Smt. Kusum Lata Yadav Vs. A.D.J., Court No. 14 and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - the court is using strong words under sheer anguish. 1995 (2) arc 73, exposed the nexus between powerful, influential allottees and r. there was a time when bureaucracy was quite independent and powerful guided only by law and the rules. in order to redeem its lost glory it will have to rise from its ashes like a phoenix. agarwal's authority is quoted below :para 6.-this court cannot tolerate this kind of behaviour, otherwise no decent and law abiding citizen will be safe in his house. it is deeply regrettable that the authorities are turning a blind eye to these illegalities and succumbing to the politicians and behaving in the worst manner when their duty is to uphold law and order. it is the duty of the civil servants to uphold law and order and they will not be permitted to take shelter behind the plea that they are carrying out the orders of political masters when such orders are clearly and flagrantly illegal. ' para 14.-in the present case, the report of the process server dated 12.7.1994 which is part of annexure-2 to the writ petition clearly shows that no notice was served on sukumar chatterjee. in fact, rule 28 of the rules makes it clear that affixation is the last mode of service to be availed of only when the other methods fail and it is evident that no real effort was made to affect service according to the proceeding modes mentioned in the rule. ' para 16.-in the roman catholic diocess case (supra), it has been mentioned that in paragraph 22 that the notice by affixation is the last method of serving notice, and it is to be resorted to only after other methods mentioned in rule 28 to effect service have failed. it will be interesting to find out whether the officer concerned shows similar promptitude in discharge of other functions, which he is officially required to perform. it is quite interesting that praveen kumar himself gave statement to r. , air 1985 sc 1635) i have held that in any of the following contingencies allotment order is bad in law and without jurisdiction :(i) inspection is made by r. the relevant portions of the said authority (paras 17 to 21) are quoted below :17. at this juncture court takes note of the fact that the existing provisions of the act declaring vacancy have failed to achieve the desired object and publication on notice board of the office of rent control and eviction officer is an eye wash entering in itself pitfalls, to be exploited to ensure that concerned have no notice of the vacancy. raghubir singh, air 1989 sc 1933 (constitution bench). 15. para 10 of the aforesaid authority is also relevant which is quoted below :para 10. but like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations. act that while making allotment order allottee shall also be required to pay to the landlord an advance equivalent to one month's presumptive rent and on the failure of the allottee to make or offer the payment within a week from the allotment order, the same shall be rescinded. the said amount if not paid within two months from today shall be recovered by the collector from the petitioner like arrears of land revenue within a period of two months thereafter and paid to the landlord respondent. , district magistrate or his delegate like the power of release under section 21 of the act.s.u. khan, j.1. this is also one of those cases where provisions of allotment provided under section 16 of u. p. rent control act, hereinafter referred to as u.p.r.c. act (u. p. act no. 13 of 1972) has been utterly abused for grabbing a house by the petitioner who appears to have some political influence with the clear, active support of district supply officer (d. s. o. in short), moradabad. acting as rent control and eviction officer, hereinafter referred to as r. c. & e. o. sri suresh chandra jain, learned addl. district judge, court no. 14, moradabad, while allowing rent control revision no. 2 of 2003 which was filed by landlord respondents against allotment order has very elaborately given the details of the entire proceedings which were initiated and concluded within two weeks. the learned addl. district judge has risen to the occasion and has given a damning verdict exposing grave ill-treatment of the relevant provisions of allotment provided under u. p. r. c. act at the hands of pliable executive. the court is using strong words under sheer anguish. with alarming continuity such cases are coming before the court which show that inspite of grave concern shown, severe strictures passed and directions to mend their ways issued by this high court rent control & eviction officers are acting in most audacious manner. the style of passing orders of allotment by r. c. & e. os. particularly when allottees are influential persons shows utter disregard of the provisions of law, let the devil take care attitude towards directions of this court given in various judgments and abject surrender to the unjust demand of the persons in power and position. the provision of allotment has been contrived into most convenient tool of house grabbing. justice markandey katju in his leading judgments on the subject in sunil chatterjee v. r. c. & e. o., 1995 (2) arc 79 and r.k. agarwal v. r. c. & e. o.. bareilly. 1995 (2) arc 73, exposed the nexus between powerful, influential allottees and r. c. & e. os. and issued several directions with the fond hope that such things would not happen in future. alas, hope floundered and was sunk by unscrupulous and uncaring r. c. & e. os. there was a time when bureaucracy was quite independent and powerful guided only by law and the rules. in order to redeem its lost glory it will have to rise from its ashes like a phoenix.2. latter part of para 6 of the aforesaid r. k. agarwal's authority is quoted below :'para 6.-this court cannot tolerate this kind of behaviour, otherwise no decent and law abiding citizen will be safe in his house. a mob of hooligans may storm into the house with a surreptitious allotment order, beat up the occupants, throw them out along with their belongings and hoist a flag of the party as is being done these days. it is deeply regrettable that the authorities are turning a blind eye to these illegalities and succumbing to the politicians and behaving in the worst manner when their duty is to uphold law and order. the bureaucrats and the police receive their salaries and their perquisites from the taxes paid by the public. it is therefore, their undoubted duty to give in return to the public law and order, but these bureaucrats and police officers are not justifying their salt by behaving in a cowardly fashion before the politicians. it is the duty of the civil servants to uphold law and order and they will not be permitted to take shelter behind the plea that they are carrying out the orders of political masters when such orders are clearly and flagrantly illegal.'3. para 12, part para 14 and paras 16 and 22 of the aforesaid authority of sunil chatterjee are quoted below :'para 12.-before dealing with the facts of the case, it is necessary for me to mention that a new phenomenon has arisen in uttar pradesh recently, that is the phenomenon of house grabbing. the modus operandi in the series of cases which have come before this court is almost the same, which is to procure a collusive allotment order from the rent control and eviction officer, and then take possession of the house. the same has happened in the present case also. illegal house grabbing has become the order of the day in the state of uttar pradesh and the time has come when this must be stopped, otherwise civilized society will cease to exist.''para 14.-in the present case, the report of the process server dated 12.7.1994 which is part of annexure-2 to the writ petition clearly shows that no notice was served on sukumar chatterjee. from the facts disclosed it is evident that the so called service by affixation is fraudulent. in fact, rule 28 of the rules makes it clear that affixation is the last mode of service to be availed of only when the other methods fail and it is evident that no real effort was made to affect service according to the proceeding modes mentioned in the rule. the facts of the case disclose that the rent control and eviction officer was sitting with a pre-determined mind to allot the premises to the respondent no. 3 and the entire proceeding held by him was collusive and hence illegal.''para 16.-in the roman catholic diocess case (supra), it has been mentioned that in paragraph 22 that the notice by affixation is the last method of serving notice, and it is to be resorted to only after other methods mentioned in rule 28 to effect service have failed. in my opinion there is nothing to indicate that any effort was really made to serve sukumar chatterjee according to the methods mentioned in clauses (a) to (c) of rule 28, and hence rule 28 has been violated.''para 22.-it may be mentioned that by another order dated 13.4.1995 i had directed the home secretary and director general of police, uttar pradesh to file their personal affidavits stating how many cases of illegal house grabbing have come to their notice during the last three months, giving details of the same. in pursuance of this direction the principal home secretary and the director of police, u. p. appeared personally before me and filed their personal affidavits in which they have given the list of several cases relating to illegal house grabbing in uttar pradesh and also stated that the state government has now taken action against the illegal house grabbing with full seriousness and have issued clear orders to all the authorities to take serious action in the matter. a perusal of these affidavits makes it clear that in u. p. illegal house grabbing is going on for some time as admitted by the authorities themselves.'4. in the following cases i have also found that provision of allotment was utterly misused and was made to subserve as a device of house grabbing :(1) uma shankar v. xth a.d.j. kanpur and ors., 2003 (4) awc 2895 : 2003 (2) arc 228.(2) leela watt (smt.) and ors. v. ram swaroop and ors., 2003 (6) awc 5184 : 2003 (2) arc 483.(3) ram sumer v. ist a.d.j., kanpur and ors., 2003 (6) awc 5208 : 2003 (2) arc 570.(4) ratan lal poddar v. vth a.d.j., gorakhpur and ors., 2004 (1) awc 779 : 2003 (2) arc 629.(5) chandra kant nagarkar v. vth a.d.j. gorakhpur, 2004 (1) arc 349.5. the facts of the present case as mentioned in the judgment of the revisional court/a.d.j. court no. 14, moradabad, are as follows :6. house in dispute is first floor accommodation situate in moradabad consisting of one drawing room (baithak) and four rooms along with other amenities. on the ground floor office of district cane officer is situate. until 1999 sri dalel singh who at that time was district cane officer was residing in the first floor accommodation as its tenant. after his retirement in the year 1999 he left and vacated the accommodation and shifted to another city along with his family. rent control inspector on 25.9.2003 inspected the premises. it is not clear whether inspection was made by r.c.i. under the order of r. c. & e. o. or by himself. the allotment application filed by petitioner was undated, hence it cannot be said that on what date the said application was filed. the inspection was made without any intimation to the landlord or to the occupant, if any, in violation of mandatory provisions of rule 8 (2) of the rules framed under u.p.r.c. act. according to the report of r.c.i., the accommodation in dispute was locked and on inspection of the same through chinks in the doors and windows, r.c.i. found that no worthwhile household goods were kept therein. within four days of the said report house was allotted to the petitioner, i.e., on 29.9.2003. in the allotment application wasim akhtar was mentioned as landlord and his address was shown only as kisrol. the address was incomplete as neither number of the house was mentioned nor any other detail apart from the name of locality/mohalla was given. the district judge has further observed that even though on the allotment application there is an order of r.c. & e. o. dated 8.9.2003 for registering the same and calling for report however, there is no order sheet of 8.9.2003 and that from perusal of the record of the r.c. & e.o. it is evident that order sheet was prepared on 29.9.2003 as the first date mentioned therein was 25.9.2003/29.9.2003. a.d.j. also held that no notice was served upon the landlord and the report of the process server was false. the revisional court also held that inspection by r.c.i. was illegal as he was not gazetted officer.7. in the rent control inspector's report copy of which is annexure-1 to the writ petition it is mentioned that the report was being given in pursuance of order passed by rent control & eviction officer on the allotment application of smt. kusum lata yadav. the date of order for inspection passed by rent control and eviction officer is not mentioned in the said report. from the said report it is quite evident that inspection was made without any prior notice either to the landlord or to the occupant. there is no mention in the report that facts pertaining to vacancy were sought to be ascertained from two respectable persons of the locality as required by rule 8 (3). the only thing which is mentioned is that information was sought from the office of district cane officer situate on the ground floor and district cane officer (name not mentioned) informed that previous district cane officer dalel singh was tenant in the first floor accommodation and after retirement in the year 1999 he had shifted to muzaffarnagar, rent control & eviction officer on the same date, i.e., 25.9.2003 directed that vacancy should be notified. consequently vacancy was notified on the same day and 29.9.2003 was fixed for disposal of release/allotment application. in the said notification it was mentioned that its copy should be sent to wasim akhtar (landlord) and should be affixed on the notice board of d.s.o. for information to general public. rent control & eviction officer thought that as house was lying vacant for four years hence four days notice (one day for each year) to the landlord was sufficient. on the same day, i.e., 25.9.2003 peon/daftari of the office of rent control & eviction officer gave a report that landlord wasim akhtar refused to accept notice and copy of notification of vacancy. r.c. & e. o. directed service through affixation. the same peon/daftari shri iliyas ahmad on the next date, i.e., 26.9.2003 reported that he had executed the said order and had effected the service through affixation at the door of landlord. the remarkable promptitude shown by rent control & eviction officer concerned is stunning. it will be interesting to find out whether the officer concerned shows similar promptitude in discharge of other functions, which he is officially required to perform.8. the building in dispute was allotted to petitioner on 29.9.2003, i.e., within four days from vacancy report by rent control inspector. form-b was also issued simultaneously and it was shown to have been sent to landlord through post. on the very next date, i.e., 30.9.2003 allottee filed an application that one praveen kumar, son of om prakash was occupying the house in dispute and he was claiming himself to be the tenant and even after looking into the allotment order he refused to deliver possession to the allottee. on the same date, i.e., 30.9.2003 rent control officer/d.s.o. shri govardhan lal directed r.c.i. to give report. r.c.i. also on the next date, i.e., 1.10.2003 gave report that according to the statement of two witnesses namely manzoor and avinash chandra gupta the house in dispute was vacated by dalel singh and he had handed over possession to praveen kumar whose lock was found in the accommodation in dispute. r.c.i. also recorded the statement of aforesaid manzoor and avinash chandra gupta. in the report r.c.i. suggested that notice in the form of form-c be issued to praveen kumar the unauthorized occupant. it is quite interesting that praveen kumar himself gave statement to r.c.i. on 1.10.2003 that he was in possession since after vacation of the house in dispute by dalel singh. in this manner within a week r.c.i. contradicted himself. on 25.9.2003, he gave statement that house was unoccupied and locked and thereafter on 1.10.1983, he gave report that praveen kumar was in possession since 1999 when dalel singh the previous district cane officer vacated the house in dispute. on 1.10.2003, itself r.c. & e. o. issued form-c against praveen kumar and directed him to handover possession of the house in dispute to allottee smt. kusum lata yadav. thereafter on 9.10.2003 on the application of smt. kusum lata yadav form-d was issued by r.c. & e.o. and police on the same date, i.e., 9.10.2003 delivered possession to the allottee. the police in its report mentioned that the household goods of dalel singh were found in the accommodation in dispute. the additional district judge has also mentioned that petitioner allottee smt. kusum lata yadav is ex-chairman, zila panchayat and wife of bijendra pal singh yadav present president of the district samajwadi party, moradabad. from the narration it is quite clear that praveen kumar was only a confidant of the allottee and had been brought into picture in order to avoid service of form-c & d upon the landlord.9. in the two cases decided by me in r. l. poddar v. a.d.j., 2004 (1) awc 779 : 2003 (2) arc 629 and c. k. nagarkar v. a.d.j., 2004 (2) arc 349. almost similar position was there. after placing reliance upon several supreme court authorities (including yogendra tewari v. d. j., air 1984 sc 1149 and ganpat roy v. a.d.m., air 1985 sc 1635) i have held that in any of the following contingencies allotment order is bad in law and without jurisdiction :(i) inspection is made by r.c.i. without notice to landlord in violation of rule 8.(ii) no notice is issued to the landlord before declaring vacancy.(iii) no notice is issued to the landlord '- after declaring vacancy and before allotment.(iv) allottee takes possession from the previous tenant.10. in the instant case, each and every aforesaid contingency exists rendering the vacancy declaration and allotment wholly illegal and without jurisdiction.11. the alarming speed with which proceedings have been completed and the fraud played by process server, r.c.i. and r.c. & e.o. makes it abundantly clear that they were more loyal than the king and more interested in allotment and delivery of possession of the house in dispute to the petitioner than petitioner herself. every rule was violated. the additional district judge shri suresh chandra jain very boldly exposed the illegalities committed by r.c. & e.o. the learned counsel for petitioner has argued that the vacancy declaration and allotment orders cannot be challenged only on the ground that these orders were passed in few days. it is not the only ground in the instant case to quash the said orders. however, in the absence of any other ground only the alarming speed of disposal itself should have sufficed.12. no notice of vacancy was published in the newspapers as directed by this court through judgment in jagdish v. district judge, kanpur nagar and ors., 2002 (1) awc 766 : 2002 (1) arc 327. in the said authority justice a. k. yog observed that the provisions of vacancy declaration and allotment were being misused and orders were being passed by keeping the landlord and other applicants for allotment in dark hence it was necessary to direct that vacancy must be published in two newspapers in order to ensure knowledge of proceedings to the landlord. the relevant portions of the said authority (paras 17 to 21) are quoted below :'17. at this juncture court takes note of the fact that the existing provisions of the act declaring vacancy have failed to achieve the desired object and publication on notice board of the office of rent control and eviction officer is an eye wash entering in itself pitfalls, to be exploited to ensure that concerned have no notice of the vacancy.18. the release order in favour of the landlord with respect to the accommodation in question declared void. the delegated authority is directed (i) not to give effect to the said order of release passed in favour of the respondent no. 3 ; (ii) notify the vacancy on the notice board as contemplated under the act : (iii) 'vacancy' of the accommodation in question to be published in two newspapers (one hindi and one english) having wide circulation in the city/district (approved by the concerned district magistrate) to ensure wide notice and information to the concerned public ; and (iv) proceed with the allotment after 15 days of the publication in accordance with law.19. a writ of mandamus is further issued directing district magistrate/delegated authorities/ the rent control and eviction officer to declare vacancy, apart from the notice board on their office, also in two news papers of the concerned city having wide circulation giving information and genuine opportunity to the interested public to apply for allotment and ensuring that the proceedings under section 16 of the act are not by proxy and that allotment proceedings are not the same proceedings based on surreptitious conduct of the officials/employees in their offices and unscrupulous members of the public.20. copy of this order shall be sent to all district magistrates in the state of u. p. having jurisdiction under u. p. act no. 13 of 1972 for information to the delegated authorities exercising jurisdiction under section 16 of the act to publish 'vacancy' in two newspapers of repute having wide circulation in the concerned city/district before proceedings with 'allotment/release proceeding under section 16 of the act in future.21. copy of this order shall also be sent to the chief secretary, state of u. p., lucknow, by the learned standing counsel forthwith so that adequate legislative amendment in the act be considered to check the misuse of 'vacancy' as indicated above.'13. learned counsel for the petitioner has argued that the said authority does not lay down correct law as it amounts to legislation, and requires to be referred to larger bench.14. the statement that judges do not make law is a fairy tale and we no more believe in such tales :india is governed by a judicial system identified by a hierarchy of courts, where the doctrine of binding precedent is a cardinal feature of its jurisprudence. it used to be disputed that judges make law. today it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the state flows from the decisions of the superior courts. 'there was a time,' observed lord reid, 'when it was thought almost indecent to suggest that judges make law - they only declare it ........ but we do not believe in fairly tales any more.' 'the judge as law maker', p. 22.' (fara 7: union of india v. raghubir singh, air 1989 sc 1933 (constitution bench).15. para 10 of the aforesaid authority is also relevant which is quoted below :'para 10. but like all principles evolved by man for the regulation of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limitations. limitations arising by reference to the need for readjustment in a changing society, a readjustment of legal norms demanded by a changed social context. this need for adapting the law to new urges in society brings home the truth of the holmesian aphorism that 'the life of the law has not been logic it has been experience.' oliver wendell holmes, 'the common law' p. 5 and again when he declared in another study oliver wendell holmes, 'common carriers and the common law', (1943) 9 curr lt 387 (388), that 'the law is forever adopting new principles from life at one end,' and 'sloughing off' old ones at the other. explaining the conceptual import of what holmes had said, julius stone elaborated that it is by the introduction of new extra legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined. julius stone, 'legal system and lawyers reasoning' p. 58-59.'16. experience taught us that the provisions of declaration of vacancy and allotment under sections 12 and 16 of u. p. rent control act were being utterly misused particularly when allottees were influential persons hence the additional safeguard of publication of vacancy in the newspapers had to be provided. the requirement of publication in the newspapers provided for by justice a. k. yog in the aforesaid authority was the need of the hour. it has gone a long way in curbing the malpractices prevalent in the system of allotment. instead of doubting the correctness of the said authority and feeling the necessity of referring the same to the larger bench i fully agree with the said authority and re-affirm and reiterate the requirement of publication of vacancy in the two' newspapers provided therein.17. rule 28 of the rules framed under u.p.r.c. act provides modes of service which include personal service, service upon any adult member of the family, by leaving it at last known place of residence or business or by-affixing it. (sub-rule 1) and'if a party files a duly stamped and addressed envelope for service of any notice then it shall be served by registered post.' (sub-rule 2).18. in some cases the applicants are interested in obtaining ex parte orders. in any view of the matter no party may be interested in making extra efforts which are optional to serve the opposite party. the provision of service through registered post if made optional becomes only ornamental. no applicant may prefer to adopt that mode. in view of this unless this provision is made mandatory, it cannot serve the purpose for which it has been framed. in allotment/released matters under section 16 of the act it has been found in several cases that notices are not actually served upon the opposite parties.19. accordingly it is directed that in proceedings under section 12/16 of u.p.r.c. act before rent control & eviction officers notice upon opposite parties shall invariably be served through registered post also.20. learned counsel for the allottee petitioner has argued that unless landlord respondent shows that he has suffered some loss, impugned order of allotment cannot be set aside only on the ground that no opportunity of hearing was provided to him. in this regard reliance has been placed upon 1999 (7) scc 332, air 2001 sc 2783 and 2003 (7) scc 693 (copies of judgments not supplied). this argument is not tenable for the reasons that firstly the said principle applies only to administrative orders and not to judicial or quasi-judicial orders. if a suit is decreed ex parte and defendant files application for setting aside ex parte decree under order ix, rule 13, c.p.c. then in the said restoration application it is not at all necessary to disclose the defence against the pleas taken by plaintiff in the plaint. secondly by no stretch of imagination it can be said that impugned orders passed by r.c. & e.o. did not cause any loss or damages to the landlord. landlord had been deprived of his right to file release application and his house had been grabbed for no rent.21. learned counsel for the petitioner also argued that rule 8 of the rules requiring notice to the landlord before inspection is directory. in this regard reference has been made to 1980 arc 591, 1982 arc 53. 1979 arc 547 and 1979 uprcc 93 (copies of judgments not supplied). however, in view of subsequent authorities of the supreme court particularly yogendra tiwari and ganpat roy (supra) it is settled that rule 8 is mandatory and not directory.22. it is provided under section 16 (9) of the u.p.r.c. act that while making allotment order allottee shall also be required to pay to the landlord an advance equivalent to one month's presumptive rent and on the failure of the allottee to make or offer the payment within a week from the allotment order, the same shall be rescinded. in the instant case, no rent was directed to be paid through allotment order. in fact in the allotment order no rent was even fixed or mentioned. in the copy of the proforma of the allotment order in question. annexure-5, column of rent is blank. without rent there cannot be any tenancy (section 105, t.p. act). the allotment order is liable to be set aside on this ground alone (vide r. l. poddar and c. k. nagarkar supra). it has been stated in para 30 of the writ petition that allottee sent through money order rent from 29.9.2003 till 29.12.2003 at the rate of rs. 18.75 per month on 26.10.2003. it is not clear from where this magic princely figure of rs. 18.75 was conjured by the allottee.23. the house in dispute is situate in moradabad and contains five rooms, hence in no case its rent must be less than rs. 2,000 per month. the petitioner is directed to pay the damages for use and occupation to the landlord at rs. 2,000 per month from the date of occupation till date of vacation. the said amount if not paid within two months from today shall be recovered by the collector from the petitioner like arrears of land revenue within a period of two months thereafter and paid to the landlord respondent.24. by interim order passed in this writ petition rent control & eviction officer was directed to decide the question of vacancy in pursuance of order of remand challenged in the instant writ petition passed by revisional court. the same rent control & eviction officer sri gowardhan lal again declared vacancy on 27.2.2004. the copy of the said order has been filed by petitioner through supplementary-affidavit.25. accordingly it is directed that in view of section 18 (3) of u.p.r.c. act petitioner shall deliver possession of the property in dispute to the landlord respondent positively by 21.11.2004, failing which district magistrate, moradabad, shall ensure that possession is delivered to the landlord within a fortnight therefrom. within two weeks from getting possession landlord may file release application. if no release application within the aforesaid time is filed or if filed is rejected then rent control & eviction officer shall publish the vacancy in the newspapers and invite allotment applications in accordance with aforesaid authority of jagdish v. district judge. it is directed that the district magistrate must transfer the case to some other rent control & eviction officer and it shall not be heard by sri gowardhan lal, d.s.o., moradabad.26. in several cases it has been found that provision for vacancy declaration and allotment is being misused by r.c. & e.o. the instant case is a glaring example of the said misuse. important rights in immovable property are affected by allotment. the malpractice of arbitrary ex parte allotment may sufficiently be checked if power of allotment and release under section 16 of u. p. rent control act is conferred upon judicial officers instead of executive officers, i.e., district magistrate or his delegate like the power of release under section 21 of the act. let the legislature ponder over this aspect.27. writ petition disposed of with the above observations.