Judgment:
V.K. Bist, J.
1. Heard the learned Counsel for the parties and perused the record.
2. Learned Counsel for the parties conceded that the present writ petition may be decided at the admission stage.
3. Present petition is directed against the order dated 05.03.2010 passed by Rent Control and Eviction Officer/ City Magistrate, Haridwar/respondent No. 1 (for brevity the R.C. & E.O.) in the case No. 12 of 2008 under Section 16(1) (a) of the U.P. Act No. 13 of 1972 (for short the 'Act') by which the R.C. & E.O. has declared the disputed accommodation as vacant and invited applications for allotment.
4. Brief facts, as alleged in the writ petition, are that the petitioner is residing in a part portion of a big building known as Ganga Mandir Patnawala, Haridwar in the capacity and status of a tenant. In the assessment list of Nagar Palika in the column of landlord there consist the names of Rajeshwar Prasad @ Swami Raghuwar Das, Tarkeshwar Prasad, Rameshwar Prasad, Dev Narayan Prasad, Satya Narayan Prasad and Ravi Kumar Gupta. Out of them one Dev Narayan received the rent from the petitioner time to time on behalf of co-landlords. After the death of Dev Narayan, other co-landlords never demanded any rent from the petitioner and the petitioner could not pay due rent in absence of correct addresses and status of other co-landlords and their respective shares in the property in question. Smt. Trapti Sanyal, mother-in-law of Smt. Alpana Sanyal/respondent No. 3 also is the tenant in one part of the said premises. After the death of Dev Narayan no one claimed or demanded the rent from the tenants. It is alleged that the respondent No. 2 in collusion with respondent No. 3 (claiming herself as landlady) had moved an application for allotment before R.C. & E.O. showing the petitioner as an unauthorized occupant. It is further alleged that on taking cognizance on the allotment application, the respondent No. 1 invited report of spot inspection through Awas Nirikshak, who also in collusion with the respondent Nos. 2 & 3 prepared an inspection report, which is totally arbitrary, false and fabricated one. It has been further asserted in the writ petition that statutory provision of Rule 8 of U.P. Urban Building (Regulation of Letting, Rent & Eviction) Act, 1972 stipulates that inspection of any building under this Rule is only possible by a Gazetted Officer. There is no post of Awas Nirikshak in the 'Act' and he cannot make such inspection. Hence, the order to inspect the building by Awas Nirikshak and the alleged report collusively prepared in compliance thereof, are totally void, illegal and without jurisdiction, therefore, the further proceeding is also void, illegal and is not tenable in the eyes of law as in the inspection report the construction is shown 20-25 years old. It is stated that provisions of the 'Act' is not applicable in the matter and property in question under the tenancy of petitioner is clearly exempted from the application of the 'Act'. The petitioner submitted his objection against the inspection report and also against proposed allotment. It is further averred in the petition that the alleged inspection report is also prepared in contravention of provision of Rule 8(2) of the 'Act' while the Awas Nirikshak did not make any efforts to inform the petitioner or landlords.
5. The R.C. & E.O. upon hearing the learned Counsel for the parties declared the vacancy vide order dated 05.03.2010 on the ground that the petitioner does not have any allotment order, therefore petitioner is an unauthorized occupant. Feeling aggrieved with the order of R.C. & E.O., the petitioner has filed the instant petition.
6. Learned Counsel for the petitioner argued that the order to inspect the building by Awas Nirikshak and the alleged report collusively prepared in compliance thereof, are totally void, illegal and without jurisdiction, therefore, the further proceeding is also void, illegal and is not tenable in the eyes of law. He further argued that provision of the 'Act' is not applicable in the matter and property in question under the tenancy of petitioner is clearly exempted of any application of the 'Act'. It is pertinent to mention here that there was no valid allotment order in favour of the petitioner. This fact is not disputed.
7. On the other hand, the learned Counsel for the respondents have argued that since the disputed accommodation has been occupied by the petitioner without an allotment order in his favour, hence the petitioner shall be deemed to be an unauthorized occupant like a trespasser. In this regard the learned Counsel for the respondents relied upon the judgment of the Apex Court in the case of Nutan Kumar and Ors. v. II Addl. District Judge and Ors. reported in : (2002) 8 S.C.C. page 31 wherein it has been held that the 'Act' specifically provides that a person who occupies the premises, without an allotment order in his favour, shall be deemed to be an unauthorized occupant of such premises. He further submitted that in the present case, since the petitioner is in unauthorized occupation, he is like a trespasser.
8. No suit has been filed by the respondents, but an application under Section 16(1)(a) of the Act was filed before the R.C. & E.O. for allotment of the disputed accommodation. On the application, enquiry was made and as per procedure vacancy was declared by the R.C. & E.O.
9. For the discussion aforesaid, I do not find any perversity or infirmity in the impugned order passed by the R.C. & E.O. thereby declaring the vacancy. The order dated 05.03.2010 does not suffer from any manifest error of law. The writ petition is devoid of merit and is liable to be dismissed outright at the threshold.
10. The writ petition is dismissed in limine. However, liberty is given to the petitioner either to move application for allotment before the R.C. & E.O. concerned or, in case, if the petitioner is aggrieved with the final order, it will be open for him to assail the same. If the allotment application is moved, the Rent Control and Eviction Officer shall also consider the application of the petitioner and decide the same in accordance with the provisions of the Act and the Rules framed under the Act.
11. No order as to costs.
12. Interim relief application (CLMA No. 2119/10) stands disposed of.