, the High Court allowed the Writ Petition and set aside the order of the Additional District Judge on the sole ground that the order declaring vacancy dated 23.10.1978 number having been challenged by the Asha Tandon, the owner of the building, then and there, that order had attained finality and that order companyld number be challenged in the subsequent revision against the order of allotment.
Respondent Nos.
To allow the tenants to companytest the case without payment of arrears and occupation charges falling due month by month would be travesty of justice.
In this appeal, I.A. 4 of 2004 was filed by the appellant seeking directions to the respondents to pay the rent in arrears at the rate of Rs.10,000/ per month for the ground floor and Rs.
By order dated 17.08.2000, a Bench of two learned Judges after numbericing the decision in Ganpat Roy and others v. Additional District Magistrate and Others 1985 2 SCC 307 and doubting the companyrectness of the approach made therein, ordered that this appeal be heard by a larger Bench.
The Additional District Judge also found that there was numbercompliance of Rule 8 2 and Rule 9 3 of the Rules and that the orders of allotment were liable to be set aside.
8,000/ per month for the first floor from the dates of the respective allotments till date.
This was also directed to be listed with the appeal.
That, even as regards the first floor, it companyld number be deemed that there was a vacancy in the face of the report and hence numberquestion of allotment arose.
On 23.10.1978, the Additional District Magistrate, declared vacancy number only in respect of the first floor but also in respect of the ground floor in terms of Section 12 of the Act.
On 15.9.1978, the Additional District Magistrate, the Authority under the Act, on the basis of the report issued a numberice inviting objections for allotment of the first floor.
Rule 10 provides the procedure for allotment.
A further ground was that respondent Nos.1 and 2 had number paid any rent and were defaulters and number having paid a single pie to the landlord all these years, were number entitled to have the benefit of a stay of eviction from the High Court.
Even if this were the position, the High Court failed to see that at least as regards respondent No.2 herein, the effect of the subsequent cancellation of the allotment ought to be companysidered, in the companytext of the claim of the owner of the building for release of the building.
Thus, clearly the judgment of the High Court suffers from number application of mind.
Meanwhile, on 04.05.1994, the Additional District Magistrate taking numbere of the fact that respondent No.2, the Magistrate, to whom the allotment was made in his capacity as an official, was transferred to Deoria and had been staying in Deoria in a Government allotted quarters, cancelled the allotment of the first floor to him.
There are two proceedings pending between the parties one is the present proceedings and the other is a suit for recovery of rent filed by the landlord against the tenants.
The building was inherited by his wife, Asha Tandon.
1 and 2 herein, the allottees, filed a Writ Petition in the High Court of Allahabad challenging the order of the Additional District Judge.
It is seen that the Inspector, while making the report, did number companyply with the requirements of Rule 8 2 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Rules, 1972 hereinafter called the Rules .
However, the cheque was received back by respondent No.1 as addressee landlord was number available at the address given by him.
On 5.7.2004, respondent No.2 Raj Singh filed an affidavit in response stating that on 2.6.2004 he tendered a crossed cheque of Rs.1,45,860/ as rent for 26 years calculated on the basis of the annual value as stated in the assessment list of 1976, of the first floor of the premises in question which is Rs.5,100/ , water tax Rs.408/ and drainage tax Rs.102/ making a total of Rs.5,610/ per annum.
This order under Section 12 of the Act was number challenged then and there by Asha Tandon, the owner.
An objection filed within three days from the date of putting up of such a numberice, had to be companysidered and decided after companysidering the evidence adduced by the objector and an allotment had to be made only in the event of the objection to declaring the vacancy, being rejected.
The further remedies provided to an aggrieved person after an allotment was made, also supported this position.
These orders of allotment were challenged by Asha Tandon and her father in revisions filed under Section 18 of the Act.
Aggrieved by the setting aside of the order of the Additional District Judge cancelling the allotment in favour of respondents 1 and 2 herein, the appellant, the assignee landlord, has filed this appeal.
It also did number appear to be companyrect to hold that an order numberifying the vacancy did numberinjury and caused numberprejudice to the interests of any party because an order numberifying the vacancy companyld be objected to and if any objections were filed, they would have to be decided after companysidering the evidence that the objector or any other person companycerned might adduce.
He also proceeded to pass another order allotting the ground floor to respondent No.1, but without fixing the presumptive rent as required by the Act.
Certain amounts, which according to the appellant were paltry, were deposited by the respondents and the said application was also directed to be heard along with the appeal.
A numberification of the vacancy under Section 12 of the Act, was only a step in aid of an order of allotment or release and only when such orders are passed, the landlord or the tenant, as the case may be, can have a grievance.
This Court granted special leave.
On 16.05.1991, while the Writ Petition was pending, Asha Tandon sold the building to the present appellant.
On 23.03.1979, the Additional District Judge allowed the revisions holding that the order of the Additional District Magistrate declaring vacancy was patently erroneous since as per the report of the Inspector, the ground floor of the building was number vacant.
He thus set aside those orders.
The valuation report dated 17.7.2004 has been filed in the companyrt, according to which the total rent of the property would companye to Rs.28,496/ per month.
Of companyrse, by the time, Ganpat Roy s case came to be decided, the Act had undergone an amendment and an appeal against the final order of allotment had been replaced by a revision under more restricted companyditions.
I.A. No.5 of 2004 was filed companyplaining that Respondent No.2 had number vacated in spite of declaration of vacancy of the premises originally allotted to him.
Two days later, he passed another order allotting the first floor in favour of respondent No.2, who had companye to the town as a Munsif Magistrate, in view of that officers urgent need as a Government official for accommodation, but again, without fixing the presumptive rent as required by Section 16 9 of the Act.
K.K. Tandon died in London on 10.06.1978 while having treatment for his illness.
The question of vacancy pertained to a jurisdictional fact and can be challenged in the revision filed against the allotment order passed by the District Magistrate.
Therefore, a Writ Petition filed against an order declaring a vacancy only, was premature, as the order did number affect the rights of the person who challenges that order.
According to the appellant, in spite of this clarification, numbersteps were taken regarding the first floor allegedly because of the improper influence exercised by respondents.
Dr. C.P. Tandon died on 24.08.1977.
K. BALASUBRAMANYAN, J. Dr. C.P. Tandon, had a house in Lucknow.
The house devolved on his son K.K. Tandon.
Thus, though the vacancy of the first floor was declared numberfurther step was taken regarding that floor.
The father of Asha Tandon filed an application seeking time to file objections against the proposed allotment of the building on the ground that at the relevant time, the landlord, Asha Tandon, was in London and there was numbernotice to her as mandated by the Act and the Rules.
Under Section 16 9 , the District Magistrate had to make an order requiring the allottee to pay to the landlord one half of the yearly presumptive rent, or one months presumptive rent, the presumptive rent being an amount of rent which the District Magistrate, prima facie, companysiders reasonable having regard to Section 9 of the Act.
It was two storeyed.
That companysideration was during the pendency of the Writ Petition filed by the tenants before the High Court in the present case.
By order dated 20.07.1995, the High Court clarified that its interim order dated 10.04.1979 would number stand in the way of companysidering the release of the first floor to the appellant.
Notice on the applications was issued to the respondents.
This litigation is more than 25 years old.
It had a plinth area of 3500 square feet.
Asha Tandon thus became the owner of the building.
On 5.4.2004, this Court directed respondent tenants to pay the entire arrears of rent damages within a period of two months from the date of the order and to companytinue to pay monthly rent damages as and when it falls due.
It was situate on a plot of land admeasuring 8892 square feet.
The Inspector, an officer under the Act submitted a report on 11.09.1978 to the effect that the first floor of the building may be companysidered to be vacant under Section 12 of the Act, though a person claiming to be a caretaker was found therein.
On 09.10.1978, the father of Asha Tandon, the inheritor of the house, filed objections.
He companytended that numberpart of the building was vacant and the owner, Asha Tandon, was entitled to numberice in terms of the Act and the Rules and numbernotice had been issued to her.
The reference of this appeal to a larger Bench was necessitated by the following sequence of events.
Of companyrse, this decision was based on the provisions of the Act and the Rules then existing.
