Full Judgment Text
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PETITIONER:
TIRLOK SINGH & CO.
Vs.
RESPONDENT:
DISTRICT MAGISTRATE, LUCKNOW & ORS.
DATE OF JUDGMENT29/03/1976
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
KRISHNAIYER, V.R.
CITATION:
1976 AIR 1988 1976 SCR (3) 942
1976 SCC (3) 726
CITATOR INFO :
RF 1985 SC1635 (1,6,9,10)
ACT:
Right to be heard-Lawful occupant of a building has no
right to be heard at the stage of "notifying the vacancy" by
the District Magistrate before passing on order of allotment
or release-U.P. Urban Buildings (Regulation of Letting Rent
and Eviction) Act, 13, 1972, S. 16 read with Rule 8 of U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction)
Rules 1972-Scope of.
HEADNOTE:
Under section 12 of the U.P. Rent Act both the landlord
and the tenant are required to intimate a vacancy to the
District Magistrate, as and when a vacancy is deemed to have
occurred in the circumstances specified therein. On the
intimation of a vacancy, the District Magistrate may under
section 16 pass either an order allotting the premises to a
person specified by him or he can release the vacancy in
favour of the landlord on being satisfied that he requires
the premises for the purposes mentioned in section 16(2).
Such an order can however be passed only after
"ascertainment of vacancy" under Rule 8 of U.P. Rent Rules
1972, through the Rent Inspector and after "notifying the
vacancy" by display on the notice board of the District
Magistrate for a period of three days from the date of such
notification.
For the purposes of disposal of an application made by
respondents 2 and 3 u/s 16(1) (b) of the Act for the
"release" of certain residential premises of which the
appellants claim to be their tenants, the District
Magistrate passed an order on May 20th 1974 viz. "Let the
vacancy be notified" admittedly without granting any hearing
to the appellants, which the appellants challenged as
violative of the principle of "Audi Alteram Partem" in the
Allahabad High Court. The High Court, though it granted an
interim stay, after show cause notice rejected the Writ
Petition summarily with a brief speaking order on the ground
that the petition was premature and that the proper remedy
lay to them u/s 16(5) (a) of the Act for review of the order
directing that the vacancy be notified. Aggrieved by the
said order the appellants filed a petition for special leave
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in this Court. During its pendency, the respondent No. 1
issued a notice to the appellants that the release
application filed by respondents 2 and 3 would be taken up
for hearing on May 19th 1975 and on May 20th 1975 passed an
order of release, after refusing to stay further
proceedings. On May 30th 1975, the appellants filed an
appeal against the release order to the District Judge
Lucknow, who has stayed further proceedings and the appeal
is pending. The question is whether the order dated May 20th
1974 was illegal for the reason that it was passed without
affording a hearing to the appellants.
Dismissing the appeals the Court,
^
HELD : (1) A Study of the scheme of the Act and its
provisions show the untenability of the contention as
regards the illegality of the order passed by respondent No.
1. [945A]
(ii) The Act does not provide for a hearing at the
stage when the Distric Magistrate passes an order of
allotment or release. [945-C]
(iii) An order passed under rule 8(2) of the U.P. Rent
Rules for "ascertainment of vacancy" is what is meant by
"notifying the vacancy". The District Magistrate need not
hear the parties before notifying the vacancy because under
the scheme of the U.P. Rent Act an order notifying the
vacancy does no injury and causes no prejudice to the
interests of any party. A notification of the vacancy is a
step-in-aid of an order of allotment or release and it is
only when such an order of allotment or release is passed
that the landlord or the tenant as the case may be have a
grievance. Orders of allotment and release are in the first
instance reviewable u/s 16(5)(a) by the District
943
Magistrate himself and an order passed u/s 16 is appealable
u/s 18. The Act thus contemplates successive opportunities
being afforded to persons whose interests are likely to be
affected by an order passed by the District Magistrate.
[945F-G, 946A, C]
(iv) In the instant case, the Writ Petition was
premature in the sense that the order impugned thereby did
not affect the apellants’ interest in the particular
premises. The appellants have since filed an appeal against
the order of release to the District Judge and that appeal
is pending. That is the proper forum for adjudicating on the
rival claims. [946E]
JUDGMENT:
CIVIL APPELLLATE JURISDICTION : Civil Appeal No. 1093
of 1975.
Appeal by Special Leave from the Judgment and order
dated 7th August 1974 of the Allahabad High Court (Lucknow
Bench) in Writ Petition No. 673/74.
S. C. Malik, S. K. Mehta, K. R. Nagaraja and P. N. Puri
for the Appellant.
S. T. Desai and M. L. Verma for Respondents 2 and 3.
The Judgment of the Court was delivered by
CHANDRACHUD, J. This appeal by special leave raises a
short, though important question under the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 13
of 1972.
Respondents 2 and 3 filed an application under section
16(1)(b) of the Act for the ‘release’ of certain residential
premises of which the appellants claim to be their tenants.
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Respondent 1, acting as a Rent Controller, directed a Senior
Inspector to inspect the premises and make a report.
Accordingly, the Senior Inspector inspected the premises and
submitted a report on April 9, 1974 stating : "After hearing
the parties it would be proper to take further action". The
Senior Inspector seems to have found that the premises were
in occupation of 3 persons two of whom claimed to be
partners of the appellant-firm M/s. Tirlok Singh & Co. On
receipt of the report respondent 1 passed the impugned
order, "Let the vacancy be notified", admittedly without
granting any bearing to the appellants.
On May 23, 1974 the appellants filed a writ petition in
the High Court of Allahabad challenging the aforesaid order
on the ground that it was passed in violation of the
principles of natural justice. Pending admission of the writ
petition the High Court stayed further proceedings
consequent on the order. On August 7, 1974, a Division Bench
of the High Court rejected the writ petition summarily, with
a brief speaking order. It felt that the writ petition was
premature and that the proper remedy for the appellants was
to approach respondent 1 under section 16(5)(a) of the Act
for review of the order directing that the vacancy be
notified.
In April, 1975 the appellants filed a petition for
special leave in this Court against the order of the High
Court but during the pendency of that petition, respondent 1
issued a notice to the appellants stating that the release
application filed by respondents 2 and 3 would be taken up
for hearing on May 19. On May 21, 1975 respondent 1 passed a
release
944
order and, though moved in that behalf by the appellants,
refused to stay further proceedings. On May 30, 1975 the
appellants filed an appeal against the release order to the
District Judge, Lucknow who has stayed further proceedings.
That appeal is pending.
The narrow question for determination is whether the
order passed by respondent 1 on May 20, 1974 directing that
the vacancy be notified is illegal for the reason that it
was passed without affording a hearing to the appellants.
This question incidentally involves an inquiry into the
correctness of the view expressed by the High Court that the
writ petition filed by the appellants was premature.
It is necessary for a proper appreciation of the
controversy involved in this appeal to understand the scheme
of the U.P. Rent Act, 13 of 1972. Chapter III entitled
"Regulation of Letting" provides by section 12(1) that a
landlord or tenant of a building shall be deemed to have
ceased to occupy the building or a part thereof if (a) he
has substantially removed his effects therefrom, or (b) he
has allowed it to be occupied by any person who is not a
member of his family, or (c) in the case of a residential
building, he as well as members of his family have taken up
residence not being temporary residence, elsewhere. By
sction 12(4), any building or part of a building which a
landlord or a tenant has ceased to occupy shall be deemed to
be vacant. By section 13, where a landlord or a tenant
ceases to occupy a building no person can occupy it
otherwise than under an order of allotment or release passed
under section 16. Section 15 imposes an obligation on every
landlord to give notice of the vacancy to the District
Magistrate whenever a building falls vacant.
Section 16 which deals with allotment and release of
vacant buildings provides by sub-section (1)(a) that the
District Magistrate may by order require the landlord to let
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any vacant building to any person specified in the order, to
be called an allotment order. Section 16(1) (b) empowers the
District Magistrate to pass a release order directing that
the whole or any part of such building may be released in
favour of the landlord. By reason of section 16(2), no
release order can be passed under section 16(1)(b) unless
the District Magistrate is satisfied that the building is
required by the landlord bona fide for occupation by himself
or any member of his family or for any of the purposes
specified in the sub-section. By section 16(5)(a), where the
landlord or any other person claiming to be a lawful
occupant of the building comprised in the order of allotment
or release satisfies the District Magistrate that such an
order was not made in accordance with clause (a) or clause
(b) of section 16(1), the District Magistrate may review the
order. If the District Magistrate on review sets aside or
modifies the order of allotment or release, he is empowered
under section 16(5)(b) to put the applicant, if already
evicted, back into possession. Section 18 which provides for
an appeal against an order of allotment or release says that
any person aggrieved by an order of allotment or release
passed under section 16 may prefer an appeal to the District
Judge. If the order of allotment or release is varied or
rescinded by the District Judge, the District Magistrate
under section 18(2) has the power to place the
945
parties back in the position which they would have occupied
but for such order.
A study of these provisions shows the untenability of
the appellant’s contention as regards the illegality of the
order passed by respondent. 1. Chapter III of the U.P. Rent
Act casts an obligation both on the landlord and the tenant
to intimate a vacancy to the District Magistrate. A vacancy
is to be deemed to have occurred in the circumstances
specified in section 12. On the intimation of a vacancy or
otherwise, the District Magistrate may under section 16 pass
either an order allotting the premises to a person specified
by him or he can release the vacancy in favour of the
landlord on being satisfied that he requires the premises
for the purposes mentioned in section 16(2). The Act does
not provide for a hearing at the stage when the District
Magistrate passes an order of allotment or release. But any
person aggrieved by such an order is entitled under section
16(5)(a) to ask the District Magistrate to review his order.
If, in the meanwhile, any person in possession of the
premises has been evicted the District Magistrate has the
power, if he sets aside or modifies the order of allotment
or release, to put the applicant back in possession.
Further, an order passed under section 16 is appealable
under section 18 which means that a person aggrieved by an
order of allotment or release has at aleast a two-fold
opportunity to challenge an order affecting his interest.
The order dated May 20, 1974 passed by respondent 1 to
the effect "Let the vacancy be notified" is not by itself
and without more calculated to injure or effect the
appellant’s interest. As a sequel to that order and after
the High Court rejected the appellants’ writ petition,
respondent 1 served a notice on the appellants stating that
the proceeding would be taken up for hearing on May 19,
1975. The release order was eventually passed on May 21
after hearing the appellants and they have filed an appeal
against that order before the District Judge who is entitled
to examine the legality and propriety of the order.
Thus, in the first place, it was unnecessary for
respondent 1 to hear the appellants before notifying the
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vacancy because under the scheme of the U.P. Rent Act, an
order notifying the vacancy does no injury and causes no
prejudice to the interests of any party. A notification of
the vacancy is a step-in-aid of an order of allotment or
release and it is only when such an order of allotment or
release is passed that the landlord or the tenant, as the
case may be, can have a grievance. Orders of allotment and
release are, in the first instance, reviewable by the
District Magistrate himself and an order passed by the
District Magistrate under section 16 is appealable under
section 18.
A reference to the Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction) Rules, 1972 would
be relevant and useful in this behalf. Rule 8(1) called
"Ascertainment of Vacancy" enjoins the District Magistrate,
before making an order of allotment or release in respect of
any building which is alleged to be vacant, to obtain a
report from the Rent Control Inspector. Under rule 8(2), the
Inspector is required to inspect the building as far as
possible in the presence
946
of the parties and submit the report to the District
Magistrate after eliciting the necessary facts. Rule 8(2)
requires that the conclusion contained in the Inspector’s
report must be posted on the Notice Board of the District
Magistrate’s office for the information of the general
public. This is what is meant by "notifying the vacancy" and
this explains the order passed by the District Magistrate :
"Let the vacancy be notified". The existence of the vacancy,
by being displayed on the District Magistrate’s notice
board, is notified to the general public in order that
persons interested in the allotment of the vacancy may apply
to the District Magistrate in that behalf. Under Rule 8(2),
an order of allotment can be passed not before the
expiration of 3 days from the date on which the vacancy is
notified and if in the meantime any objection is received,
not before the disposal of such objection. Under rule 8(3),
all objection to the notification of the vacancy has to be
decided after considering any evidence that the objector or
any other person may adduce.
The Act thus contemplates successive opportunities
being afforded to persons whose interests are likely to be
affected by any order passed by the District Magistrate.
Putting it briefly, an order notifying the vacancy can be
objected to and the objection has to be decided after
considering the evidence that the objector or any other
person concerned may adduce. Secondly, if an order of
allotment or release is passed under section 16, following
upon the notification of a vacancy, the aggrieved person can
file a review application. Thirdly, as against an order
passed under section 16, there is a right of appeal under
section 18.
The High Court was therefore right in expressing the
view that the appellants’ writ petition was premature. The
writ petition was premature in the sense that the order
impugned thereby did not affect the appellants’ interest in
the particular premises. The appellants have since filed an
appeal against the order of release to the District Judge
and that appeal is pending. That is the proper forum for
adjudicating on the rival claims of the appellants on one
hand and respondents 2 and 3 on the other.
The appeal is accordingly dismissed with costs.
S.R. Appeal dismissed.
947
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