K.C Agrawal, J.:— This writ petition is directed against a judgment of the District Judge, Pauri Garhwal dated 23rd November, 1978 dismissing a revision filed by the petitioner under section 18 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “the Act No. 13 of 1972”).
2. The petitioner no. 1 is the owner of a building known as “Shanker Niwas”, situated in Mohalla Agency at Pauri Garhwal. This is double storied building. A portion of this building had been let out to one Dimri, who vacated the same. Thereafter, respondent no. 3 filed an application for its allotment on the ground that as the aforesaid portion has been unauthorisedly occupied by the petitioner no. 1, the premises be declared vacant and thereafter be allotted to him. The inspection of the building was made on the 21st October, 1978.
3. On that date, the petitioner No. 1 met the Inspector. He admitted that the house was previously in the tenancy of Dimri but claimed that after the same was vacated, its possession was given to Ranjit Singh Rawat, petitioner No. 2. He asserted that petitioner No. 2 was residing in the house and that there was no vacancy.
4. After Accepting the report, the Rent Control and Eviction Officer declared the house to be vacant and thereafter started allotment proceedings. The premises was thereafter alloted to respondent no. 3 on the 6th November, 1978. Against the said order, the petitioner went up in revision. The revision was dismissed. Hence this writ petition.
5. The first point raised by Sri L.P Naithani, learned counsel for the petitioner was that as the premises was a part of the building the remaining portion of which was in his occupation, the petitioner No. 1 was entitled to make nomination and that the allotment order could be made only in his favour. The learned District Judge has discussed this point and found that section 17(2) was not applicable to the present case inasmuch as the dispute tenament was not a portion of a building the remaining portion of which was in occupation of the landlord. In the counter-affidavit, it is stated that there was one more tenant in occupation of one of portion of this house. As section 17(2) could apply only to a case where there is only one tenant in possession of the building the remaining portion of which was in the occupation of the landlord, the benefit of Section 17(1) would not be given to the petitioner.
6. The second submission made by the learned counsel was that under sub-section (1) of Section 17 of the Act since the allotment order had not been made within 21 days from the intimation of the vacancy, the allotment order was liable to be set saide. The submission made is not tenable. On the application, filed by respondent No. 3, an inquiry was made on 21st October, 1978. On that date, the Rent Control and Eviction Officer submitted a report stating that the portion in dispute was vacant. Under sub-section (1) of Section 17, an allotment order was required to be made within 21 days of the intimation. In my opinion, since the petitioner did not send any intimation required by Section 15(1), he was not entitled to assert that the allotment order made was invalid. That apart, since the allotment order was made within 21 days of the report of the Inspector dated 21.10.1978, the same could not be said to be invalid.
7. The third submission was about the non-compliance of sub-rule (3) of Rule 9 of the Rules. It is admitted case of the parties that the petitioner was not given any notice under rule 9. The learned District Judge, however, repelled the contention of the petitioner on the ground that since rule 9(3) applied only to a case of intimation sent by a landlord under section 15(1) the petitioner's grievance was unjustified. The view of the learned District Judge appears to be correct. Reading rule 9 in its entirety, it would be found that the same was applicable only to a case, where an intimation was sent by a landlord. In this case, I am not required to express a concluded view on the said controversy, inasmuch as on account of the non-service of a notice under sub-rule (3) of rule 9, the petitioner had not been prejudiced. The petitioner filed a revision against the allotment order and made all the submissions which could be advanced on his behalf in opposition to the application of respondent No. 3. The ground, therefore, taken by the petitioner is not a fit one for interference in the present case. The petitioner has not been prejudiced.
8. The last submission made was about rent fixed by the Rent Control and Eviction Officer in the allotment order. This fixation of rent was tentative and is subject to fixation of rent under Section 9 of the Act. As the fixation of presumptive rent is not conclusive and, since the petitioner No. 1 can file an application under section 9 of the said Act for fixation of rest, the last ground is also not worthy of acceptance.
9. Sri L.P Naithani counsel for the petitioners also contended the respondent No. 3 was living in a house and that he was not required to occupy the premises in question. This point had not been raised by the petitioners in the courts below. If respondent no. 3 occupies premises in pursuance of the allotment order and if it is found that he was in possession of two buildings, it will be open to the petitioner to take proceedings against respondent No. 3 for his ejectment from the premises in dispute.
10. In the result, the writ petition fails and is dismissed. There shall be no order as to costs.