HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting). (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 203 (M/S) of 2002 Basant Lal Sah S/o Late R. L. Sah And another. Vs. Addl. District Magistrate Nainital And others. Approved for reporting. ___________________ Not approved for reporting Date of decision 07.02.2006. Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 203(MS) OF 2002 1. Shri Basant Lal Sah, S/o late R.L. Sah, R/o Ajanta Hotel, Mallital, Nainital. 2. Sri Digmbar Singh Bhakuni, S/o late Mohan Singh Bhakuni, Stenographer District Consumer Forum, Nainital, R/o Richmond House No. 40/4 Cantonment, Tallital, Nainital. ………Petitioners. Versus 1. Addl. District Magistrate (Acting as District Magistrate under U.P. Act No. 13/72), Nainital. 2. District Judge, Nainital. 3. Divisional Engineer (Phones), Bharat Sanchar Nigam, Nainital. ..……..Respondents. Dated: 07.02.2006 Hon’ble Rajesh Tandon, J. Head Sri Gurdayal Singh and Siddhartha Sah, learned counsel for the petitioners and Standing Counsel for the respondents no. 1 and 2 and Smt. Anjali Bhargawa for the respondent no. 3. By the present writ petition, the petitioners have prayed for a writ of certiorari quashing the orders dated 12.04.2002/15.04.2002 and 29.04.2002 passed by the respondents nos. 1 and 2 respectively. Brief facts giving rise to the present writ petition are that house no. 40/02 (called Richmond House) situated at Cantonment Nainital is the property involved in its release/allotment under the provisions of Section 16 of U.P. Act Urban Bildings (Regulation of Letting Rent & Eviction) Act, 1972 is applicable in the cantonment area vide Appendix II of the Act. The petitioner no. 1 is the landlord and the petitioner no. 2 is in occupation of the premises being the nominee of the landlord and has applied for allotment of the same in his favour. The first petitioner has filed the release application under Section 16 of U.P. Act No. 13 of 1972 on the ground that the premises was declared vacant on 19th January, 2001 and the application was filed on the ground that the premises is required for his use and occupation. The respondent no. 3 has also applied for allotment of the said premises. On the filing of the aforesaid applications for release/allotment, a report was submitted on 29.12.2000 by the Rent Control Inspector and on 4th January, 2001 in pursuance of the report of the inspector vacancy in respect of the premises was declared. After the declaration of the vacancy, the proceedings for release/allotment were started and approximately 13 applications were received for allotment. The application for allotment filed by the petitioner no. 2 was for residential requirement. The respondent no. 3 required the premises for opening the office of Amar Ujala. However, the Rent Control and Eviction Officer on 12.04.2002 allotted the premises to the respondent no.3. The Rent Control and Eviction Officer has observed that the requirement of Regional Engineer, Phones, Nainital under Section 16 of U.P. Act No. 13 of 1972 read with Rule 11 of the Rules framed under U.P. Act No. 13 of 1972 is bonafide. As will appear from the record, the petitioner no. 1 has nominated the petitioner no. 2 for allotment of the premises in January, 2001. The petitioner has preferred a revision before the District Judge. The District Judge has confirmed the order passed by the Rent Control and Eviction Officer allotting the premises to the respondent no. 3. Feeling aggrieved by the said order, the petitioners have come up in the present writ petition. From the pleadings of both the parties following points require consideration in the present writ petition:- I) Whether the need of the landlord/petitioner no. 1 is bonafide and genuing ? II) Whether the premises being residential and therefore, the allotment in favour of the respondent no. 3 being for non-residential purpose can be maintained ? III) Whether the nomination made by the landlord under Section 17(1) of he Act being mandatory and the findings of the two courts below by ignoring the sameare liable to be vitiated by an error of law ? IV) Whether, there has been a manifest error of law in order to invoke the provisions of Article 226/227 of the Constitution of India ? Point No. 1 with regard to Bonafied Need of the Landlord So far as the findings on the bonafide need of the petitioner no. 1 is concerned, the premises is in occupation of the petitioner no.2 and therefore, there is no occasion to treat the requirement of the petitioner no.1 as bonafide. The respondent no. 3 has also admitted this fact as will appear from paragraph 30 of the counter affidavit filed by the respondent no.3 that the petitioner no. 2 is in occupation of the premises in dispute being the nominee for allotment of the premises in dispute. So far as bonafide need of the landlord/petitioner no.1 is concerned, two courts below have recorded a finding against the petitioner no. 1 by holding that the need of the petitioner no. 1 is not bonafide, I find no error of law in recording the said finding and the same is a finding of fact. Therefore, I find that there is no occasion to interfere with the findings of fact recorded by the two courts below under Article 226/227 of the Constitution of India so far as need of the petitioner no. 1 is concerned. Point No.2 So far as the second point regarding the allotment in favour of the respondent no. 3 is concerned, the premises being owned by the petitioner no. 1, nomination having been made in favour of the petitioner no. 2 under Section 17(1) of the U.P. Act No. 13 of 1972, there is no occasion to deviate from the nomination of the landlord. Counsel for the petitioners has pointed out that the premises is a residential one and as such the allotment in favour of the respondent no. 3 for non- residential purposes is vitiated by an error of law. A perusal of the counter affidavit shows that the portion sought to be allotted, is residential one and has been in the use of the judicial officers. From paragraph 5 of the counter affidavit filed by the respondent no. 3, it is evident that the building in dispute i.e. half western portion of the building Richmond House, situated at Cantonment, Tallital, Nainital) was being used for residential purpose by the Judicial Officers of Nainital from last several years and the same was declared vacant after having been vacated by Sri U.S. Pangtey and thereafter, the same was allotted to one Sri Manvendra Singh, the tem Addl. Civil Judge (S.D.), Nainital but on 27th April, 2000, he having informed the respondent no. 1 that the house is in dilapidated condition and requires at least Rs. Twenty Thousand to Twenty Five Thosand for repair. Sri Manvendra Singh having informed that the key has been given to the Central Nazir, District Judge, Nainital. So far as the applicability of Rule 11 is concerned, the order of priorities has been provided in the allotment of the residential building. Rule 11 reads as under:- “11. Order of priorities in allotment of residential buildings [Section 16 and 34(8)]. - (1) In making allotment of residential building, the following order or priorities shall be observed: firstly, for public purposes : secondly, for accommodating a person against whom an order has been passed for eviction under Section 21, not being a tenant referred to in Explanation (1) to Section 21(1), or a decree has been passed in a suit filed with the permission of the District Magistrate under Section 3 of the old Act (or such suit or application is pending) and who or members of whose family do not own or hold as tenants any other residential building in the same city municipality, town area or notified area; thirdly, for accommodating others ; and in each of the above categories subject to the provisions of sub-rule (2), the principle “first come, first served” shall be followed. (2) Amongst the priority categories mentioned above, the following principles shall ordinarily be followed, subject to the provisions of sub-rule (3): (a) A building vacated by a Government servant shall, as far as possible, be given to his successor-in- office, if any, or to any other government servants belonging to the same department : (b) Subject to clause (a) and sub-rule (3), among Government servants, the relative length of stay in station, without suitable accommodation, shall be taken into consideration. (c) In the case of requirement of accommodation for State Government officers belonging to the same department, the priority shall be determined by the head of that department of the principal head of that office, as the case may be. [(4) Notwithstanding anything in sub-rules (1), (2) and (3) the District Magistrate may, for adequate and exceptional reasons to be recorded in writing, depart from principle “first come, first served”, and make allotment of any building out of turn to any person.] (5) Subject to the foregoing sub-rule, it should be ensured that no person shall be allotted a building which carries so little rent that he is able to get a residence on payment of rent which is less than 10 percent of his salary or other income, after taking into consideration, the house rent allowance allowed by his employer. At the same time where more than one building is available for allotment among two persons belonging to the same priority category the building carrying higher rent should be allotted to the person getting higher salary or other income and the building carrying less rent should be allotted to the person getting less salary or other income.” As will appear from Rule 11 that in making the allotment of a residential building the priorities have to be followed only in case of residential building. In D.F. Gandhi and another Vs. Rent Control and Eviction officer, Ist, District Allahabad and others ARC 1997 (2) 501, it has been held as under:- “Sub Section (1) of Section 17 applies both where a tenant has ceased to occupy or expected to vacate. A perusal of Rule 9 would also lead to same conclusion inasmuch as sub-clause (f) of sub-rule (1) requires mentioning of the actual or expected date of vacancy. If Section 15(1) was not applicable in cases of expected vacancy, clause (f) of Rule 9 would not contain the words “expected date of vacancy”. Therefore, there can be no doubt that Section 15 (1) is applicable not only to the actual vacancy but also to cases where the building is likely to fall vacant on account of cessation of occupation by the sitting tenancy.” Rule 11 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 has also been dealt with in Dinesh Kumar v. Second Addl. District Judge, Aligarh [1998 (U.P.) RCC 103]. Relevant paragraph 8 of the said judgment is quoted below:- “8. A bare look of the above provisions would show that priorities enumerated in Rule 11 are to be applied to only when the question of allotment of a residential building is to be considered and no priority is laid down for the purposes of making order of allotment for non- residential buildings. The revisional court thus committed a manifest error of law in upholding the order of allotment by applying Rule 11 of the Act.” Therefore, point no. 2 is decided in favour of the petitioners. The premises in dispute was available only for residential purposes and not for non-residential purposes and as such the allotment in favour of the respondent no. 3 cannot be allowed to stand. The orders passed by the courts below are therefore set-aside to that extent. Point No. 3 A perusal of the record shows that on 25th July, 2000, the vacancy was intimated by sending a letter by Sri Manvendra Singh. On his application, the report was submitted by the Rent Control and Eviction Officer on 29th December, 2000. After considering the report, the vacancy was notified on 4th January, 2001 under Section 12 of the U.P. Act No. 13 of 1972. On 23rd January, 2001, the application for release was moved by the petitioner no. 1. Rule 10 is a procedure for allotment under Section 16(1)(a) of the U.P. Act NO. 13 of 1972. Rule 10 of the U.P. Act No. 13 of 1972 relates to the allotment procedure and Rule 11 of the U.P. Act No. 13 of 1972 deals with the question of merit amongst allotment. Rules 10 and 11 are quoted below:- “10. Allotment procedure [Sections 16(1)(a) and 34(8)].-(1) (a) An application for allotment of a building shall be made in Form A. (b) The District Magistrate shall maintain a register of application for allotment of buildings. (c) The applications shall be classified according to the priority categories specified in Rule 11 and shall be registered in order of receipt of applications. (d) For each priority category, there shall be a separate register and the applicant shall be given a serial number showing the number and date of his registration and the priority category in which he has been registered. (e) Each such register shall be open to inspection by any member of the public on application being made in that behalf. (2) In the case of requirements for Government office and accommodation for Government servant while posted in that local area, a request by the Head of Department or Principal Head of Office shall be sufficient and his letter shall be treated as a substitute for the application and shall be entered as such. (3) A tenant against whom a suit for eviction filed with the permission of the District Magistrate under Section 3 of the old Act or an application under Section 21 is pending may immediately apply for allotment of alternative accommodation and need not wait till the decision of that suit or application. Such application shall be without prejudice to the result of the said proceedings. (4) The register shall be prepared afresh for every calendar year and applicants who are unable to secure allotment by the end of a year and whose applications were not rejected as not maintainable may apply by the 15th January of the succeeded year for renewal of registration of their applications and shall thereupon retain their original relative priority in comparison to other applicants and the names of persons whose applications are so renewed shall stand above the names of new applicants in that year. [(5) A building shall not ordinarily be allotted to the following persons or for the following purposes- (a) A tenant against whom a decree or order has been passed for ejectment on any ground mentioned in clauses (a) to (f) of sub-section (I) of Section 3 or under Section 7-B of the old Act or on any ground mentioned in clauses (a) to (f) of sub-section (2) of Section 20 during a period of two years from the date of such decree or order or any ember of his family or any person of whose family he is a member; (b) For residential accommodation of employees of business concerns who are allowed by their employers full re-imbursement of house rent paid by them; (C) For residential accommodation of a person already occupying a building governed by the Act or any public premises other than any premises granted to him free of rent in connection with the discharge of any duties of public nature and situated anywhere in the State or any member of the family of such person or any person of whose family he is a member, except where such person will vacate the other building or public premises at the time of allotment; (d) For accommodating a person who has entered into unauthorized occup0ation of the building or any part thereof without the written consent to the landlord.] (6) A person who is deemed to have ceased to occupy a building within the meaning of Section 12(1)(b), or who is evicted under Section 21 by virtue of being a tenant referred to in Explanation (1) of Section 21(1) shall not be allotted that or any other residential building and a person who is deemed to have ceased to occupy a building within the meaning of Section 12(2), shall not be allotted that or any other non-residential building for a period of two years from the date of such eviction or deemed cessation, as the case may be: Provided that- (a) if the District Magistrate is satisfied in a case referred to in Section 12 (2) that the admission of partner or new partner is bona fide transaction and not a mere cover for sub-letting, he shall, if any application had been made in that behalf before the admission of such partner or new partner, allot the non-residential building in question afresh to the newly constituted or re- constituted firm; (b) in the case of a residential building under the tenancy of a person who shall be deemed by virtue of Section 12(3) to have ceased to occupy it by reason of his or any member of his family building or otherwise acquiring in a vacant state or getting vacated another residential building in the same local area, whether that other building is built or acquired or got vacated before or after the date of commencement of the Act, if the District Magistrate is satisfied that the two buildings are occupied by the tenant and a member of his family separately, and that they are separate in messing, the District Magistrate may reallot the residential building deemed to be vacant under Section 12(4) to the said tenant or to the said member of his family, as the case may be; (c) in the case of a residential building under the tenancy of a person who shall be deemed by virtue of the proviso to section 12(3) to have ceased to occupy it upon the expiration of a period of one year from the date of commencement o;f; the Act by reason of his or any member of his family having built another residential building in the same local area, where that other building was let out at the commencement of the Act and the tenant or the member of his family, as the case may be, has been unsuccessful in spite of his best efforts in securing vacant possession thereof the District Magistrate may postpone the making of allotment order in respect of the building deemed to be vacant under Section 12(4). (7) The power of the District Magistrate under Section 17(1) to disregard the nomination by the landlord in the event of the District Magistrates’ failure to make the allotment order within twenty-one days from the date of receipt of intimation of vacancy or expected vacancy of a building shall be exercised very sparingly and only when for a public purpose of an urgent nature, the District Magistrate considers it necessary so to do. Section 17 provides the requirement of nomination by the landlord. Section 17(1) reads as under:- “17. Conditions of making allotment order. –(1) Where the District Magistrate receives an intimation, under sub- section (1) of Section 15, of the vacancy or expected vacancy of building any allotment order in respect of that building shall be made and communicated to the landlord within twenty-one days from the date of receipt of such intimation, and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choice, and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination : provided that where the landlord has made an application under clause (b) of sub-section (1) of Section 16, for the release of the whole or any part of the building or land appurtenant thereto in his favour, the said period of twenty- one days shall be computed from the date of decision on that application or where an application for review or an appeal is filed against such decision, from the date of decision on such application or appeal.” Section 17 provides that where the District Magistrate receives an intimation under Sub-section (1) of Section 15 of the vacancy or expected vacancy of the building, the allotment order in respect of that building shall be made and communicated to the landlord within 21 days from the date of such intimation and where no such order is made or communicated, the landlord may intimate to the District Magistrate the name of person of his choice and the District Magistrate shall allot the building in favour of the persons so nominated. Sub Clause (7) of Rule 10 also contains the similar provision and the District Magistrate can not go beyond the nomination if the allotment order is not made within 21 days from the date of receipt of intimation of vacancy or expected vacancy of the building. A perusal of the order shows that it has been issued on 15th April, 2002 when in point of fact the nomination was made on 23rd January, 2001 and the intimation of vacancy has been made on 25th July, 2000. The nomination having been made after 21 days as contained under Section 17(1) of the Act read with Sub Clause (7) of Rule 10 of the Rules framed under the Act, the District Magistrate is left with no option except to allot the premises to the nominee of the landlord. More so when the premises was not available for non- residential purposes, there was no option for the District Magistrate except to allot the premises in favour of the petitioner no. 2, who is the nominee of the landlord. In Mandir Ram Janki, Gulraghat Jaunpur v. Narendra Kumar another 1985 (1) ARC 241, it has been held as under:- “4. Section 17 of the Act provides that where the District Magistrate receives an intimation under Sub- section (1) of Section 15 of the vacancy or expected vacancy of a building and allotment order in respect of that building shall be made and communicated to the landlord within twenty-one days fro the date of receipt of such intimation, and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choice and there upon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reasons to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination. A bare reading of this provision indicates that the terms of the provision tha the order of allotment shall be passed by the authority concerned within 21 days are mandatory. No exception has been provided by the legislature. This is evident from the fact that immediately after the expiry of 21 days a right accrues in favour of the landlord to nominate his tenant and the legislative scheme appears to be that in the normal course the nominee of the landlord should be allotted the accommodation. At his stage, the contents of Rule 10(7) of the Rules may be considered. This rule provides that the discretion of the District Magistrate under Section 17(1) to disregard the nominee of the landlord, in the event of District Magistrate’s failure in making an allotment order within 21 days from the date of the receipt of the communication of the vacancy or expected vacancy of the accommodation, shall be exercised very sparingly and only for a public purpose. 5. Let us now advert to the order of allotment passed in this case. No reason whatsoever has been assigned in the order of allotment. In it, there