Full Judgment Text
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PETITIONER:
GANPAT ROY AND OTHERS ETC.
Vs.
RESPONDENT:
THE ADDITIONAL DISTRICT MAGISTRATE AND OTHERS ETC.
DATE OF JUDGMENT19/03/1985
BENCH:
MADON, D.P.
BENCH:
MADON, D.P.
TULZAPURKAR, V.D.
ERADI, V. BALAKRISHNA (J)
CITATION:
1985 AIR 1635 1985 SCR (3) 384
1985 SCC (2) 307 1985 SCALE (1)545
ACT:
Rent Control and Eviction-
U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act 1972, Sections 12(2) and (4), 16, 18, 34(8)
and U P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Rules 1972, Rules 8, 12 and 19-Deemed vacancy-
Notification of deemed vacancy- Opportunity of hearing as
provided in Rules, must be afforded to the tenant before
notifying the vacancy- Statute providing no efficacious
relief to tenant of premises in whose case it is found that
there is a deemed vacancy-Whether a writ under Articles 226
and 227 by such tenant is maintainable.
HEADNOTE:
Under Section 12(2) of the Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 (for short, the Act), a tenant of a non-residential
building carrying on business in the said building is deemed
to have ceased to occupy the premises on his admitting as a
partner or a new partner a person who was not a member of
his family. The definition of "family" given in clause (g)
of Section 3 of the Act does not expressly include a son-in
law or a daughter-in law.
In each of the two appeals, the appellant/tenant
admitted into his partnership firm his son-in-law and ’or
daughter-in-law, as the case may be. There upon, the
landlord respondent in each appeal filed an application for
release of his non-residential building in his favour on the
ground that there was a deemed vacancy under Section 12(2)
of the Act. The Rent controller held that there were deemed
vacancies in respect of the two premises and ordered such
deemed vacancies to be notified. The appellants/tenants
filed applications to set aside the said orders directing
notification of deemed vacancy and for permission to urge
their objections and to contest the said applications for
release. The Rent Controller negatived the contentions of
the appellants and ordered such vacancies to be notified.
The appellants/tenants filed writ petitions in the High
Court under Article 226 of the Constitution challenging the
two orders notifying deemed vacancies under sub-Section (2)
of Section 12 of the Act. The High Court, relying upon a
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judgment of a two-Judge Bench of the Supreme
385
Court in Trilok Singh & Co. v. District Magistrate, Lucknow,
JUDGMENT:
the amendment of the Act by Uttar Pradesh Urban Buildings
(regulation of Letting, Rent and Eviction) Amendment Act
1976 (for short, the 1976 Amendment Act), dismissed both the
petitions as pre-mature holding that where a release of a
building is sought, the matter lies only between the
District Magistrate and the landlord and no other person has
a right to object to the release of the premises to the
landlord. Hence these appeals.
Allowing the appeals and directing the High Court to
‘rehear on merits the writ petitions filed by the
appellants. the Court.
^
HELD: 1(i) Under the proviso to Section 16(1), in the
case of a vacancy referred to in Section 12(4), the District
Magistrate is to give an opportunity to the landlord or the
tenant, as the case may be, of showing that the said Section
is not attracted to his case before making an order under
clause (a) of Section 16(1), that is, before making an
allotment order; This proviso was inserted by the 1976
amendment Act. Strangely enough, in the case of release of
the premises to the landlord, the proviso does not require
any such opportunity to be given to the tenant who would be
the person affected by that order. Sub-section (2) of
Section 16 sets out the circumstances in which a building or
any part thereof may be released to the landlord. Under Sub-
section (7) every order made under that Section, subject to
any order made under Section 18, is to be final. Under
Section 18 as substituted by the 1976 Amendment Act, no
appeal lies against any order of allotment, re-allotment or
release but any person aggrieved by a final order of
allotment, re-allotment or release may, within fifteen days
from the date of such order, prefer a revision to the
District Judge. On such application being made, the revising
authority may confirm or rescind the final order of
allotment, re-allotment or release or may remand the case to
the District Magistrate for rehearing and, pending revision,
may stay the operation of such order on such terms as he
thinks lit Prior to the substitution of Section 18 by the
1976 Amendment Act, that Section provided for an appeal to
the District Judge by a person aggrieved by an order of
allotment, re-allotment or release and where such order was
varied or rescinded in appeal, the District Magistrate had
the power, on p an application made to him in that behalf,
to place the parties back in the position which they would
have occupied but for such order or such part thereof as was
varied or rescinded and to use or cause to be used for that
purpose such force as may be necessary. [393H; 394A-B; H;
395A; D-P]
1(ii). The Uttar Pradesh Urban Buildings. (Regulation
of Letting, Rent and Eviction) Rules, 1972, prescribe the
procedure for ascertainment of vacancy and for allotment or
release of premises. Under Rule 8, before he makes any order
of allotment or release in respect of any building which is
alleged to be vacant under S.12 or to be otherwise vacant or
to be likely to fall vacant, the District Magistrate is
required to get the building inspected. The facts mentioned
in the inspection report are, wherever practicable, to be
elicited from at least two respectable persons in the
locality and the conclusion of the inspection report is to
be posted on the notice board of the office of the District
Magistrate for the information of the general public, and an
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order of allotment is not to
386
be passed before the expiration of three days from the date
of such posting, and if in the meantime any objection is
received, not before the disposal of suck objection. Any
objection received is to be decided after consideration of
any evidence which the objector or any other person
concerned may adduce
[396A-D]
2(i) The position under the Act as amended in 1976 is
greatly changed and the right of appeal which was granted by
S.18 has been substituted by a right of revision on the
grounds set out in the substituted Section 18 and which are
the same as those on which a revision lies to the High Court
under Section 115 of the Code of Civil Procedure, 1908.
While in an appeal, findings of fact can also be challenged
on the ground that the evidence was not properly
appreciated, in revision the only question would be whether
the District Magistrate had exercised a jurisdiction not
vested in him by law or had failed to exercise a
jurisdiction vested in him by law or had acted in the
exercise of his jurisdiction illegally or with material
irregularity. The scope of revision under Section 18-is.
therefore. much narrower than in the case of an appeal
[400E-F]
2(ii). Under the proviso to Section 16(1), which was
inserted by the 1976 Amendment Act, the District Magistrate
is required in the case of a vacancy- referred to in sub-
Section (4) which includes a deemed vacancy under Section
12(2) to give an opportunity to the landlord or the tenant,
as the case may be, of showing that Section 12(4) is not
attracted to his case before he makes an order of allotment
under clause (a) of Section 16(1). Thus, this proviso gives
a right of hearing to the tenant before an order of
allotment is made. The proviso, however, does not apply in
the case of an order of release made under clause (b) of
Section 16(1). Even in the case of an application for
allotment, it is doubtful whether a tenant whose objections
to notification of a deemed vacancy have been negatived and
thereafter the vacancy has been ordered to be notified could
be permitted to reagitate the same contentions because such
contentions would be barred by principles analogous to res
judicata. In such an event, it would be difficult to say
that he can exercise his right of review on the ground that
there was no p vacancy. This would apply equally where an
order of release is made. Further, the revision which is
provided for under Section 18 is against an order of
allotment or release and not against a notification of
vacancy and an issue, which was concluded earlier and on the
basis of the finding on which the District Magistrate had
proceeded to allot or release the premises, cannot be
reagitated in revision. Thus, the scheme of the Act would
show that a tenant of premises in whose case it is found
that there is a deemed vacancy has no efficacious or
adequate remedy under the Act to challenge that finding.A
petition under article 226 or 227 of the constitution of
India filed by such a tenant in order to challenge that
finding cannot, therefore, be said to be pre-mature.
Therefore, the appeals are allowed and the writ petitions of
the appellants will have to be heard by the High Court on
merits. Since the appellants have applied for amendment of
their respective writ petitions and the Court feels that the
amendments sought to be made are of such a nature that they
require to be considered and dealt with by the High Court,
the same are allowed. [400G-H; 401A-D; F-H]
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387
3(i). It is difficult to reconcile to the decision in
Trilok Singh & Co,’s case. The Court’s attention was not
drawn in that case to Rule 8 of the said Rules. Rule 8 to
which the court has adverted earlier is the one as
substituted by Notification No. 1995/XXIX-E-55-(A)-75 dated
May 25, 1977. The original rule, however, was to the same
effect and under it also the conclusion reached by the Rent
Control Inspector contained in his report of the inspection
of the building was required to be posted on the notice
board of the office of the District Magistrate for the
information of the general public, and the order of
allotment could not be passed before the expiration of three
days from the date of such posting and, if in the meantime
any objection was received, not before the disposal of such
objection. The District Magistrate was, therefore, not
justified in immediately directing the vacancy to be
notified and this act on his part was a clear violation of
the statutory requirements of Rule 8 and had the result of
depriving the appellant firm of an opportunity of hearing
which Rule 8 conferred upon it. On this ground alone the
appellant firm should have succeeded. The observation of
this Court in Trilok Singh & Co.s Case that it was
unnecessary for the District Magistrate to hear the
appellants before notifying the vacancy does not, therefore,
appear to be correct. It equally does not, appear to be
correct to hold that an order notifying the vacancy did not
injury and caused no prejudice to the interests of any party
because an order notifying the vacancy could be objected to
and if any objections were filed, they would have to be
decided after considering the evidence that the objector or
any other person concerned might adduce and that after an
order of allotment or release was passed following upon the
notification of vacancy, the aggrieved person could file a
review application or an appeal under s.18. In so holding
the court appears to have overlooked that the stage for
objecting to a vacancy being notified was not after it was
notified and that under the said Rule 8 the notification of
vacancy could only be after the objections were heard and
disposed of. [398H; 399A-F]
3(ii). It is also difficult to understand how a party
who has no right to appear at the original hearing of an
application could be said to have a right of review or an
appeal against an order passed on that application. From the
very nature of things, a right to defend an application in
the first instance is a very different matter from a right
to seek a review of the order on that application or a right
of appeal against that order. In its very nature and scope,
an original hearing differs substantially from a review or
an appeal party applying for review or an appellant cannot
as of right lead evidence Further, it is he who comes before
the authority challenging an order passed to his prejudice
and is not in the same position as the party against whom an
order is sought in the first instance. The correctness of
Trilok Singh & Co.’s case is, therefore, open to doubt. [400
B-C]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3552 of
1983
From the Judgment and order dated 5.10.1982 of the High
Court of Judicature at Allahabad in Civil Misc. Writ
Petition No, 14310 of 1981.
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388
Civil Appeal No. 8553 of 1983
From the Judgment and order dated 5.10.82 of the High
Court of Allahabad in Civil Misc. Writ No. 1058 of 1982.
Shanti Bhushan, R.K. Jain, R.P. Singh, Advs. with him for
the Appellants in C. A. No. 8552/83.
Mr. S.N. Kacker, Sr. Adv., Mr. R.B. Mahrotra, Adv. with
him for the Respondents in C. A. No. 8552/83.
Mr. Soli J. Sorabjee, Sr. Adv., Mr. E.C. Agarwala, Adv.
with him for the Appellants in C. A. No. 8553/83.
Mr. Anwar Ahmed, Sr. Adv., Mr. Ali Ahmed & Miss Halida
Khatoon, Advs. with him for the Respondents in C. A. No.
8553/83.
The following Judgment of the Court was delivered by
MADON, J. The Appellants in each of the above two
Appeals by Special Leave granted by this Court filed in the
High Court of Allahabad a writ petition under Article 226 of
the Constitution of India challenging an order notifying a
deemed vacancy under sub section (2) of section 12 of the
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (U.P. Act No. 13 of 1972). This Act
will hereinafter be referred to in short as "the Act". The
High Court dismissed both these petitions holding that they
were premature. In coming to this conclusion the High Court
relied upon a judgment of a two-Judge Bench of this Court in
Trilok Singh & Co. v. District Magistrate, Lucknow, &
Ors.(1) The said decision of this Court was given prior to
the amendment of the Act by the Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and Eviction)
(Amendment) Act, 1976(U.P. Act No. 28 of 1976) (hereinafter
in short referred to as "the 1976 Amendment Act"). The 1976
Amendment Act came into force on July 5, 1976.
It is unnecessary for the purpose of deciding these
Appeals to set out the facts in great detail The subject-
matter of Civil Appeal
(1) [1976] 3 S.C.R.942
389
No. 8552 of 1983 is a shop bearing Municipal No. 24/34,
situate at Mahatma Gandhi Marg, Civil Lines Market,
Allahabad. According to the Appellants in this Appeal, the
premises were let out to their father, Sheobux Roy, in 1937
and the Appellants’ father commenced carrying on business in
the said premises in the name and style of Messrs B.N. Rama
& Co. The Appellants’ father died on or about February 3,
1941, and according to these Appellants the tenancy was
inherited by them being his sons. Thereafter, there was a
partition amongst the Appellants but in spite of it all the
three brothers continued to carry on their businesses
separately in the same premises though under different
names. While according to the Appellants the tenancy
continued jointly with all of them, according to the
contesting Respondents, who are the landlords, the tenancy
rights belonged to the First Appellant, Ganpat Roy, alone,
who is carrying on business in the said premises as Messrs
B.N. Rama & Co. (Stores) and who paid the rent and used to
recover rent from his other brothers in respect of the
businesses carried on by them in the said premises.
Under section 12 (2) of the, Act, a tenant of a non-
residential building carrying on business in the said
building is deemed to have ceased to occupy the premises on
his admitting as a partner or a new partner a person who was
not a member of his family. The definition Of "family" given
in clause, (g) of section 3 of the Act does not include a
son-in-law or a daughter-in-law. By a Deed of Partnership
dated August 10, 1976, the First Appellant entered into a
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partner ship with his son, Ramesh Roy, and his son-in-law,
Swarup Kailash, to carry on business as authorized retail
dealer of the Mafatlal, Group of Mills under the firm name
and style of Messrs B.N. Rama & Co. (Textiles)- According to
the Appellants, the said partner- ship is Occupying less
than one-seventh area of the said premises. Thereafter in
1979, the landlords filed a suit for eviction against the
First Appellant on the ground that he had sublet the said
premises to his son-in-law. For some reason not apparent on
record, the First Appellant’s defence in the suit was struck
out. The First Appellant filed a revision application to the
Allahabad High Court and further proceedings in that suit
were stayed by an interim order. That suit was withdrawn
some time before the hearing of these Appeals. On or about
March 19, 1981, one Ramesh Nath Kapoor and Radhey Shyam
Kapoor, who are related to the landlords. filed an
application for allotment of the said premises to them on
the ground that there was a deemed vacancy under section 12
(2) of the
390
Act in respect of the said premises. Thereupon the Rent
Control and Eviction Officer got the said premises inspected
by a Rent Control Inspector who made his report on May 23,
1981, to the effect that as the matter relating to the said
premises was pending in the High Court and a stay order had
been granted by the High Court, there was no need to take
any action. It thereafter appears that in order to clarify
the position with respect to the stay order, the Rent
Controller issued notices to the parties. The Appellants did
not appear on the date fixed for hearing and the Rent
Controller by his order dated August 13, 1981, held that
there was a deemed vacancy in respect of the said premises
and ordered such deemed vacancy to be notified and fixed the
hearing of the application for allotment on September 2,
1981. Thereafter a fresh inspection report was made on
September 1, 1981, by the Rent Control Inspector to the
effect that the requirement of the applicants for allotment
of the said premises was genuine. It further appears that an
application for release of the said premises was also made
by the landlords. On September 2, 1981, the Rent Controller
fixed September 11, 1981, for the hearing of the said
application for allotment as also of the said application
for release. On September 11, the said order directing
notification of deemed vacancy and for permission to urge
their objections and to contest the said application for
release. By an order dated September 30, 1981, the Rent
Controller set aside the order notifying the deemed vacancy
but refused permission to the Appellants to contest the said
application for release of the said premises on the ground
that if it were held that there was no vacancy, the question
of release would not arise and if it were held that there
was a vacancy, the occupant would go out of the picture and
thereafter the matter would lie between the District
Magistrate and the landlord and that no other person could
contest the release of the premises to the landlord
according to a judgment of the Allahabad High Court.
Thereafter, by his order dated November 11, 1981, the Rent
Controller negatived the contentions of the Appellant and
held that there was a deemed vacancy in respect of the said
premises and ordered such vacancy to be notified. The
Appellants thereupon filed the said writ petitions in the
High Court which, as mentioned earlier, was dismissed.
During the pendency of this Appeal, further proceedings with
respect to the release or allotment of the said premises
have been stayed by this Court.
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The subject-matter of Civil Appeal No. 8553 of 1983 is
also
391
non-residential premises consisting of a house bearing Nos.
51 and 52, known as West Mount and West View Estates situate
on Survey No. 256 in Santhat Cantonment, Ranikhet, District
Almora, Uttar Pradesh. By a registered Indenture of Lease
dated November 10, 1964, the said property was leased to the
First Appellant in this Appeal, Smt. Kaushal Rekhi, for a
period of few years with two options for renewal for a like
period. The First Appellant has been conducting a hotel in
the said premises known as "West View Hotel". Respondents
Nos. 2 to 4 to the said Appeals are the present landlords of
the said property. On or about June 1, 1968, the First
Appellant entered into a deed of partnership with her son.
Thereafter the First Appellant exercised two Options given
to her. According to the First Appellant, as her son went to
the United States for advanced training in hotel managements
the said partnership was dissolved and she took her
daughter-in law, Smt. Sunita Rekhi, the Second Appellant in
this Appeal, as a partner in the said business by a Deed of
Partnership dated October 22, 1975. According to the first
Appellant, she had intimated the fact of this partnership to
the District Magistrate who is the prescribed authority
under the Act. On October 4, 1980, the landlords made an
application to the prescribed authority for release of the
said property in their favour on the ground that there was a
deemed vacancy in respect thereof. By his order dated May 6,
1981, the Rent Controller and Eviction Officer held that
there was a deemed vacancy in respect of the said premises.
According to the Appellants, the Rent-Controller had earlier
by his order dated January 20, 1981, held that there was no
deemed vacancy in respect of the said premises but had
thereafter without any jurisdiction suo moto held a fresh
inquiry and passed the said order dated May 6, 1981.
According to the contesting Respondents, the earlier order
was passed on some of the objections raised by the
Appellants on the said application for release and the other
objections were disposed of by the said order dated May 6,
1981. The Appellants thereafter filed their said writ
petition in the High Court which, as aforesaid was
dismissed.
In their respective writ petitions, the Appellants had
raised various contentions. Several of them were contentions
of law relating to the interpretation of the definition of
the word "family" in clause (g) of Section 2 and of other
Sections of the Act. The Appellants in Civil Appeal No. 8552
of 1983 had also contended that sub-sections (1) and (2) of
Section 12 of the Act were discrimi
392
natory and unconstitutional as infringing Articles 14 and 19
of the Constitution of India. None of these contentions were
dealt with by the High Court because, as mentioned earlier,
it held that the writ petitions were premature. It was urged
on behalf of the Appellants in Civil Appeal No. 8552 of 1983
that in any event the point of constitutionality raised by
them ought to have been decided by the High Court because an
authority constituted by an Act has no power to determine
the constitutionality of that Act or of any provision
thereof. This does not appear to be a just criticism of the
judgment of the High Court. Apart from stating that the said
sub-sections were unreasonable, discriminatory and
unconstitutional and, therefore, violated Articles 14 and
19 of the Constitution, no, reason was given nor any ground
set out in support of the said contention and most probably
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either the attention of the High Court was not drawn to this
ground or it was not urged before the High Court at the
hearing of the writ petition. At the hearing of these
Appeals, the said Appellants have made an application to
amend their writ petition setting out elaborately their
grounds and reasons in support of the said contention and
have applied for leave to amend their said writ petition in
case their Appeal succeeds and their writ petition is sent
back to the High Court for reconsideration. They have also
prayed for the State of Uttar Pradesh to be added as
Respondent No. 5 to the said writ Petition.
The Appellants in the other Appeal have also similarly
prayed for the amendment of their writ petition in case they
succeed in their Appeal. The question whether these
applications should be granted or not falls to be considered
only if these Appeals are allowed.
It will be convenient to see the relevant provisions of
the Act before we turn to the Trilok Singh & Co.’s Case.
Clause (g) of Section 3 defines "family" as follows:
"(g) ’family’, in relation to a landlord or tenant of a
building, means, his or her
(i) spouse,
(ii) male lineal descendants,
393
(iii)such parents, grand parents and any unmarried or
widowed or divorced or judicially separated
daughter or daughter of a male lineal descendant,
as may have been normally residing with him or
her.
and includes, in relation to a landlord, any female
having a legal right of residence in that building".
What is pertinent to note about this definition is that
a son-in-law and a daughter-in-law are not expressly
included in this definition.
Section 11 of the Act prohibits a person from letting
any building except in pursuance of an allotment order
issued under Section 16. Sub-Sections 2 and 4 of Section 12
provide as follows:
"(2) In the case of a non-residential building, where a
tenant carrying on business in the building admits
a person who is not a member of his family as a
partner or a new partner, as the case may be, the
tenant shall be deemed to have ceased to occupy
the building.
"(4) Any building or part which a landlord or tenant
has ceased to occupy within the meaning of sub-
section (1), or sub-section (2), or sub-section
(3), sub-section (3-A) or sub-section (3-B),
shall, for the purposes of this Chapter, be deemed
to be vacant,"
Section 13 provides that where a landlord or tenant
ceases to occupy a building or part thereof, no person is to
occupy it in any capacity on his behalf or otherwise than
under an order of allotment or release under Section 16
Section 15 casts a duty on every landlord or tenant to give
intimation of vacancy to the District Magistrate. Under
Section 16, the District Magistrate may, by an order,
require the landlord to let any building which is or has
fallen vacant or is about to fall vacant, or a part of such
building, to any person specified in the order (called the
allotment order) or may release the whole or any part of
such building in favour of the landlord. Under the proviso
to Section 16(1), in the case of a vacancy referred to in
section 12(A), the District Magistrate is to
394
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give an opportunity to the landlord or the tenant, as the
case may be, of showing that the said section is not
attracted to his case before making an order under clause
(a) of section 16(1), that is before making an allotment
order. This proviso was inserted by the 1976 Amendment Act.
Strangely enough, in the case of release of the premises to
the landlord the proviso does not require any such
opportunity to he given to the tenant who would be the
person affected by that order. Sub-section (2) of section 16
sets out the circumstances in which a building or any part
thereof may be released to the landlord Under sub-section
(4) of section 16, where the allottee or the landlord has
not been able to obtain possession of the building allotted
or released to him, as the case may be, the District
Magistrate, on an application made to him in that behalf,
may by order evict or cause to be evicted any person named
in that order as well as every other person claiming under
him or found in occupation, and may for that purpose use or
cause to be used such force as-may be necessary and put or
cause to be put the allottee or the landlord in possession
of the building or part thereof. Sub-section (5) of Section
16 provides as follows:
"(5) (a) Where the landlord or any other person
claiming to be a lawful occupant of the building or any
part thereof comprised in the allotment or release
order satisfies the District Magistrate that such order
was not made in accordance with clause (a) or clause
(b), as the case may be, of sub-section (l), the
District Magistrate may review the order:
Provided that no application under this clause shall be
entertained later than seven days after the eviction of
such person.
(b) Where the District Magistrate on review under this
sub-section sets aside or modifies his order of
allotment or release, he shall put or cause to be put
the applicant, if already evicted, back into possession
of the building, and, may for that purpose use or cause
to be used such force as ; may be necessary."
Under sub-section (7) of Section 16, every order made
under that Section, subject to any order made under Section
18, is to be . final, Under Section 18, as substituted by
the 1976 Amendment
395
Act, no appeal lies against any order of allotment,
reallotment or release but any person aggrieved by a final
order of allotment, re-allotment or release may, within
fifteen days from the date of such order, prefer a revision
to the District Judge on any one or more of the following
grounds, namely:
(a) that the District Magistrate has exercised a
jurisdiction not vested in him by law:
(b) that the District Magistrate has failed to
exercise a jurisdiction vested in him by law;
(c) that the District Magistrate acted in the exercise
of his jurisdiction illegally or with material
irregularity.
On such application being made, the revising authority
may confirm or rescind ‘ the final order of allotment, re-
allotment or release or may remand the case to the District
Magistrate for rehearing and, pending revision, may stay the
operation of such order on such terms as he thinks fit. Sub-
section (3) of section 18 provides that where an order of
allotment or reallotment or release is rescinded, the
District Magistrate shall, on an application made to him in
that behalf, place the parties back in the position which
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they would have occupied but for such order or such part
thereof as has y been rescinded, and may for that purpose
use or cause to be used such force as may be necessary.
Prior to the substitution of section 18 by the 1976
Amendment Act, that section provided for an appeal to the
District Judge by a person aggrieved by an order of
allotment, reallotment or release and where such order was
varied or rescinded in appeal, the District Magistrate had
the power, on an application made to him in that behalf, to
place the parties back in the position which they would have
occupied but for such order or such part thereof as was
varied or rescinded and to use or cause to be used for that
purpose such force as may be necessary.
Under section 34(8), for the purpose of any proceedings
under the Act and for purposes connected therewith the
authorities under the Act are to have such power and follows
such procedure, principles of proof, rules of limitation and
guiding principles as may be prescribed by rules made under
the Act.
The Uttar Pradesh Urban Buildings (Regulation of
Letting,
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Rent and Eviction) Rules, 1972, prescribe the procedure for
ascertainment of vacancy and for allotment or release of
premises. Under Rule 8, before he makes any order of
allotment or release in respect of any building which is
alleged to be vacant under section 12 or to be otherwise
vacant or to be likely to fall vacant, the District
Magistrate is required to get the building inspected. The
inspection of the building, so far as possible, is to be
made in the presence of the landlord and the tenant or any
other occupant. The facts mentioned in the inspection report
are, wherever practicable, to be elicited from at least two
respectable persons in the locality and the conclusion of
the inspection report is to be posted on the notice board of
the office of the District Magistrate for the information of
the general public, and an order of allotment is not to be
passed before the expiration of three days from the date of
such posting, and if in the meantime any objection is
received, not before the disposal of such objection. Any
objection received is to be decided after consideration of
any evidence, which the objector or any other person
concerned may adduce. Rule 10 prescribes the procedure for
allotment of a building where an application for allotment
is made. The material portion of sub-rule (6) and of proviso
(a) to that subrule are relevant and may be reproduced.
These provisions are as follows:
"(6).. 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.. deemed cessation:
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 subletting, 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
reconstituted firm;
X X X
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Under Rule 19, where an allotment or release of a building
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or part thereof is ordered under section 16(1) on the ground
inter alia of deemed vacancy within the meaning of section
12, no such order is to be executed until after the
expiration of fifteen days from the service upon the
occupant of a notice to vacate that building or part
thereof, as the case may be.
We will now turn to Trilok Singh & Co.’s. case. The
facts in that case were that an application for release was
made by the landlords in respect of certain residential
premises of which the appellant firm claimed to be the
tenant.A Senior Inspector was directed to inspect the
premises and make a report. According to the report, the
premises were in occupation of three persons, two of whom
claimed to be the partners of the appellant firm. The report
stated, "After hearing the parties it would be proper to
take further action". On receipt of the report, the Rent
Controller passed an order "Let the vacancy be notified"
without granting any hearing to the appellant firm. The
appellant firm thereupon filed a writ petition in the High
Court of Allahabad challenging the said order on the ground
that it was passed in violation of the principles of natural
justice. The said writ petition was rejected summarily on
the ground that it was premature and the proper remedy for
the appellant firm was to approach the Rent Controller under
section 16(5) (a) of the Act for review of the said order.
In appeal, this Court upheld the order of the Allahabad High
Court. This Court held that by reason of section 16(2) no
order bf release could be passed under clause (b) of section
16(1) unless the District Magistrate was satisfied that the
building was required by the landlord bona fide for
occupation by himself or any member of his family or for any
of the purposes specified in sub-section (2) of section 16.
The Court further stated P that under clause (a) of section
16(5), where the landlord or any other person claiming to be
a lawful occupant of the building comprised in the order of
allotment or release satisfied 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 could
review his order and if on review he set aside or modified
the order of allotment or release, he was empowered to put
the applicant, if already evicted back into possession. The
Court further observed that section 18 gave a right of
appeal against an order of allotment or release and that any
person aggrieved by such an order could prefer an appeal to
the District Judge and if the order of allotment or release
was varied or rescinded by the District Judge in appeal the
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District Magistrate had under section 18(2) the
power to place the parties back in the position which they
would have occupied but for such order. The Court further
pointed out that the Act did not provide for a hearing at
the stage when the District Magistrate passed an order of
allotment or release but any person aggrieved by such an
order was entitled to ask the District Magistrate to review
his order and if in the meanwhile any person in possession
of the building had been evicted, the District Magistrate
had the power, if he set aside or modified the order of
allotment or release, to put the applicant back in
possession The Court held (at page 945):-
"Thus, in the first place, it was unnecessary for
respondent ; I to hear the appellants before notifying
the vacancy be cause’ 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
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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 an‘d an order passed by the District Magistrate
under section 16 is appealable under section 18."
The Court then summarized the conclusion it had reached
as follows:
"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."
We find it difficult to reconcile ourselves to the
decision in Trilok Singh & Co.’s Case. The Court’s attention
was not drawn
399
in that case to Rule 8 of the said Rules Rule 8 to which we
have adverted earlier is the one as substituted by
Notification No. 1995/XXlX-E-55-(A) 75 dated May 25, 1977.
The original rule, however, was to the same effect and under
it also the conclusion reached by the Rent Control Inspector
contained in his report of the inspection of the building
was required to be posted on the notice board of the office
of the District Magistrate for the information of the
general public, and the order of allotment could not be
passed before the expiration of three days from the date of
such posting and, if in the meantime any objection was
received, not before the disposal of such objection. The
District Magistrate was, therefore, not justified in
immediately directing the vacancy to be notified and this
act on his part was a clear violation of the statutory
requirements of Rule 8 and had the result of depriving the
appellant firm of an opportunity of hearing which Rule 8
conferred upon it. On this ground alone the appellant firm
should have succeeded. The observation of this Court in
Trilok Singh & Co’s case that it was unnecessary for the
District Magistrate to hear the Appellants before notifying
the vacancy does not, therefore, appear to be correct. It
equally does not appear to be correct to hold that an order
notifying the vacancy did no injury and caused no prejudice
to the interests of any party because an order notifying the
vacancy could be objected to and if any objections were
filed, they would have to be decided after considering the
evidence that the objector or any other person concerned
might adduce and that after an order of allotment or release
was passed following upon the notification of vacancy, the
aggrieved person could file a review application or an
appeal- under section 18. In so holding the Court appears to
have overlooked that the stage for objecting to a vacancy
being notified was not after it was notified but, as
provided by Rule 8, before it was notified and that under
the said Rule 8 the notification of vacancy could only be
after the objections were heard and disposed of. This Court
itself pointed out in that case that the Act did not provide
for a hearing at the stage when the District Magistrate
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passed an order of allotment or release. In such an event,
it can hardly be said that a review or an appeal against an
order of allotment or release was an adequate remedy. As the
very provisions for review and appeal show, if the order
appealed against or sought to be reviewed is varied or
rescinded, the appellant or the person seeking review, if
evicted is the meanwhile, is to be restored back in
possession. How the fact of being evicted or even the danger
of
400
it can cause no prejudice, particularly in these days of
acute shortage of accommodation, is something we are not
able to appreciate. It is also difficult to understand how a
party who has no right to appear at the original hearing of
an application could be said to have a right of review or an
appeal against an order passed on that application. From the
very nature of things, a right to defend an application in
the first instance is a very different matter from a right
to seek a review of the order on that application or a right
of appeal against that order. In its very nature and scope,
an original hearing differs substantially from a review or
an appeal.A party applying for review or an appellant cannot
as of right lead evidence. Further, it is he who comes
before the authority challenging an order passed to his
prejudice and is not in the same position as the party
against whom an order is sought in the first instance. The
correctness of Trilok Singh & Co.’s case is, therefore, open
to doubt.
Apart from this, the position under the Act as amended
in 1976 is greatly changed and the right of appeal which was
granted by section 18 has been substituted by a right of
revision on the grounds set out in the substituted section
18 and which are the same as those on which a revision lies
to the High Court under section 115 of the Code of Civil
Procedure, 1908. While in an appeal, findings of fact can
also be challenged on the ground that the evidence was not
properly appreciated, in revision the only question would be
whether the District Magistrate had exercised a jurisdiction
not vested in him by law or had failed to exercise a
jurisdiction vested in him by law or had acted in the
exercise of his jurisdiction illegally or with material
irregularity. The scope of revision under section 18 is,
therefore, much narrower than in the case of an appeal.
Under the proviso to section 16(1), which was inserted
by the 1976 Amendment Act, the District Magistrate is
required in the case of a vacancy referred to in sub-section
(4) which includes a deemed vacancy under section 12(2) to
give an opportunity to the landlord or the tenant, as the
case may be, of showing that section 12(4) is not attracted
to his case before he makes an order of allotment under
clause (a) of section 16(1). Thus, this proviso gives a
right of hearing to the tenant before an order of allotment
is made. The proviso, however, does not apply in the case of
an
401
order of release made under clause (b) of section 16(1).
Even in the case of an application for allotment, it is
doubtful whether a tenant whose objections to notification
of a deemed vacancy have been negatived and thereafter the
vacancy has been ordered to be notified could be permitted
to reagitate the same contentions because such contentions
would be barred by principles analogous to res judicata. In
such an event, it would be difficult to say that he can
exercise his right of review on the ground that there was no
vacancy. This would apply equally where an order of release
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is made. Further, the revision which is provided for under
section 18 is against an order of allotment or release and
not against a notification of vacancy and an issue, which
was concluded earlier and on the basis of the finding on
which the District Magistrate had proceeded to allot or
release the premises, cannot be reagitated in revision. In
fact, as would appear from the order dated September 30,
1981, of the Rent Control and Eviction Officer in Civil
Appeal No. 8552 of 1983, the Allahabad High Court has held
that where a release of a building is sought, the matter
lies only between the District Magistrate and the landlord
and no other person has a right to object to the release of
the premises to the landlord. The tenant has thus no
adequate or effective remedy against an order notifying a
vacancy. Further, it should be borne in mind that under Rule
10 (6) a tenant who is deemed to have ceased to occupy a
building under section 12(2) is not entitled for a period of
two years from the date of such deemed vacancy to the
allotment of the same or any other non-residential building.
In our opinion, the scheme of the Act would show that a
tenant of premises in whose case it is found that there is a
deemed vacancy has no efficacious or adequate remedy under
the Act to challenge that finding.A petition under Article
226 or 227 of the Constitution of India filed by such a
tenant in order to challenge that finding cannot, therefore,
be said to be premature. In the view that we take, those
Appeals will have to be allowed and the writ petitions of
the Appellants will have to be heard by the High Court on
merits. As mentioned earlier, the Appellants have applied
for amendment of their respective writ petitions. Without
expressing any opinion on the merits of the contentions
sought to be raised in the proposed amendments, we feel that
the amendments sought to be made are of such a nature that
they require to be considered and dealt with by the High
Court.
402
In the result, we allow both these Appeals and reverse
the judgment and set aside the order passed by the High
Court. We further direct the High Court to rehear on merits
the writ petitions filed by the Appellants. We also allow
the application for amendment of both these writ petitions.
The Appellants will amend their respective writ petitions in
terms of the applications for amendment made by them within
one month of the receipt by the High Court of the order of
this Court. The High Court will thereupon issue notice in
each of these two writ petitions to the newly added State of
Uttar Pradesh. The State of Uttar Pradesh will be at liberty
to file a counter affidavit within four weeks of the receipt
of such notice. The original respondents to the writ
petitions will also be at liberty to file a supplementary
counter affidavit within four weeks from the date of receipt
by them of the notice that the writ petitions have been
amended. The High Court will thereafter endeavour to dispose
of these writ petitions as expeditiously as possible.
Pending disposal of the writ petitions by the High Court,
there will be a stay of further proceedings for allotment or
release of the concerned premises and the Appellants will
not be dispossessed from the premises they are occupying.
In the circumstances of the case, there will be no
order as to the cost of these Appeals.
M.L.A. Appeals allowed.
403