TIRLOK SINGH & CO.

DISTRICT MAGISTRATE, LUCKNOW & ORS.

March 29, 1976

[Y. V. (JiANDRACHUD AND V. R. KRISHNA IYER, JJ.]

Right to be . heard-Lawful occupant of a building has no right to beheard at tl1e stage of ''notifying the vacc!llcy'' bv the District Maoislrate b1.fore passing an order of allot1nent or 1elease-U.P. Urban Building~ (Reguluion of Letting, Re111 and Eviction) Act, 13, 1972, S. 16 read with Rule 8 af U.P.

Urban Buildings (Regulf1tlon of Letting, Rent and Eviction) Rules 1972- Scope of.

Under section 12 of the U.P. Rent Act boh the landlord and the tenant ar'! required to intimate a vacancy to the Distr:ct Magistrate, as and when a vacancy is deemed to have occurred in the circumstances specified therein. ()n the in!i1n;1tion of a vacancy, the District Mag:.Strate may under section 16 pasc; eithr an order allottin~ the premises to a person specified by him or he can release the vacancy in favour of the landlofd on being satisfied that i he requires the pre.mi.<les for the purposes mentioned in sectio'n 16(2). Sµch 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 oh the notice board of the Di3trict !\1agistrate for a period of three days from the date of such notificat, ion.

For the purposes of disposal of an application made by respondents 2 and 3 n/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 vacahcy be notified" admi.ttedly 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 speakingorder oh the fi:TOund 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 in this Court.

During its pendency, the respondent No. 1 issued a notice to the appellants that the release applic1tion filed h'

rcspond"nts 2 and 3 would be takeh 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, v..110 hasi stayed further proceeding.o; and t11e appeal is pending. The question is whether the flrder dated Ma,. 20th 1974 "\\'as illegal for the reasoh that it was passetl "''ithont affording a hearing to the appellants.

Dismissing the appeals the Court, HELD : ( 1) A study of the scheme of the Act and its provisions how the untenability of the contention as reQ:ards the illegalitv of the order passed by respondent No. I. [945A]

(ii) The Act does not provide for a hearing at the stage when the District Magistrate passes an order of allotment or release.

[945-CJ (iii-1A'n order passed under rule 8(2) of the -q.P: Rent Rules for. "ascertainnt of va{; ancy" is what is meant by "notifying the vacancy'. 'The I>istrict Maistratc 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 l1otn1ent or release a'n.--t

it ic; onlv v.'hen such an order of a1lotment or release ts passed that the landlord or the tenant a~ the case may be have a grievance.

Orders of allotpie?t and reJeae are in the first instahce reviewable. u/s 16(5)(a.) by the D1stnct

Magistrate himself and an order passed u/s 16 is appealahle u/s 18.

The Ao..:t thus conten1plates successive opportunities being afforded to persons 'Yh~e interests are likely to be affucted by an order passed oy the Dlstnct Magistrate. [945F-G, 946A, Cl

(iv) In the instant case, the Writ Petition was premature in the sense th~~ the order impugned thereby did not affect the appellants' interest in the particular pren1ises.

The appellants have since fil~ an appeal agaist the order of release to the District Judge and that appeal 1s pending. That is the proper forum for adjudicating on the rival claims. [946Ej

CIVIL APPELLATE 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 C Appellant. t S. T. Desai and M. L. Verma for Respondents 2 and 3.

The Judgment of the Court was delivered by

CHANORACHUD, J. This appeal by special leave raises a short, though important question under the U.P. Urban Buildings (Regulation of D 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. Respondent 1, acting as a Rent Controller, directed a Senior Inspector to inspect thepremises and make a report. Accordingly, the Senior Inspector inspected the pre- E mises 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 G 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 Ap'.il, 1975 the appellants filed a petition for special leaw in this Court a~mst the order of he High Court but during the pendency of that petitton, respondent 1 issued a notice to the appellants stating that the relesc application filed by respondents 2 and 3 would be taken up for heanng on May 19. On May 21, 1975 respondent 1 passed a release

A order and, though moved in that behalf by the appellants, refused to slay further proceedings.

On May 30., 1.975 the appellants filed an, appeal against the release order to the D1st~1ct Jud, ge, Lucknow who has "- , stayed further proceedings. That appeal 1s pendmg.

The narrow question for determination is whether the order passe" 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" proyides by section 12(1) that a landlord or tenant of a building shall be deemed to have ceased to occupy the bu>lding or a part thereof if (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be '1 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 pis 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 bu\lding 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 any vacant building to any person specified in the order, to be called an allotment order. Section 16( 1) (h) 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!andlord 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 Jndge. If the order of allotment or release is varied or rescinded by the-District Jncl 00 the District Magistrate under section 18(2) has the power to place the

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 reoards the illegality of the order passed by respondent.

1. Chapter III otthe 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 circnmstances specified in section 12. On the intimation of a vacancy or otherwise, the District Magistrate may under section 16 pass either an order a11otting 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. II, in the meanwhile, any person in possession of the premises has been evicted the District Magistrate bas the power, iJ; be sets aside or modifies the order of allotment or release, to pnt the applicant back in possession. Fnrther, an order passed under section. 16 is appealable under section 18 which means that a person aggrieved by an order of allotment or release bas 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 tbe 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 hea~ F the appellants 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,. can have a grievance. Orders

of allotment and release arc, in the first instance, reviewable by the G 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. Rnle 8(1) called "Ascertainment of Vacancy" enjoins the District Magistrate, before making an order of allotment or release H in respect of any building which is alleged to be vacant, to obtain a rep1:rt fron_i the Rnt Control In.spctor. Under rnle 8(2), the Inspector 1s reqmred to mspect the bmldmg as far as possible in the presence

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 JW'ant 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 aHotment 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), an objection to the notification of the vacancy has to be decided after considering any evrdence that the objector or any other person may adduce.

The Act thus contemplates successive opportunities being afforded i to persons whose interests are likely to be affected by any order passed by !he 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 fil~ a review application. Thirdly, as against aa 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

appeants' writ petition was prmature. The writ petition was premature 111 !11.e sense at the or?er 1mpugn7d thereby did not affect the ap- "' pellants 111terest 111 the particular premises. The appellants have since filed an appl aganst the orer of release to the District Judge and that appeal rs pendmg. That rs 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. ..