Civil Appeal No 157 of 1985 From the Judgment and Order dated 2011984 of the Allahabad High Court in WP No 1404 of 1983
VM Tarkunde and Shakeel Ahmed Syed for the Appellant
SC Maheshwari RD Upadhyay and Manoj Saxena for the Respondents
The Judgment of the Court was delivered by SINGH J
This appeal by special leave is directed against the judgment of the High Court of Allahabad Lucknow Bench dt
January 20 1984 setting aside order of the Addl
District Judge Lucknow dt
January 18 1983 and quashing the allotment order made in appellant s favour and directing the Addl
District Magistrate Civil Supplies Lucknow to reconsider the applications made for allot ment of the premises in dispute after giving notice to the respondent landlord
129 The dispute relates to 1st floor of House No 10916 situate in Model House Colony Aminabad Lucknow
Mauji Ram Gupta the owner of the house was residing in the ground floor of the house while the 1st floor was let out to a tenant
Vacancy in the first floor arose several persons including the appellant HC Ghildiyal and Ramakant Srivastava made appli cations for allotment of the same
Mauji Ram Gupta the landlord also made an application for the release of the premises to him under sec
16 of the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972 hereinafter referred to as the Act
The Addl
District Magistrate respondent No 4 by his Order dt
25276 rejected Mauji Ram Gupta s application and allotted the premises to HC Ghildiyal but he did not occupy the premises instead he informed respondent No 4 that he did not require the premises
Thereaf ter respondent no4 allotted the first floor of the house to the appellant by his order dt
July 23 1976 and in pursuance to that order she obtained possession of the premises on 25776
Mauji Ram Gupta the landlord chal lenged the allotment order by means of revi sion application before the District Judge but the same was rejected
Mauji Ram Gupta entered into an agreement for the sale of the house with GL Pahwa respondent No 1 and in part performance of the agreement he permitted GL Pahwa to occupy the ground floor of the house in November 1976
GL Pahwa made application for allotment and the respondent No 4 allot ted the ground floor to him on 311276 this appears to have been done with a view to regularise his possession
Mauji Ram Gupta executed a registered sale deed in favour of GL Pahwa on 18777 transferring the entire house including the premises in dispute to him as a result of which respondent No 1 became the owner and the landlord of the premises in dispute
RK Srivastava on unsuc cessful applicant for the allotment of the premises in dispute had challenged the allot ment order dt
23786 made in appellant s favour under sec
18 of the Act
The District Judge by his order dt
18877 allowed his revision application set aside the allotment order made in appellant s favour and directed respondent No 4 to reconsider the applica tions made for allotment of the premises in accordance with law
In pursuance of the directions issued by the District Judge re spondent No 4 considered the applications and by his order dt
4178 he again allotted the premises to the appellant and rejected the claims of other applicants
Notice of the allotment proceedings was not given to re spondent No 1 although by that time he had acquired full rights of a landlord
It appears that respondent had made an application to the State Govt
for release of the first floor and that had been forwarded by the Govt
to re spondent No 4 which he disposed of by the same order dt 4178
Respondent No 1 filed a 130 revision application under sec
18 of the Act challenging the allotment order dt 4178
He filed a review application also before re spondent No 4 for recall of the order dt 4178
During the pendency of the review application the revision application made by respondent No 1 was dismissed by the District Judge on 28278 for want of prosecution
However the review application of respondent No 1 was allowed by respondent No 4 by his order dr 141281 on the finding that since the premises in dispute was a part of land lord s building which he was occupying it was mandatory that notice should have been issued to the landlord and since no notice had been issued to him the allotment order was vitiat ed
On these findings he recalled his Order dated 4178
The appellant challenged the order by means of a revision application before the District Judge under sec
18 of the Act
The Addl
District Judge Lucknow exer cising powers of the District Judge allowed the revision application by his order dt
18183 and set aside the order of respondent No 4 dt
141281 on the findings that review application was not maintainable and respondent No 4 had no jurisdiction to review his order on the ground of absence of notice to respondent No 1 who was transferee land lord
Respondent No 1 challenged the validity of the order of the Addl
District Judge dt
18183 by means of a writ petition under article 226 of the Constitution before the High Court
A learned Single Judge of the High Court allowed the writ petition by his order dt
January 20 1984 and quashed the order of the Addl
District Judge and directed respondent No 4 to consider the application for allot ment for giving notice to respondent No 1
Aggrieved the appellant challenged the validi ty of the order of the High Court
Before we consider the submissions made on behalf of the appellant it is necessary to briefly notice the findings recorded by the High Court
The High Court held that since the District Judge while setting aside the initial order of allotment made in appellant s favour dt
23776 directed respondent No 4 to consider the allotment applications in accord ance with law
Respondent No 4 was under a legal duty to issue notice to respondent No 1 who had by that time acquired rights of land lord
Since no notice was given to him the allotment proceeding was rendered illegal
The High Court further held that even though the landlord s application for release of the premises in dispute had been rejected the transferee landlord had right to nominate a tenant of his choice in accordance with sec
172 of the Act
But as no notice was issued to him he could not exercise his right to nominate a tenant of his choice although the appellant as well as the authority considering the application for allotment both had ac quired 131 knowledge that respondent No 1 was the trans feree landlord occupying a portion of the building
The High Court held that provisions of sec
172 were mandatory and its non compliance rendered the allotment order void
The High Court held that as the order of allotment dt 4178 was made without giving notice to the landlord the alloting authority was competent to recall its order in exercise of its inherent jurisdiction
On these find ings the High Court set aside the order of the Addl
District Judge and directed the alloting authority to reconsider the applications for allotment after giving notice to the landlord respondent No 1
Shri Tarkundc learned counsel for the appellant urged that the High Court committed error in setting aside the allotment order and directing the District Magistrate to reconsid er the allotment applications at the instance of GL Pahwa respondent No 1
He further urged that since Mauji Ram Gupta the erst while landlord s application for release of the premises in dispute had been dismissed and revision against that was also dismissed for non prosecution the erstwhile landlord had exhausted all his rights available to him under the Act
GL Pahwa being the successor in interest of Mauji Ram Gupta did not and could not acquire any further right either to get the premises in dispute released in his favour or to challenge the validity of the allotment order
GL Pahwa was not entitled to maintain a review application and Addition al District Magistrate had no jurisdiction to recall his order dated 4178 alloting the premises to the appellant and further he was not entitled to any notice either under sec tion 172 of the Act or under Rule 93 as the requisite notice had already been issued to the erstwhile landlord Mauji Ram Gupta who had contested the allotment proceedings
Having given our anxious consideration to these submissions and having regard to the facts and circumstance of the case we do not find any merit in the submissions
When a building or a part of a building falls vacant or is likely to fail vacant the District Magistrate under section 161a of the Act has jurisdiction to issue allotment order requiring the landlord to let the build ing or part thereof to the person specified in the order
The landlord may apply to the District Magistrate for release of the whole or any part of such building under section 161b of the Act if the release applica tion is allowed the landlord is permitted to occupy the building or part thereof as the case may be
But if release application is dismissed the District Magistrate is empowered to issue allotment order in favour of an applicant and in pursuance thereof the allot tee is entitled to take possession
Before applications for allotment are con 132 sidered by the District Magistrate it is mandatory for him to serve notice of the vacancy on the landlord informing him the date on which the allotment is to be considered as prescribed by Rule 9 of the UP Urban Build ings Regulation of Letting Rent and Evic tion Rules 1972 hereinafter referred to as the Rules
Rule 93 requires service of notice and intimation of the date fixed for considering the allotment of the premises which may have fallen vacant or is likely to fall vacant
This is mandatory as has been held by this Court in Yoginder Tiwari vs District Judge Gorakhpur and Ors and in catena of cases the High Court of Allahabad has taken the same view it is not necessary to burden the judgment by refer ring to all those decisions
The object and purpose of the notice to the landlord regard ing the date fixed for allotment proceedings is to enable him to file his objections if any to the allotment proceedings or to make application for release of the premises as contemplated by section 161a of the Act or to nominate a tenant of his choice if he himself is in occupation of a portion of the building
An allotment order made without giving notice to the landlord as required by Rule 93 would be rendered illegal
We there fore agree with the view taken by the High Court
At the initial stage of allotment proceed ings for the year 1976 Mauji Ram Gupta the erstwhile landlord had made application for release of the accommodation and the first floor of the house but that application was rejected and thereupon the District Magistrate allotted the premises to HC Ghildiyal by his order dated 23776 Mauji Ram Gupta s revision application against the order rejecting his release application was rejected by the Dis trict Judge on 5876
Meanwhile the District Magistrate allotted the premises to the appel lant by his order dated 23776
On the dis missal of the revision application of Mauji Ram Gupta his claim for release of the premises in dispute stood rejected final ly
As noted earlier Mauji Ram Gupta sold the entire house in dispute to GL Pahwa on 18777 and the allotment order in appellant s favour was set aside by the Additional Dis trict Judge on 8877 at the instance of RK Srivastava on unsuccessful applicant for the allotment of the premises in dispute
It is noteworthy that the appellant took no pro ceedings to challenge the order of Additional District Judge dt 8877 under which the allotment order was set aside and the District Magistrate was directed to reconsider the allotment applications in accordance with law
In such a situation GL Pahwa who had admittedly became the landlord of the premises in dispute was entitled to exercise fights of the landlord available to him under the Act
Section 172 lays down that where a part of a building is in occu 133 pation of landlord for a residential purpose the allotment of any other part thereof under section 161a shall be made in favour of a person nominated by the landlord
This provision safeguards interest of the landlord to have a tenant of his choice if he is occupying a portion of the building
The legislature enacted sec
172 with a view to ensure peaceful living to a landlord and for that purpose it permitted the landlord to have a tenant of his choice
The landlord s valuable right cannot be taken away by the Dis trict Magistrate while exercising his powers of allotment under sec
161a of the Act
The scope and purpose of sec
172 of the Act was considered by this Court in Babu Singh Chauhan vs Rajkumar Jain  Ors  and the Court observed A perusal of this statutory provision would clearly dis close that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises which arc a part of the building occupied by the landlord and allotment in the vacancy should be made only to a person nominated by the landlord
The dominant purpose to be sub served by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord
It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord there is no question of the landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the grounds of personal necessity
The statute however while empowering the prescribed authority to allot the accommodation safe guards at least the right of the landlord to have a tenant of his choice
 In the instant case there is no dispute that when the allotment proceedings were taken in pursuance of the Dis trict Judge s Order dt 8877 and when the allotment was made in appellant s favour on 4178 no notice of the allot ment proceedings was issued to GL Pahwa respondent No 1 although the appellant as well as the Addl
District Magis trate both knew that GL Pahwa had stepped in the shoes of landlord and that he was occupying ground floor of the building
The allotment order was made in appellant s favour on 4178 but the landlord though residing in a part of the building was denied opportunity of nominating a tenant of his choice as contemplated by sec
172 of the Act
In these circumstances there can be no doubt that 134 the order of the Addl
District Magistrate alloting the premises to the appellant was completely without jurisdic tion and against the plain terms of sec
172 of the Act
The submission of Shri Tarkunde that on dismissal of the revision application of Mauji Ram Gupta the erstwhile land lord all fights of the landlord stood exhausted and GL Pahwa being the transferee landlord could not exercise any further fight of landlord in the matter relating to allot ment of the premises in dispute are untenable
Mauji Ram Gupta s application for release of the premises was dis missed and a revision application filed by him against the order of the Addl
District Magistrate refusing to release premises in dispute stood rejected but if the conditions set out in sec
161b existed we see no reason as to why the transferee landlord could
not press his case for re lease but we do not think it necessary to consider this question in detail or to express any opinion on this ques tion as admittedly the transferee landlord respondent No 1 made no application for release of the premises in dispute to the District Magistrate or to the prescribed authority and his application made to the State Government for release of the accommodation which was forwarded to the District Magistrate was rejected and the High Court has upheld that order and no challenge has been made by GL Pahwa to that order
Assuming that the transferee landlord s fight to get the premises in dispute released stood exhausted GL Pahwa being the landlord had every fight to nominate a tenant of his choice in accordance with sec
172 of the Act
Admit tedly no notice had been issued to GL Pahwa affording any opportunity of nominating a tenant of his choice before the order of allotment dt 4178 was made
The landlord has fight to apply for release of the premises on the falling of a vacancy failing which he has another fight under sec
172 to nominate a tenant of his choice if he is occupying a portion of the building
It is the duty of the authority considering the allotment under sec
161a of the Act to afford opportunity to the landlord to nominate tenant of his choice and if the landlord nominates a person of his choice the authority is bound to allot the premises in favour of the nominee of the landlord
Mauji Ram Gupta was not given that opportunity there was thus no question of his having exhausted his right to nominate a tenant of his choice
Learned counsel for the appellant urged that the Addl
District Magistrate had no power to allow the review appli cation made by GL Pahwa or to recall his order dt 4178 alloting the premises in dispute to the appellant
165 provides for review of an order of allotment at the instance of a landlord on an application made within 7 135 days
In the instant case the Addl
District Magistrate by his Order dt
141281 recalled his order dt
41 78 allot ing the premises in dispute to the appellant on the ground that no notice of the proceeding had been served on the landlord respondent No 1 and that there was enough evi dence on record to show that the premises in dispute was a part of the landlord s accommodation yet he was not given opportunity to nominate a tenant of his choice
The Addl
District Magistrate therefore recalled the order on the ground that the allotment order had been issued in violation of the mandatory provision of sec
172 of the Act
No exception can be taken to the correctness of the merit of the order of the Addl
District Magistrate
As discussed above we have already expressed our opinion that the allot ment order dt 4178 issued in appellant s favour was rendered illegal for the non compliance of the mandatory provision of sec
172 of the Act
In that view even if there was any procedural defect in entertaining the review application it would not be proper and desirable to inter fere with the order of the Addl
District Magistrate more so when the High Court has already upheld that order
In view of the above discussion we are of the opinion that the High Court s order does not suffer from any error of law and the appellant is not entitled to any relief
We accord ingly dismiss the appeal with costs
MLA Appeal dis missed


Summary:
One Mauji Ram Gupta was the owner of a house consisting of ground floor and first floor
When the vacancy in the first floor arose the landlord applied for release of the premises section 16 of the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972
Respondent No 4 the Additional District Magistrate rejected the claim of the landlord and allotted the first floor to the appellant
Thereafter Respondent No 1 pur chased the disputed house on 18777 and occupied the ground floor
The aforesaid order of allotment was set aside on 18877 by the District Judge with a direction to respondent No 4 to reconsider the applications made for allotment of the premises in accordance with law
Respondent No 4 reconsidered the applica tions and by his order dated 4178 again allotted the premises to the appellant after rejecting the claims of other applicants
However in a review petition filed by re spondent No landlord Respondent No 4 set aside the aforesaid order of allotment by his order dated 141281 on the ground that since the premises in dispute was a part of the landlord s building which he was occupying it was mandatory under section 172 of the Act that notice should have been issued to the landlord and since no notice had been issued to the landlord the order was vitiated
Aggrieved by the order of Respondent No 4 the appellant filed a revision application before the District Judge
The District Judge set aside the order dated 141281 passed by Respondent No 4 but the same was restored by the High Court in a writ petition filed by respondent No 1
The High Court also directed respondent No 4 to consider the 127 applications for allotment after giving notice to the landlord respondent No 1
Dismissing the appeal to this Court HELD 1
The allotment order dated 4178 issued in appellant s favour was rendered illegal for the non compliance of the mandato ry provisions of sec
172 of the Act
In that view even if there was any procedural defect in entertaining the review application it would not be proper and desirable to inter fere with the order of the Addl
District Magistrate more so when the High Court has already upheld that order
I35C 21 When a building or a part of a build ing falls vacant or is likely to fall vacant the District Magistrate under section 161 of the Act has jurisdiction to issue allotment order requiring the landlord to let the building or part thereof to the person specified in the order
The landlord may apply to the District Magistrate for release of the whole or any part of such building under section 16ib of the Act
If the release application is allowed the landlord is permitted to occupy the build ing or part thereof as the case may be
But if release application is dismissed the District Magistrate is empowered to issue allotment order in favour of an applicant and in pursu ance thereof the allottee is entitled to take possession
131G H 22
Before applications for allotment are considered by the District Magistrate it is mandatory for him to serve notice of the vacancy on the landlord informing him the date on which the allotment is to be considered as prescribed by Rule 9 of the UP Urban Build ings Regulation of Letting Rent and Evic tion Rules 1972
The object and purpose of the notice to the landlord regarding the date fixed for allotment proceedings is to enable him to file his objections if any to the allotment proceedings or to make application for release of the premises as contemplated by section 161a of the Act or to nominate a tenant of his choice if he himself is in occupation of a portion of the building
An allotment order made without giving notice to the land lord as required by Rule 93 would be ren dered illegal
131H 132A C D 23
Section 172 of the Act lays down that where a part of a building is in occupa tion of landlord for a residential purpose the allotment of any other part thereof under section 161a shah be made in favour of a person nominated by the landlord
This provision safeguards interest of the landlord to have a tenant of his choice if he is 128 occupying a portion of the building
The legislature enacted sec
172 with a view to ensure peaceful living to a landlord and for that purpose it permitted the landlord to have a tenant of his choice
The landlord s valuable right cannot be taken away by the District Magistrate while exercising his powers of allotment under sec161a of the Act
132H 133B In the instant case no notice of the allotment proceedings was issued to GL Pahwa respondent No I although the appel lant as well as the Addl
District Magistrate both knew that GL pahwa had stepped in the shoes of landlord and that he was occupying ground floor of the building
The allotment order was made in appellant s favour on 4178 but the landlord though residing in a part of the building was denied opportunity of nominating a tenant of his choice as contem plated by sec
172 of the Act
In these circumstances there can be no doubt that the order of the Addl
District Magistrate allot ing the premises to the appellant was com pletely without jurisdiction and against the plain terms 0sec
172 of the Act
133G 134A Yoginder Tiwari vs District Judge Gorakhpur and Ors  Babu Singh Chau han vs Rajkumar Jain  Ors   relied upon