K.C Agarwal, J.:— Dilip Chopra, the petitioner, was the owner and landlord of premises No. 15-A, Albert Road, Allahabad. A portion of this house was in the tenancy of A.R Manager. He vacated it and, thereafter, the allotment proceedings were taken. The premises was allotted to one Arun Kakkar on July 29, 1977. In 1978 an application was filed by one Mohd. Salim for allotment of the aforesaid portion on the ground that since A.K Kakkar did not occupy the allotted portion and that it was vacated, the same be allotted to him. The Rent Control Inspector made enquiry and, thereafter submitted a report on 18-6-1978. As this stage, the petitioner appeared before the Rent Control and Eviction Officer on 29th May, 1978. He applied for time for objection. But on the next date, he took an adjournment, Consequently, 15-6-78 was fixed for filing objection. On that date also no objection was filed but an adjournment was sought. Thereafter, the case was fixed for 17th June, 1978. In the meantime it appears that the petitioner-landlord, moved an application under section 21 of U.P Act No. 13 of 1972 against A.K Kakkar and obtained a release order on the basis of a compromise alleged to have been entered into on 19th June, 1978. After having obtained the compromise in the proceedings under section 21(1)(a), the petitioner filed an affidavit before the Rent Control and Eviction Officer stating that the premises since had been released in his favour under section 21(1)(a), the Rent Control and Eviction Officer had no jurisdiction to take any proceedings for its allotment under section 16 of U.P Act No. 13 of 1972. A counter affidavit had been filed on behalf of Mukhtar Abbas, respondent no. 3, who by this time had also filed an application for allotment. He contended that although an allotment order had been made in favour of Arun Kakkar in July 1977 but the said tenant did not occupy the premises and that the same remained vacant throughout. He asserted that the compromise was collusive and that the Rent Control and Eviction Officer had jurisdiction and power to allot the premises to him under section 16 of the Act. The point raised on behalf of respondent no. 3 gave rise to a controversy whether Arun Kumar occupied the disputed premises in pursuance of the allotment order dated 29-7-77. Both the parties adduced evidence in support of their respective cases. The Rent Control and Eviction Officer held that Arun Kumar did not occupy the premises and that the same remained vacant throughout. The view taken was that the compromise order obtained under section 21(1)(a) was ineffective. As the compromise could be entered into only between the landlord and the tenant and since Arun Kumar was not a tenant, there could be no compromise under section 21(1)(a), on this point, the Rent Control and Eviction Officer dismissed the objection of the petitioner and allotted the premises to respondent no. 3.
2. Being aggrieved, the petitioner went up in revision. The III Additional District Judge, Allahabad, to whom the revision had been transferred, agreed with the finding of the Rent Control and Eviction Officer and dismissed the same on April 25, 1979. Dissatisfied by that order, the present writ petition has been filed.
3. Sri R.B Mehrotra, counsel appearing for the petitioner raised three points before me. The first was that since the vacancy was notified by the Rent Control and Eviction Officer on the basis of the report of the Inspector without giving a notice to the petitioner, the declaration of vacancy was invalid and that could not entitled the Rent Control and Eviction Officer to pass an order on its basis. It is not necessary for me to investigate the correctness of this argument inasmuch as, admittedly the petitioner filed an objection before the Rent Control and Eviction Officer in the allotment proceedings.
4. He was heard and, thereafter, the premises was allotted to respondent no. 3. The petitioner did move his objection even if the notice had not been issued to him before the house was declared vacant. Consequently, the petitioner's grievance did not entitle him to get the release in the present proceedings on this ground.
5. The second submission was that the Rent Control and Eviction Officer had limited jurisdiction conferred by the U.P Act No. 13 of 1972 and since he had no right to go into the validity of the compromise entered into in the proceedings under section 21(1)(a) of the Act, he could not ignore the compromise and order that the premises had not been lawfully released in favour of the petitioner. In this connection, reference may be made to the proviso of sub-section (3) of section 21 of U.P Act No. 13 of 1972. The Proviso laid down:
“provided that where the tenant being a servant of Government or any Local Authority or any Public Sector Corporation does not contest the application, then a reasonable opportunity of being heard shall be given to the District Magistrate, who shall have the right to oppose the application.”
6. Arun Kumar Kakkar was admittedly, the Excise Inspector posted at Allahabad in the office of Excise Commissioner, Allahabad. He was thus a Government servant. By entering into a compromise he expressed his desire not to contest the application filed by the petitioner under section 21(1)(a) of U.P Act No. 13 of 1972. That being so, it was incumbent upon the Prescribed Authority to have issued notice to the District Magistrate and given him reasonable opportunity of being heard before the compromise was accepted. This was not done. Accordingly, the compromise entered into between the petitioner landlord and Arun Kumar could not be acted upon and was rightly ignored by the Rent Control and Eviction Officer.
7. That apart, the two authorities below found that in fact the petitioner landlord did not enter into any compromise with Arun Kumar. For this the authorities held that Arun Kumar Kakkar did not occupy the premises allotted to him and that all the time the same remained vacant. If that was so, Arun Kumar did not become a tenant. Even if it be true that proceedings under section 21(1)(a) could be decided on the basis of the compromise, the fact remains that the compromise has to be entered into between the landlord and the tenant. Any compromise, therefore, to be accepted for the purpose of section 21 has got to be entered into between a landlord and the tenant. In the instant case, Arun Kumar was not the tenant of the premises. Hence, the compromise was rightly ignored.
8. The last submission made by the petitioner's counsel was about the non-applicability of sub-section (2) of section 17. Counsel urged that since several amenities provided to the disputed accommodation are common with those which are occupied by the petitioner-landlord, the Rent Control and Eviction Officer ought to have taken the consent of the petitioner before passing an allotment order and since no consent had been obtained, the report was invalid. This point had neither been raised before the Rent Control and Eviction Officer before the Additional District Judge. I am not inclined to permit the petitioner to raise this point for the first time before this Court. For deciding the said point several facts were recquired to be investigated. In the absence of those facts, it is not possible to decide it either in favour of the petitioner or against him.
9. In the result, the writ petition fails and is dismissed. In the circumstances, 1 direct the parties to bear their own costs.
U.P Act No. 13 of 1972