S.U. Khan, J.
1. This is landlords' writ petition directed against order of allotment dated 4.4.1985 passed by R.C & E.O. Etawah in favour of original respondent No. 3 Vishwa Narain Chaturvedi since deceased and survived by legal representatives under Section 16 of U.P Act No. 13 of 1972. Through the said order vacancy was declared and accommodation in dispute was allotted to respondent No. 3. Against the said order revision was filed which was dismissed on 20.8.1986. The said judgment is also challenged through this writ petition.
2. Building in dispute was allotted to V.N. Chaturvedi in his capacity as Manager / In charge Sunshine School. Allotment order was passed by R.C. & E.O / Additional Magistrate I Etawah in case No. 19 of 1984 Ram Babu and Ors. v. Raj Kishore Tandon and Ors. (Ram Babu was the other applicant for allotment). On 4.4.1985, the date on which allotment order was passed Form B under Rule 12 of the Rules framed under the Act containing the essentials of allotment was also issued. Alongwith Form B a map was also enclosed which is on page 76 of the paper book. From perusal of the said map and allotment order in Form B, it is clear that the actual constructed portion of the allotted accommodation is very small and open land, which was also allotted, was more than 50 times larger than the constructed portion.
3. Under Section 3(i) of the Act building is defined to mean a residential or non-residential roofed structure and includes-
(i) any land (including any garden) garages and out houses, appurtenant to such building;
4. Land appurtenant means so much land, which is necessary for proper enjoyment of the constructed portion. If in any land of several acres a small accommodation is constructed, the said constructed accommodation cannot be allotted alongwith the entire land of several acres.
5. The Rent Control Inspector, who had inspected the premises in dispute before allotment order, mentioned in his report that in the accommodation in dispute there was a big room and another room of ordinary size and a storeroom. Inspection was made on 13.7.84. Annexure 9 to the writ petition is the report of the Inspector. Even in the map annexed with Form B allotment order, it is mentioned that just adjacent to the small constructed portion there is a portion in the form of Khandhar (ruins). Khandhar does not fall within the definition of building, as it is not roofed. At the time of inspection Kunwar Bahadur Singh Bhadauria, Chaukidar of the building on behalf of landlord was found present in the premises in dispute.
6. According to the allegations in the writ petition the portion, which has been allotted, contains the construction over an area of about 200 square yards and the open land, which is shown to have been allotted and mentioned in the map, annexed alongwith Form B is about 20 bighas. Inspector had reported that servant quarters were in possession of other persons. Even those servant quarters have also been included in Form B. Inspector further found that Chaukidar employed by landlord was in possession of the portion in dispute.
7. In my opinion firstly the land, which has been allotted could never be allotted as the entire land can not be said to be the land appurtenant. It was virtually allotment of open land, which is not permissible. Secondly the allotment order is utterly illegal as no notice to the landlord was given after declaration of vacancy and before allotment as required by Rule 9(3) of the Rules framed under the Act. Vacancy declaration and allotment was made by one and the same order. Rule 9(3) of the Rules framed under the Act is mandatory. The purpose of the said rule is to provide opportunity to the landlord to file release application if he so desires. The allotment order was therefore utterly illegal (vide R.L. Poddar v. A.D.J. 2003 (2) ARC 629, C.K. Nagarkar v. A.D.J. 2004 (2) ARC 349 and Kusum Lata Yadav v. A.D.J. 2004 (2) ARC 789).
8. Moreover respondent No. 3 has died and nothing has been brought on record to show that any of his heirs are running the school.
9. Accordingly writ petition is allowed. Allotment order as confirmed by the order of the revisional court / District Judge, Etawah through judgment and order dated 20.8.1986 dismissing the R.C Revision No. 40 of 1985 is set-aside. The possession of the entire appurtenant land except so much land which is necessary for ingress and outgress to the constructed allotted portion shall be delivered to the landlord by R.C & E.O on his filing application under Section 18(3) of the Act forthwith.
10. In respect of possession of the constructed portion alongwith so much open land, which is necessary for ingress and outgress to the said portion, legal representatives of respondent No. 3 are granted six months time to vacate provided that:
(1) Within one month from today they file an undertaking before the R.C & E.O to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the property in dispute to the landlord-petitioner.
(2) For this period of six months, which has been granted to the respondents to vacate they are required to pay Rs. 6000/- (at the rate of Rs. 1000/- per month) as damages for use and occupation. This amount shall also be deposited within one month before R.C & E.O and shall immediately be paid to the landlord-petitioner.
11. It is further directed that in case undertaking is not filed or amount of Rs. 6000/- is not deposited within one month then legal representatives of respondent No. 3 shall be liable to pay damages at the rate of Rs. 2000/- per month since after one month till the date of actual vacation.
12. Similarly if after filing the aforesaid undertaking and depositing Rs. 6000/- , the property in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2000/- per month since after six months till actual vacation.