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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, 396 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 397 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 398              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