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The Roman Catholic Diocese Of Agra Ltd. v. The Rent Control And Eviction Officer, Agra And Others

Allahabad High Court

Jul 29, 1991

Judgment

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Factual and Procedural Background

The landlord-petitioner is the Roman Catholic Diocese of Agra, Limited (a private limited company), represented by Father K.C. Thomes. The petition challenges the consolidated order dated 4 June 1990 passed by the Additional District Magistrate (Civil Supply), Agra, exercising powers of Rent Control and Eviction Officer. The impugned order declared vacancy of the disputed house "Aire Cottage" (Municipal No. 32, M.G. Marg, Agra), rejected the landlord's release application and allotted the premises to respondent No. 3 (Taj Press Club / Sri Rajiv Saxena).

Relevant chronology and procedural steps as recorded in the opinion:

The property was earlier requisitioned and allotted under the United Province (Temporary) Control of Rent and Eviction Act, 1947, to the Divisional Forest Officer; the office was about to shift and premises likely to fall vacant.
An inspection was ordered by the Additional District Magistrate; the Rent Control Inspector inspected the premises on 22 May 1990 and reported it as locked; the inspector's report referenced a release/allotment application and alleged contact with the "father of the Church".
The landlord filed a release application dated 23 May 1990 under Section 16(1)(b) of U.P. Act No. 13 of 1972, stating bona fide need for religious/charitable use.
Notices for appearance were recorded as served by affixation on 26 May 1990 and again on 2 June 1990; multiple allotment applications were on record, including respondent No. 3's application received on 2 June 1990.
On 4 June 1990, in the absence of the landlord and the outgoing tenant, the Additional District Magistrate declared vacancy, rejected the release application and allotted the premises to respondent No. 3; possession was reported taken on 5 June 1990.
The landlord sought a certified copy and filed a writ petition in the High Court; an interim order staying the operation of the 4 June order was obtained on 12 June 1990, but possession had already been delivered.
The present writ petition under Article 226 challenges the 4 June 1990 consolidated order.

Legal Issues Presented

Whether mandatory procedural requirements (in particular notices under Rule 8(2) of the U.P. Urban Buildings Rules, and service requirements under Rule 28 and Rule 9(3) of the Rules) were complied with before inspection, declaration of vacancy and allotment.
Whether the impugned ex parte proceedings (declaration of vacancy, rejection of the landlord's release application and simultaneous allotment) were legally valid.
Whether the Rent Control Inspector's report and the manner of service (endorsements of service by the same process server) could be relied upon.
Whether the release application under Section 16(1)(b) (and to the extent argued, under Section 2(1)(f) seeking exemption) was properly considered and whether the authority was required to consider landlord's bona fide need before allotting to a prospective allottee.
Whether the remedy under Article 226 was the appropriate remedy in this factual and procedural context.

Arguments of the Parties

Petitioner's Arguments

No notices as required under Rule 8(2) were issued before inspection; inspection report is illegal and cannot be relied upon.
Notices required under Rule 9(3) and service under Rule 28 were not complied with; the endorsements of service were manipulated.
The release application under Section 16(1)(b) expressed bona fide need for religious/charitable use; the landlord was deprived of opportunity to present evidence because proceedings were conducted ex parte.
Simultaneous rejection of the release application and allotment was improper; the authority had to consider the landlord's release application first.
Relied upon precedents (including Satya Narain Pande) concerning exemption and the appropriate consideration of such applications.

Respondent's Arguments

Respondent contended the petitioner had not come with clean hands — earlier intention to sell the property and suppression of material; petitioner therefore not entitled to relief.
Respondent argued alternative remedies were available and implied that the petitioner had not pursued them.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhagwan Sahai Saxena v. Additional District Judge	Service/notice under Rule 8(2) held to be mandatory before inspection.	The Court relied on this authority to support the conclusion that failure to issue notices under Rule 8(2) vitiated the inspection report and proceedings based upon it.
Achal Singh v. Additional District Judge, Fatehpur (also cited as Achal Singh v. III Additional District Judge, Fatehpur)	Principle that release application of landlord must be considered before allotment; simultaneous consideration is improper.	The Court cited and applied this principle to hold that rejecting the release application and making allotment on the same date was illegal and contrary to established approach.
Smt. Kanta Gupta v. Additional District Judge, Meerut	Service/notice under Rule 8(2) mandatory.	Used along with other authorities to reinforce that absence of notices under Rule 8(2) renders the inspector's report and declaration of vacancy invalid.
Dr. Om Prakash Trivedi v. VII Additional District Judge, Agra	Service under Rule 28 and proper modes of service required by the Rules.	The Court relied on this decision to emphasise the mandatory modes of service under Rule 28 and to conclude that service by affixation here was not in compliance with the rule.
Brij Raj v. District Judge, Kanpur	Service under Rule 28 and the requirements for valid service.	Invoked with other authorities to hold that the endorsements of service were manipulated and that notices were not validly served under Rule 28.
Satya Narain Pande v. State of U.P.	Authority bearing on claims for exemption under the Act (context: Section 2(1)(f) / whether premises fall outside the Act).	The Court noted the petitioner's reliance on this decision in relation to the contention that a statement of bona fide religious/charitable use may ground release; the Court held that mere statement is insufficient where the proceeding was ex parte and no opportunity to adduce evidence was provided.
Talib Hasan v. Ist Additional District Judge, Nainital	Procedural approach that release application must be considered prior to allotment applications (Full Bench direction cited).	Referenced (via the quoted passage in Achal Singh) to underpin the principle that the allottee's application comes into play only after the landlord's release application is decided.
Ganpat Roy v. Additional District Magistrate	Availability of remedy under Article 226 in context of challenge to initial order declaring vacancy.	The Court applied this authority to justify that writ under Article 226 was the appropriate remedy in the facts of this case.

Court's Reasoning and Analysis

The court's reasoning follows a sequential analysis of the facts and applicable rules, focusing on procedural regularity and the mandatory nature of certain steps:

Findings of manipulation and irregularity:
- The court observed anomalous features in record-keeping: the order-sheet containing only two dates (24 May and 4 June 1990) despite multiple proceedings, and the same officer (Sri Markandey Singh) appearing to have been involved before proper transfer of jurisdiction.
- Endorsements of service on 26 May and 2 June 1990 by the same process server (Sri Saraswat) bore identical handwriting/language, suggesting manipulation and undermining the credibility of service.
- The allottee (Taj Press Club) was not a registered body at the time of allotment, yet allotment was made without proper inquiry.
Non-compliance with mandatory notice and service provisions:
- The court emphasized that notices under Rule 8(2) of the U.P. Urban Buildings Rules must be issued before inspection and that failure to do so vitiates the inspection report.
- It found no evidence that counsel for the landlord was tendered notice or that other indicated modes of service under Rule 28 were attempted before affixation; reliance on authorities confirmed that the mode of service resorted to here was improper.
- Notices dated 24 May and 2 June could not be treated as compliance with Rule 9(3) and Rule 13; the mandatory time-gap and posting requirements after declaration of vacancy were not observed.
Consequences of defective procedure:
- Because the only material for vacancy was the Rent Control Inspector's report (which the court held to be invalid for want of Rule 8(2) notice) and a landlord intimation, the declaration of vacancy could not stand.
- Once the vacancy declaration is set aside, the rejection of the release application and the allotment to respondent No. 3 also fail, since those determinations were premised on the invalid vacancy finding and were made in breach of the prescribed sequence and notice requirements.
Release application and evidentiary opportunity:
- The court recognized that a landlord's mere statement of bona fide need is not automatically dispositive; the authority must be satisfied on relevant material and may inspect premises before reaching a conclusion.
- Because the proceedings were ex parte, the landlord had no opportunity to present evidence or clarify how the building would be used or that no alternative building was available.
Procedural impropriety in simultaneous decisions:
- The court relied on precedent to state that the release application should be considered before allotment applications; deciding both simultaneously was contrary to established approach and illegal.
Relief and directions flowing from analysis:
- The court concluded the impugned consolidated order dated 4 June 1990 was illegal and liable to be set aside.
- The matter was remanded to the Rent Control and Eviction Officer to pass fresh orders in accordance with law concerning vacancy, release application and allotment; the District Magistrate was directed to authorize some other officer (not Sri Markandey Singh) to deal with the matter.
- The District Magistrate was directed to take necessary steps to get the premises vacated by respondent No. 3 within one month of a certified copy of this order being placed before him; the entrusted officer was directed to complete proceedings as far as possible within three months.
- The court allowed the petition with costs and observed that action should be taken against erring officials.

Holding and Implications

Holding: The consolidated order dated 4 June 1990 (declaring vacancy, rejecting the release application and allotting the premises to respondent No. 3) is quashed and the petition is allowed with costs.

Direct implications for the parties and case management:

The matter is remanded to the Rent Control and Eviction Officer to pass fresh orders in accordance with law regarding vacancy, the landlord's release application and allotment applications.
The District Magistrate, Agra, is to authorize a different officer (not Sri Markandey Singh) to deal with the case.
The District Magistrate is directed to cause vacation of the premises by respondent No. 3 within one month of a certified copy of the judgment being placed before him.
The officer entrusted with the case is to complete the proceedings as far as possible within three months.
The petitioner succeeds and obtains costs; the court also records the view that action should be taken against erring officials involved in the improper conduct of the proceedings.

Broader precedent: The opinion does not purport to lay down a new legal principle; it applies established rules concerning mandatory notice and procedural sequence (as reflected in the cited authorities) to the facts, and orders a fresh, regular hearing.

Show all summary ...

S.C Varma, J.:— By this petition under Article 226 of the Constitution the landlord, the Roman Catholic Diocese of Agra, Limited, a Private Limited Company, having its registered office at Cathedral House, Wazirpura Road, Agra, through its General Attorney, Father K.C Thomes, has challenged the Consolidated order dated 4th June, 1990 passed by the A.D.M (Civil Supply) Agra, exercising the powers of Rent Control and Eviction Officer, declaring the vacancy, rejecting the release application and the order of allotment in favour of respondent No. 3.

2. The detailed facts of the case are necessary to be brought on record as there are serious allegations by the parties of manipulation and tampering of the record. The original record of the Rent Control and Eviction Officer under these circumstances, was summoned. The petitioner, a Private Limited Company, incorporated under the Indian Companies Act with Charitable and religious objects, is the owner of the disputed house, ‘Aire Cottage’, bearing Municipal number-32 M.G Marg, Agra. The building was initially requisitioned by the Government for the office/residence of various Government offices and later it was allotted under the provisions of United Province (Temporary) Control of Rent and Eviction Act, 1947, in favour of the Divisional Forest Officer, Agra. The premises were likely to fall vacant as the office of the Divisional Forest Officer was shortly to shift at their own premises.

3. An application for the allotment was made by one Sri Om Thakur, Secretary, U.P Journalist Association, Agra. On the basis of the aforesaid application the Rent Control Inspector was directed to submit inspection report by the orders of the Additional District Magistrate (Civil Supply), Agra dated 14th May, 1990.

4. From the report of the proceedings before the Rent Control and Eviction Officer, Agra, it is evident that no notice, as contemplated under Rule 8(2) of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the rules), was issued either to the landlord or to the out going tenant. However, the Rent Control Inspector made an inspection of the premises on 22nd May, 1990 and it was noted that the premises was found locked. On further inquiry from an occupant of the back portion of the building, the Inspector was told that the owner of the building is the father of the Church, who resides at Wazirpura premises. The father of the Church was also alleged to be contacted, who had informed that the pro-property belong to Catholic Church and he was the Manager. The property was formerly under the tenancy of the Forest Office, who have not vacated the same. The Rent Control Inspector also mentioned that the release application is also annexed and the disputed house is required for the personal use of the landlord, a copy of this report is on record as Annexure 4 to the writ petition. An application for release dated 23rd May, 1990 under Section 16(1)(b) of U.P Act No. 13 of 1972 (hereinafter referred to as the Act) was filed by the petitioner, which is Annexure 5 to the writ petition. In this release application the landlord has expressed the bona fide requirement of the building for the use of religious and charitable purposes by the Church.

5. The Rent Control and Eviction Officer on 24th May, 1990 issued notices for appearance to the petitioner on 4th June, 1990 before the Additional Sub-Divisional Officer. This notice was served at Wazirpura Road, Agra, address by the process server and an endorsement dated 26th May, 1990 was made that the notice was tried to be served at Wazirpura Road, Agra address where Sri K.C Thomas, was not available on the spot, the notice was affixed on the spot and no witnesses were available. The notice on the outgoing tenant was also similarly served by affixation.

6. It appears that in the meantime several applications were received for allotment, by Sri Vijay Agarwal Secretary Agra Press Club dated 28th. May, 1990, by Sri S.K Mathur, Nehru Yuva Kendra 53-Saket Colony, Agra, dated 30th May, 1990 and the other by respondent No. 3, which was received on 2nd June, 1990. Before the respondent No. 3 filed allotment application there was an application on record filed on their behalf to the District Magistrate, Agra, in which it was indicated that the Society was initially registered by the name ‘Agra Press Club, Agra’ and this name has now been changed as ‘Taj Press Club’ as there is already an old registered society existing by that name. It was prayed that as the amended registration papers were not available, the same shall be submitted as soon as they were received, and as such, the allotment be made in the name of ‘Taj Press Club’.

7. At this stage there is an intimation on record by the Divisional Forest Officer, Agra to the petitioner informing that they have vacated the premises and possession of the same may be taken by the landlord. The petitioner landlord has also filed an application before the District Magistrate, Agra, informing that there is likelihood of some unsocial elements grabbing the property and, as such, the release application, which is pending, may be decided in their favour. Another application dated 2nd June, 1990 was filed before the District Magistrate, to save the property from the unsocial elements and for deputing some police force at the site. The Additional District Magistrate (Civil Supply) by order dated 2nd June, 1990 directed the police authorities to make necessary arrangements to prevent the unauthorised possession of the property.

8. The Additional District Magistrate (Civil Supply) by a note to the District Magistrate, obtained special permission for the transfer of the case on his file, as the disputed property was within the jurisdiction of the Additional Sub-Divisional Officer/Rent Control and Eviction Officer, Agra. On this note being put up by the respondent No. 1 asking for the transfer and authorisation of the case to the Additional District Magistrate (Civil Supply), the District Magistrate, by order dated 2nd June, 1990, authorised him to deal with the matter. On the same date i.e 2nd June, 1990 notices were again issued by the Rent Control and Eviction Officer directing that the case shall now be heard by the Additional District Magistrate (Civil Supply) on 4th June, 1990 and copy of this notice was again handed over to the same process server Sri Saraswat, who made similar endorsement dated 2nd June, 1990, that the notice was tried to be served at Wazirpura address where the father Sri K.C Thomas was not available on the spot. The notice was affixed and no witness was available.

9. On 4th June, 1990 one application was filed by Sri Vijay Agarwal, informing that he has no objection in case the premises are allotted in favour of ‘Taj Press Club’. The respondent No. 3 filed affidavit on 4th June, 1990 informing that the registration in favour of Taj Press Club has not been received and the same shall be submitted as soon as it is received.

10. With these facts and the documents on record Sri Markandey Singh, Additional District Magistrate, (Civil Supply) by the impugned order dated 4th June, 1990 in absence of the petitioner-landlord and the outgoing tenant, declared the vacancy of the disputed premises and by the same order rejected the release application and simultaneously made allotment order in favour of respondent No. 3. On the same date i.e 4th June, 1990 Form was also issued in favour of respondent No. 3 and by letter dated 5th June, 1990 the respondent No. 3 has informed the respondent No. 1 that the possession of the building was taken.

11. The petitioner-landlord on 8th June, 1990 applied for certified copy of the order and filed a writ petition before this Hon'ble Court and obtained an interim order dated 12th June, 1990 from this Hon'ble Court staying the operation of the order dated 4th June, 1990. The interim order passed by the Hon'ble High Court was served on the respondent No. 1 on 1st June, 1990. It appears that as the possession of the premises had already been taken by the allottee respondent No. 3, the order of this Hon'ble Court was not given effect to. The impugned order dated 4th June, 1990 has now been challenged in the present petition.

12. At the outset I am constrained to point out that the entire proceedings of the case appears to have been conducted by manipulation and favouritism and it is apparent from the perusal of the impugned order and the material on record that the whole proceedings stink of mala fides and an effort to circumvent the process of law.

13. Before dealing with the arguments raised by the learned counsel for the petitioner and the challenge to the validity of the impugned order on legal grounds I would like to point out the irregularities which have been committed by the authorities in conducting the entire case. The entire order-sheet is of two dates, the first is of date 24th May, 1990, which is initialled by Sri Markandey Singh Additional District Magistrate (Civil Supply)/Rent Control and Eviction Officer and it has mentioned that the record alongwith the inspection report was placed, the synopsis of the inspection note be placed on the notice board and the parties be summoned, the file be put up on 4th June, 1990 for the presence of the parties. The second order is dated 4th June, 1990 again by Sri Markandey Singh, Additional District Magistrate (Civil Supply)/Rent Control and Eviction Officer. In this order it has been indicated that by order dated 2nd June, 1990 the file has been put up before the court and the case was called out. No one is present on behalf of the landlord-the allottee Sri Rajiv Saxena, President. Taj Press Club, is present has been heard, the final orders being passed the premises has been allotted in favour of Sri Rajiv Saxena and necessary allotment orders be issued.

14. It is unusual that although several proceedings had been conducted in this case on various dates, but the order-sheet contains only two dates. The other thing which indicates the unusual interest shown by Sri Markandey Singh Additional District Magistrate (Civil Supply) in conducting this case is that even the order-sheet on 24th May, 1990 has been initialled by him when the case, although in the jurisdiction of Additional Sub-Divisional Officer/Rent Control and Eviction Officer was got transferred by Sri Markandey Singh himself on the basis of his note dated 2nd June, 1990 by the orders of the District Magistrate. There appears to be no reason why this case was being dealt by Sri Markandey Singh before 2nd June, 1990 and not by the proper authority.

15. As regards the mention of the release application accompanying with the report of Rent Control Inspector, it may be due to some bona fide mistake that instead of mentioning allotment application on the basis of which inspection was directed to be made, the Rent Control Inspector has incorrectly mentioned release application.

16. The other striking feature of the case is the service of notice and the endorsement of service by the same process server. The language and writing of the endorsement of service both on 26th May, 1990 and 2nd June, 1990 made by Sri Saraswat is absolutely identical and appears to be manipulated documents and does not inspire confidence. This indicates the effort by the authorities to conduct ex parte proceedings behind the back of the landlord. It is unimaginable that the landlord who was seriously contesting the proceedings, in case of proper service of notice, would not have appeared to contest the case and would allow the case to proceed ex parte.

17. The allotment of the premises in favour of Sri Rajiv Saxena, President. Taj Press Club, which was not even a registered body on the date when the allotment order was passed, shows that the Additional District Magistrate (Civil Supply) without making any proper inquiry has shown undue favour in allotting the premises.

18. The consolidated order of declaration of vacancy, rejection of the release application and the allotment of premises on the same date by one stroke of pen, is yet another instance which strenthens my observations made above. This is further established by issuance of Form B on 4th June, 1990 and the delivery of possession on 5th June, 1990 in favour of the allottee to give full compliance to the favoured action.

19. Learned counsel for the petitioner contended that it is necessary before inspection of the premises that notices under Rule 8(2) of the Rules be issued to the landlord and the inspection of the building be made as far as possible in the presence of the landlord and the outgoing tenant. It has been stated that since no notice was issued the inspection report is wholly illegal and cannot be relied on for any purposes whatsoever. I find force in this submission of the learned counsel for the petitioner. There is nothing on the record to indicate that any notices under Rule 8(2) were issued before the inspection by the Rent Control Inspector, was made. The report of the Rent Control Inspector and the entire proceedings for declaration of vacancy thus vitiate. Service of notice under Rule 8(2) has been held to be mandatory in various decisions of this Hon'ble Court, refer Bhagwan Sahai Saxena v. Additional District Judge,1 Achal Singh v. Additional District Judge, Fatehpur,2 and Smt. Kanta Gupta v. Additional District Judge, Meerut.3 There is dispute raised by the learned counsel for the petitioner to the statement made in the report of the Rent Control Inspector wherein it has been stated that the Rent Control Inspector also contacted the father of the Church. This has been empahtically denied by the Father of the Church in as much as the Inspector ever met him.

20. The second argument of the learned counsel for the petitioner that no notice, as required under Rule 9(3) was issued and as required to be served under Rule 28, has also not been complied. The two notices dated 24th June, 1990 and 2nd June, 1990 cannot be treated to be in compliance of Rule 9(3) of the rules. Apart from the fact that the declaration of vacancy and the order of allotment have been passed on the same date in utter disregard to Rule 9(3) and Rule 13, the service of notice as required under Rule 28 is also not in accordance with the law.

21. There is evidence on record that the release application under Section 16(1)(b) of the Act dated 23rd May, 1990 was filed by the landlord through his counsel. It is clear that the endorsement of service is manipulated and the notices were not served under Rule 28 of the rules, which is quoted below:

“28. Service of notice Section 34(8).—A notice issued by the District Magistrate the Prescribed Authority or the Appellate Revising Authority under the provisions of the Act shall be served on the person concerned—

(a) by giving or tendering it to such person, or his counsel; or

(b) by giving or tendering it to any adult member of his family; or

(c) if no such person is found, by leaving it at his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule; or

(d) if none of the means aforesaid is available, by affixing it on some conspicuous part of his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6.

(2) If a party file a duly stamped and addressed envelope for service of any notice, then it shall be served by registered post.

(3) In the case of an appeal or revision unless the appellant has taken action under sub-rule (2) the Appellate or Revising Authority shall send the notices to the District Magistrate or the Prescribed Authority, as the case may be, for having service effected.”

22. Under Rule 28 the notices have to be served on the person concerned by tendering it to person concerned or his counsel or if no such person is found, by leaving it at his last known place, or if none of the means aforesaid is available by affixing it on some conspicuous part of his last known place of abode. The last method of affixation of notice is to be resorted only after the other methods, indicated above, have been complied with but failed in affecting service. There is nothing to indicate that any effort was made to serve the counsel of the petitioner. It is established that the notices were not served in accordance with Rule 28. Refer. Dr. Om Prakash Trivedi v. VII Additional District Judge, Agra,4 and Brij Raj v. District Judge, Kanpur.5

23. Thus the ex parte proceedings are not in accordance with the law and the impugned order is liable to be set aside on this ground alone. For the purposes of considering the vacancy, the only material on record is the report of Rent Control Inspector and the intimation by the landlord dated 2nd June, 1990. For the reasons stated above, the report of the Rent Control Inspector cannot be considered and thus the order declaring vacancy is not in accordance with law. After the order declaring the vacancy has been set aside the other two parts of the order dismissing the release application and the allotment of the premises are also bound to be set aside. In any view of the matter, the order rejecting the release application and the order allotting the premises in favour of respondent No. 3, if tested on the anvil of law, cannot be sustained and are liable to be set aside.

24. The arguments of the learned counsel for the petitioner that the release application under Section 16(1)(b) of the Act was also an application under the provisions of Section 2(1)(f) of the Act seeking exemption of the applicability of the provisions of the Act, requires consideration. Reliance was also placed on the decision Satya Narain Pande v. State of U.P.6 The landlord petitioner has in the release application stated that they bona fidely required the building for the use of religious and charitable purposes of the Church. This aspect of the matter, although mentioned in the impugned order, has been rejected on the ground that there is no material to indicate as to how and in what way they will use it for religious and charitable purpose. The other reason given is that the landlord petitioner has not indicated that they have no other building at their disposal for the said purpose. In my opinion, since the proceedings were conducted ex parte the landlord had no opportunity to either elucidate the aforesaid requirements or to bring on record the material to establish the need for this purpose. The argument of the learned counsel for the petitioner that by mere stating that the building is to be used for religious and charitable purposes, is sufficient for the release of the premises, is not correct. The authority empowered to deal with the building to which the Act applies, or not, has to satisfy himself before he proceeds to deal with any premises. The authority must consider all such material which is necessary to establish this fact and may also inspect the premises before recording any finding in this regard.

25. The simultaneous order of rejection of the release application and the allotment in favour of respondent No. 3 is also not in accordance with law. Refer Achal Singh v. III Additional District Judge, Fatehpur,7 which is quoted below:

“The issue of considering vacancy is primarily a matter between the landlord and the District Magistrate, when a release application of the landlord is pending consideration. A prospective allottee seeking an allotment order comes to the picture only after the release application of the landlord is decided. The release application ought not to be considered simultaneously with an application of a prospective allottee seeking allotment. The approach has been prescribed by the Full Bench decision of this Court in re Talib Hasan v. Ist Additional District Judge, Nainital.8 The Prescribed Authority, thus proceeded illegally in deciding the release application of the landlord simultaneously with allotment application of the petitioner, a prospective allottee.”

26. Similarly the part of the order dealing with the allotment of the premises in favour of respondent No. 3 also cannot be sustained. The entire proceedings for declaration of vacancy and for allotment of the premises due to non-compliance of Rules 8(2) and 9(3) of the rules are vitiated. The necessary notices after declaration of vacancy, as required under Rule 9(3) as also the time gap of three days of posting of vacancy notice and thereafter consideration of allotment applications have not been complied with and for this reason also the allotment proceedings are liable to be set aside. Further the allotment proceedings are not in necessary compliance of the Rules 10, 11 and 13 of the Rule.

27. Learned counsel for the respondent could not dislodge any of the aforesaid findings, which established the invalidity of the impugned order. The only contention raised by the learned counsel for the respondent was that the petitioner has not come with clean hands inasmuch as he has earlier intended to sell the property and he does not want to use the same for religious and charitable purposes. It has also been stated that the petitioner has not availed the alternative remedy and has suppressed the material facts. In my opinion, the contention has no force. The reasons for holding the order to be illegal, void and inoperative has already been indicated above. Since the initial order declaring vacancy has been challenged the remedy availed under Article 226 of the Constitution is the only remedy available to the petitioner. Re; Ganpat Roy v. Additional District Magistrate.9

28. For the reasons stated above the order declaring vacancy and the subsequent orders dismissing the release application and the order of allotment dated 4th June, 1990, is liable to be set aside. The case is remanded to the Rent Control and Eviction Officer to pass a fresh order in accordance with the law with regard to the vacancy and thereafter to consider the release application and the allotment applications in accordance with law. Considering the observations made in this order it would not be desirable that this case be conducted by Sri Markandey Singh, Additional District Magistrate (Civil Supply)/Rent Control and Eviction Officer, and, as such, the District Magistrate, Agra, would authorise some other Officer having jurisdiction to deal with this matter.

29. Since the conduct of the respondent No. 3 in the entire proceedings had not been fair and the entire proceedings are the outcome of manipulation and favouritism, the District Magistrate, Agra, is directed to take necessary steps to get the premises vacated by the respondent No. 3 within a period of one month of a certified copy of this order being placed before him. The officer, who would be entrusted to deal with this case, shall complete the entire proceedings as far as possible within a period of three months. With the aforesaid directions the petition is allowed with costs. The order dated 4th June, 1990 is quashed. Before parting with this case I would like to mention that it is a fit case in which action should be taken against the erring officials.

30. Petition Allowed.