GANPAT ROY AND otHERS Etc.

THE ADDITIONAL DISTRICT MAGISTRATE AND

OTHERS ETC. . :n ·~·!1 .••

March 19, 1985 •

[V.D. TULZAPURKAR, v. BALAKRISHNA ERADI and D.P. MADON, JJ.]

.: Rent Control and Evictioiz-

, .. f.f.P. Urban uildings (Regulation of Letting, Rent and Eviction) Act 1!112, 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 - Notificalion of deemed vacancy - Opportunity of hearing as pro~ vided in Rules, 1nust 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 deenied vacancy - Whether a writ under Articles 226 and 227 by such tenant is maintainable.

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 partnCr 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-inla"Y'Or a daughter-in law.

In each of the two appeals, the appellant/tenant admitted into his partnership firm his son-in-law and 'cir daughter-in-law, as the case may be. Thereupon, the landlord 'respondent in each appeal filed an applicat:on for release of his non-residential buliding 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 appellantsftenants 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 Sectio., 12 of the Act.

The High Court, relying upon a judgment of a two-Judge Bencn of the Supreme

eourt in Trilok. Singh & Co. v. District Mag/straie, Lucknow, &. , Ors.·, (1976) .:l $, C.R. 942 • a decision given prior to the amendment of the Act by Uttar

Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) AmelldfneD.t Act 1976.(for shqrt, the 19.76 Amendn1ent Act), dismissed. both the petitions . as premature holding that where a release of a building is sought, the matter lies nly 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 C0urt 10 ' 1

relieaton ll1Crits 'th6 writ petitions filed by the appellants, the Court, '

HELD' l(i) Under the proviso to Section l~(ll, 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 alotment. order.

This provis'o 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 ahy 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 aggrie"'.ed 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.Districf Judge.

On such application being made, the revising authority may confirm or escind the final order of allotment, re-allot- _ment or release or may emand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such -terms as he thinks tit.

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 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 there~ . of 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-Fl ·

1 (ii)_.

The Uttar Pradesh. Urban Buildings (Regulation of Letting, e.nt 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 vaca"nt or to be likely to fall vatant, tbe District Magistrate is required to get the building inspected.

The facts 'fne~ . tioned in the inspection report are, wherev:er practicable, to be elicite4 fron,.'at

least two respectable persons in the locality and the conclusion of the inspe_ction

i-eport 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 al.lotment is not to

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t19Mt 3 s.c.fi.. ..

_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 ny evidence which the objector or any other prson concerned may adduce. .

[396A-DJ

2(i) The position under the Act as amended in 1976 is greatly changd and the right of appeal which was granted by S.18 has been substituted by a ri&ht of revision on the grounds set out in the substituted Section 18 and which arc 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.

[400£-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 vacany under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12l4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1).

Thus, this

poviso 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 i~ doubtful whether a tenani wose 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 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 premature 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 saffie arc allowed.

[400G-H; 401AD; FHI

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• T llANi'Ar Rav •• 01srt. MA01stRA ti! ; : .. , . -... . ..... ) -.· , ... ,, .. .,

. 3(i). lt is difficult to.reconcile to the decision in Trilok Singh &: Co!s case.

The Court's attentiOii' W3.s nOt"drawO.in that, CaSe tO Rufe 8 of the said Rules.

Rule 8 to which the court has adverted earlier is the one as substi[uted by Notification No; 1995/XXIXE-55,(A)-75 dated May 25; 1917. •The original rule. howevei, was to the same effect and under it also the ccicicJUSio'n. rCathcd by the Rent Control InspectOr cont.liried iii hiS i-Cport of the' i.OsJ; eCtioO'.· Or the:' . building w.as required to be posted on the notice board of the office of the DistriCt Magistrate for the information Of the geaefal publiC. and the order of allotment could not be passed before the expiration. of three days from; _the:dte i~ of such posting and, if in the meantime aay objection was received, not before .

_.the disposal .. _of such bjection~ The District. Magistrate was, the!efo!t; not justified in immediately directing the vacancy_ o be notified and this act on his part was a clear violation of the statutory requirements of Rule 8 and-bad'.thc, ;:

teSu1t of depriving the appeJlant firm of an opprtunity of hearing which Rule 8 . conferred upon .it.' On thi::t ground alone the appellant firm should have suCCeeded.- --The.·· obServatior:i of this Court in Trilok Singh'&: Co;' S Case that it was unnecessary for the' District Magistrate to he3r the iip°peuaO.is before::

notifying: the vacancy does not, therefore, appear to be correct.

It equally d~ not;· aPpeait.o be correct to t hold. that an' order .'notifying the. vacancy did not, injury_and ca.used no prejudice to the interests_ of any_ ptY.ue. an rder /\-

notifying the vacancy' could be objected to and if any objections were filed, ffiey would have to be. decided after considering the evidence that the objector or any other riersoli concerned might adduce and that arter an order: of aJlot ment or release was passed , foIJowing upon the notification of vacancy, the

aggrieved person could fife a revieW application or an appeal under s.18.

In so hOJduig 'the, Court" appCars to have civerJooked tholt the st3ge for objecting .· to 3. vac3.ncY t>Ciiig notified Was not after it Was notified and that under -the ! said RuJe:s the notificatioll of vacancy could only be after the objec.tions were,,-. heard and disposed of •. [398H ; 399A-F), . · . . -· . . ' ··) :<,:-i

~'.'.'.'.-,'":1, .-}

.I,:.'- I ·~' ' 1:. ,· .~' .•. ' . 3(ii) .. , It is also difficult to understand how a party who has no right to ', appear .t .thC .origirial _hearing of an application cOuld bC said iO haVe a 1 right of rCvi~ or_ an appeal agajnst an ·order passed on thit aPplication~-:

Fr~'"n. the : very'. nature of .things, a right to defend 3.n application in tbe first':· instance is a very different matter from a right to seek a. reyiew:.. of . the _ord_el'. J OJl that apPiication or a right of appeal against that order.

In its verj- nature' .. and !COpe,. an .original hearing differs substantially from a 'review Or an appeal.' A party _applying for review or ari api:)eJJant cannot a's fright Jead eviderice. ~

Further,. it is he.who coffies before the authority challenging a.ii .:order .passed.~ to~ prejU~c~ aiid is not in the Sanle p9sition as the party raga.just. whomt an 1 . order is sought in the first instance .. _The correctness of: Trilok Singh & Co/s, case is; therefoi-e, open to doubt .. _ [400 B-q: . , ' ' i ·; r. ,.. ~

CIVIL APPELLA'IE JuR1SDICT!ON : Civil Appeal No. 3552, 1of,

9A3 . . . ' . ' . ' ,· . : !' ._ .Fro!Il teJudgmentand order dated 5.10.1982, of the _High .; curt of Judicature at Allahabad in Civil Misc.: Writ Petition' lo. 14310 of 1981. ,. ,, 1.

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SUPREME CoURT REPORTS l19SSI 3 s.e.tt.

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.G. Agarwala, Adv. him for the Appellants in C. A. No. 8553/83.

Mr. A•war Ahmed, Sr. Adv., Mr. Ali Ahmed & Miss Ha/ida Khatoon, Advs.with him for the Respondents in C. A. No. 8553/83.

The following Judgment of th~ 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 subsection (2) of section 12 of the Uttar Pradesh Urban Buildings (Regulation of L, etting, Rent a.nd 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. Jn 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 Magjstrate, Lucknow, & Ors.(1) T 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 Amend- •ment 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 Appal -----------

(I)

{1976) 3 S.C.R. 942.

GANPAT ROY v, b1§ft. MAG1sfRAtE (Madon,},) 3s9 ·

No. 8552 of 1983 is a shop bearing Municipal No. 24/3~, situate at Mahatma Gandhi Marg, Civil Lines Market, Allahabad. Acor ding to the Appellants in this Appeal, the premises were let out to . their. father, Slieobux 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. There-. alter, 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 arc the landlords, the tenancy rights bel_onged 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 partnership with his son, Ramesh Roy, and his son-in-law, Swamp Kailash to carry on business as authorized retail dealer of the Mafatlai , Group of Mills under the fom name and style of Messrs B.N. Rama' & Co. (Textiles). According to the Appellants, the said partnershipis 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 lln application for allotment of the said premises to. them on the ground that there was a deemed vacancy under section 12 (2) of the

SU!'RBMB COURT RBPOR1'S I t9SS! 3 s.c.tt

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, .19.81, to the' effect that as the matter relating to the said premises was pending in the High Court and a stay order bad been granted by (he 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 bearing 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 I, 1981. by the Rent Control Inspector to the effect that the requirement of the appHcants 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 IL 1981, for the hearing of the said application for allotment as also of the said application for release.

On September I I, the said order directing natification of deemed vacany 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

vaancy 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 th"e 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 he 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 pr<ic~ edings with respect to the release or allotment of the said premiss have been stayed by this Court. ·

The subject-matter of Civil Appeal No. 8553 of 198.i is also

.GANPAT ROY V, DISTT. MAGISTRATE (Madon, J.) 391

non-residential premises consisting of a house bearing Nos. SI 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 I 0,

1964, the said property was leased to the First Appellant in . this Appeal, Smt. Kaushal Rekhi, for a period of five years with two options for renewal for a like period. The First AppeJlant 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 management,. 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 inrespect thereof.

By his ordor 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 bis order dated January 20, 1981, held that there was no deemed vacancy in respect of the said premises but bad thereafter without any jurisdiction suo rnoto held a fresh inquiry and passed the said order dated May 6,

1981. According to the contsting 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, !981. 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 Jaw relating to the interpretation of the definition of the word "family"

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in clause (g) of Section 2 and of other Sections of the Act. :rhe Appellants in Civil Appeal No. 8552 of 1983 had also contended Ii 11 that uh-sections (1) and (2) of Section 12 of the Act were discrimi-

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119851 3 S.C.R.

riatory 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 ah Act has no power to determine the constitutionalty of that Act or of any provision thereof. This does not appear to be a just criticism ofthe judgment of the High Court. Apart from statin'g 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 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 t'heir 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

cp 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 : r

"(g) 'family', in relation to a landlord or tenant of a building, means, his or her

(i) spouse,

(ii) <:male lineal descendants,

GANPAT ROY v. D!STT. MAGISTRATE (Madon, J.) 393

. (iii) such parents, grand parents and any unmarried A or widowed or divoced or judicially sepa.rated 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 builning".

What is pertinent to note about this definition is that a son- .in-law and a daughter•in-Jaw are not expressly included in this

~.definition.· C

Section 11 of the Act prohibits a person from Jetting any building except in pursuance of an allotment order issued under Section 16. Sub-Sections 2 and 4 of Section 12 provid 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 ocupy the building.

"(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (I), or sub-section .(2), or sub-section (3),' sub-section (3-A) or sub-section (3-B), shall, for the purporses 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 o.rder 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 (ca lied the allotment order) or may \ release. the whole or any part of such building in favour of the . Jadlord. Under the proviso to Section 16(1), in the. case of a

yaancy.referred to in section 12(4), the District Magistrate is. to

'.i

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' .· 394

l '\ . ' " Sl!PRE/.lE COlJRTRiPOR1S. •• ' 1 !19851 3 s.c.11.

 gi-:e, an opprtunity to thelandlord.or, te tenant; as" the cae may .. be, of showing that the· said section 1s not attracted to his case

.before making itii order under clause (a) of section 16(1), that is

before makhig ait allotment order: , This proviso was inserted by the 1976 Amendment Act. Strangely enough, in the case of release of the P_remises to the landlo; d the proviso does not require any such op- . portuniiy tote 'giveii io the tenant who would be the person affected ··by thai orde~. Sub:section (2) of sectfon. J 6 sets out: the: circumstances . in which a building or any part thereof may be released to the .. ,. landlord.·. Under sub-se.ction (4) of section 16, .where the allottee .,"'or• the 'landiord has not been able to obtain possession of t!ie, building allotted or released to him; as the case may be .. the:, District Magistrate, on an applieation made to him in that behalf, may by ; ··: order evict or cause to be evicted any,. person named in_., that order

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' as well as every other person claiming under. hi.m or found in:, occupation, and may for that purpoe use or cause to be used such: force as may be necessary and put or cause to be put the allotiee'oi the Jandlcird in possession of the building or part thereof. (Sub-section r _(5) of Section 16 provides as follows : '

L-,:

t ; ·" . '".,·, t .:: ,._} .·: '.~ " .. ( '.( i. ;::1:::1 .. ''.(5) fa) .Where the. landlord or any other person claiming ,,, to. be a lawful odupant or' th~ b

0uilding or' "any' part thereof ': . . ' ' .. . • - ... - . ' • . . ·-' ..... l , .• comprised in the allotment or release order satisfies the

. " . J Distticto Magistrate ; that. such order. •was. not made in :' !' ,:accordance with clause(aY or clause (b); as the case may

i ! : -'be, of sub=-section (I), the' District Magistrate may review

r~J: '.1theorder.: ,: ... ' ....

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. I- :.,; • ' - • ; •• .) Provided that no application under this Clause shall be

 F . entertained later than seven days after the eviction of such ·,.._ __ . ~- l:'pCfson~' .,

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' ' 1' (b) :where the Di1tric('Magistfate on revicwl'under this

- .. - '.: 'Sub-section'setS aside or mOdifiCs hfsorder: Or atlotmellt'or

. ·elease,.he shall put or' cause to be' pht''the''applicant, if . i already evicted, back foto possession of the; building,: and .. : ' .. may for that purp'ose use or cause io

0 be used siich 'force·.as '"'' _'--1 ;·lriaybeeceSsary:•, · · i '; .i ' ' 1 i,, ~.-t:.. .. -.. , ·.' • _ ' • . . . , ·: ·-: -' .. : • • ; ! ,._.;_ : : r ( ,

. : L..-1 . ;_, : . :; :" ( Ud'eisub-sectioit (7) of Sction. i 6, every 'ider'1niader'Under H :', '.!hat Section,' subject to'any order 'made: undr' SectioJ-18) is lo be . 'finat 'Under SeciiOri 18/as 'substituied liy'. the'1·1976'. Amendment

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.. . GANPAT ROY ... DIST't, MAGISTRATE (Madon, J.) 395

Act, no appeal lies against any order of allotinent, reallotmetlt .A or release but any person aggrieved by a final order of allotment, re-allotment or release may, wi.thia fifteen days from the date :of , such order. prefer a revision to the District Judge on any one or '.more ofthe 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 io 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 mch application being made, the revising au.thority may , c\mfirm or rescind the final order of allotment, re-allotment or . release or tnay remand the case to the District Magis.trate for rehearing and, pending revision, may siay the operation of such order on such terms as he thinks fit.

Sub-section (3) of section l 8 provides . that where an order of allotment or reallotment or release is rescinded, the District Magistrate shall, on an applicatio11 made 'to him in that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose Use or cause t0 'be used such force asmay be necessary. Prior to the substitution of section 18 by th~ l.976 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 onnected therewith the autl\orities under the Acrare to have such power ano follows such procedure, principles

cir'proof, tules of limitation and guiding principles as inay 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 permises. 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 thetenant 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 ins.pection 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 obj., ctor or any other per .sori concerned may adduce.

Rule IO prescribes the procedure for . allotment of a

0building 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 o; strict 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 c• 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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GANPAT ROY v. DJSTT. MAGISTRATE (Madon, _J.) 39'1

. Under Rule 19, where an allotment or release of a building or part thereof is ordered under section 16(1) on the ground inter a/ia 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 jn that case were that an application for release was made by the landl.ords in respect of certain re1idential 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 Le 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 pa<sed 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 of release could be passed under clause (b) of section 16(1) unless the District Magistrate was satisfied tht the building was required by t_he landlord bona.fide for occupation by bimso; lf or any member of his family or for any of the purposes specified in sub-section (2) of section 16.

The Court further stated

t)it under clause (a) of section 16(5), where the landlord or any other person. cla.iming o be a lawful occupant of the . building com prised. in tbe order of allotment or release satisfied te District Magistrate that such an order was not made in accordance with

.. ,.E

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 , j G of allotment or realease, he was empwered to put the applicant, if

aleady evicted back into possession. The C'ourt further observed that section 18 gave a 'right. 'of ilppeal against an order ofaliotment or release and that any person aggrieved by such an order could pre fer 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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(1985] 3 S C.R.

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 ptovide for a hearing at the stage when the District Magistrate passed art order of allotment or release but any person aggrieved by such an order was entitled to ask the District Magistrate to review his ord.er 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 1 to hear the appellants before notifying the vacancy because under the scheme of the U.P. Rent Act, an order notifying the vacrncy 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 hirnself and 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 o; strict Magistrate.

Putting it briefly, an order notifyin.g 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 draw11

. 'GAN!IAT ROY v, ms'ft. MAGISTRATE (Madon, i.)

in that case to Rule 8 of the said Rules. Rule 8 to which we .!J.ave

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!~•.

inspection of the building - was required to b.e posted. on.,, t~'e. notice board of the office of the District Magisirate for )he

information of the general public, and the order of allotment could not be passed before the expirntion of three days froni the date of such posting and, if in the moan time any objection. ws received, not before the disposal of such objection. The District l\fagistrate 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 Rle 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 preson 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 tinder

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

Co11rt itself pointed out in that case that the Act did not provide for a hearing at the stage when the District Magistrate passed. an order of allotment or release.

In such, an event, it can hardly b, e said that a review or an appeal against an order of allotment 0~ release was an adequate remedy. As the very provisions for review and appeal show, if the order appealed against or sought to be

revewed _is vried ?r rescinded, the appellant or the person seeking review,. 1f evicted m the meanwhile, is to be restored back in possession. How the fact of being evicted or even the danger Qf

suJIRl!Mll COURT REl>Oltt~ [I 9851 S.C.ll..

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 canno1 as of right lea'1 evidence. Further, it is he who comes before the autho, ity 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 Tri/ok Singh & Co.'s case js, therefore, open to doubt.

A part 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 ground's 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 (he 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 hearin& to the tenant before an order of allotment is made. - The proviso, however, does not apply in the case of an

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 "bANl'At Rov v. oistt. l.!Ad1st.RArs <MJdciti, J.J 4lil

order of ieleasil made under clause (b) of section 16( I); Even in the case of. an application for allotment, it is .doubtful whether a

tenant whose objections to notification of a deemed v11ca'ncy 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 judictita. In such an event, it would. be difficult to say that .he can exercise his right of review on the grou, nd that there was no vacancy.

This would apply equally. where an order of release is mad~. Further, the revision which is prov.ided 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 an.d on the basis of the finding on which the District Magistrate had proceeded to allot or release. the premises, cannothe reagitated in rev.ision.

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 buildingjs sought, tlie 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 Jbe writ petitions of the Appellants will have to be beard 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 l:ligh Court.

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4o~ · SUPREME coiJRt REPOR±S ,._., - ,. . ,..... ' [198~! j s c.it.

In the result, we .allow poth these Appeals and reverse the Judgmeni ·.and. set . aside the order pass"ed by the Hih Court.·. We

furthe~- direct the High Court to rehear on merits the writ petitions tjled by the'A. ppellants. We also allow the application for amendment -·· -- - ' of l:>oth these writ petitions. The Appellants will amend their respectie" writ' petitions in terms of the applications for amendment made by them within one month of the receipt by the High Co.urt 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 surplementary counter affidavit with.in four weeks from the date of receipt by them of the notice .that the writ peti lions 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 relea.se 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 ord.er a~ .to the cost of these Appeals.

M.L.A.

Appeals allowed.