Ajay Pal Singh vs District Judge,Meerut & Ors.

S.P. Mehrotra, J.—This writ petition under Article 226 of the Constitution of India has been filed by the petitioner, inter alia, praying for quashing the order dated 23rd July, 2003 (Annexure3 to the writ petition) passed by the District Supply Officer/Delegated Authority, Meerut and the order dated 7th August, 2003 (Annexure5 to the writ petition) passed by the learned District Judge, Meerut.

The dispute relates to an accommodation in House No. 469 situated in New Govindpuri, Kankerkhera, Meerut Cant, Meerut. The said accommodation has hereinafter been referred to as the �disputed accommodation�.

From the allegations made in the writ petition it appears that the respondent No. 3 filed an application dated 1912001 under Section 16 read with Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) (in short �the Act�), inter alia, praying for release of the disputed accommodation in favour of the respondent No.3. A copy of the said application dated 191 2001 has been filed as Annexure1 to the writ petition.

It further appears that a report was called for from the Rent Control Inspector. The Rent Control Inspector submitted his report, a copy whereof is annexed as Annexure4 to the writ petition.

It further appears that the affidavits and documents were filed by the respondent No. 3 and the petitioner in support of their respective cases.

The District Supply Officer/Delegated Authority, Meerut by the order dated 172003, inter alia, declared that there was deemed vacancy in the disputed accommodation. It was, inter alia, held that the petitioner was in occupation of the disputed accommodation since 1989, and further, the petitioner had acquired his own house in Mohalla Chowk, Kankerkhera, Meerut. A copy of the said order dated 172003 has been filled as Annexure2 to the writ petition.

It further appears that by the order dated 2372003 (Annexure 3 to the writ petition), the District Supply Officer/Delegated Authority, Meerut released the disputed accommodation in favour of the respondent No. 3.

It further appears that against the said order dated 2372003, a revision under Section 18 of the Act was filed which was registered as Civil Revision No. 51 of 2003.

By the order dated 782003 (Annexure5 to the writ petition), the learned District Judge, Meerut dismissed the said revision filed by the petitioner as not maintainable. It was, inter alia, held that the prospective allottee had no right to file revision under Section 18 of the Act in case the accommodation was released in favour of the landlord under Section 16(1)(b) of the Act.

Thereafter the petitioner has filed the present writ petition seeking the reliefs mentioned above.

I have heard Sri S.N. Yadav, learned counsel for the petitioner at length.

Before proceeding to deal with the submissions made by the learned counsel for the petitioner, it is necessary to mention that the petitioner in the present writ petition has filed a supplementary affidavit sworn on 2882003 annexing thereto copies of the order dated 14101999 passed by the Prescribed Authority/J.S.C.C., Meerut in P.A. Case No. 116 of 1998 and the order dated 7122000 passed by the learned 11th Additional District Judge, Meerut in Misc. Appeal No. 318 of 1999.

A perusal of the said orders shows that the respondent No. 3 had already filed a release application under Section 21 of Act against the petitioner seeking release of the disputed accommodation. The said release application was registered as P.A. Case No . 116 of 1998. By the said order dated 14101999, the learned Prescribed Authority/JSCC, Meerut dismissed the said release application under Section 21(1)(a)of the Act. It was inter alia, held that the petitioner had been residing in the disputed accommodation since August, 1989 and there was no allotment order in favour of the petitioner, and, therefore the Full Bench decision of this Court in Nutan Kumar v. IInd Additional District Judge, Banda, 1994 ALJ 999, was applicable, and the application for release was not maintainable. It further appears that the respondent No. 3 filed an appeal under Section 22 of the Act, which was registered as Misc. Appeal No. 318 of 1999. By the order dated 7122000 passed by the learned 11th Additional District Judge, Meerut, the said Misc. Appeal No. 318 of 1999 was dismissed.

Coming now to the submissions made by Shri S.N. Yadav, learned counsel for the petitioner, it is submitted by Shri Yadav that the order dated 172003 passed by the District Supply Officer/Delegated Authority, Meerut declaring vacancy in the disputed accommodation was illegal.

Shri Yadav has further referred to the aforementioned supplementary affidavit filed on behalf on the petitioner before this Court. It is submitted by Shri Yadav that as in the said orders passed in the proceedings under Section 21(1)(a) of the Act and the appeal arising therefrom, the authorities held the petitioner as unauthorized occupant in the disputed accommodation, it is evident that the respondent No.3/landlord was guilty of letting the disputed accommodation to the petitioner without allotment order. The respondent No. 3/landlord having violated the provisions of the Act, was precluded from seeking the release of the disputed accommodation under Section 16(1)(b) of the Act.

It has further been submitted by Shri Yadav that the respondent No.3/landlord having let out the disputed accommodation to the petitioner without any allotment order in favour of the petitioner, violated the provisions of the Act which prohibit any letting of accommodation covered by the Act without allotment order. The respondent No. 3/landlord having violated the provisions of the Act, was disentitled from seeking release of the disputed accommodation declared to be vacant. The disputed accommodation, the submission proceeds, could only be allotted under Section 16(1)(a)of the Act to any prospective allottee including the outgoing tenant (i.e. the petitioner) to whom the disputed accommodation had been let out without allotment order.

Learned Counsel for the petitioner has placed reliance on the following decisions:

(1) Jagdish v. District Judge, Kanpur Nagar and others, 2002 (1) ARC 327 : 2002 (1) AWC 766 : 2002 (1)JCLR 582(Alld) : 2002(46) ALR 677.

(2) Ram Nath Sehgal v. District Judge, Kanpur Nagar and others, 2002(48)ALR 418 : 2002 All CJ 1185.

(3) Ram Shanker Yadav v. 15th Additional District Judge, Kanpur Nagar and others, 2002 All CJ 1131.

(4) Rafat Ahmad Jamal Alvi v. R.C.E.O. Allahabad and others, 2002 All CJ 509.

(5) R.K. Parashar v. Dinesh Kumar and others, 2000 (1) ARC 557 (S.C.).

(6) Nanak Ram v. Kundal Rai, (1986) 3 SCC 83 : AIR 1986 Supreme Court 1194.

I have considered the submissions made by the learned Counsel for the petitioner.

As regards the order dated 1st July, 2003 whereby the District Supply Officer/Delegated Authority, Meerut declared deemed vacancy in the disputed accommodation, I am of the opinion that no illegality has been committed by the District Supply Officer/Delegated Authority, Meerut in passing the said order dated 172003. It was established on record that the disputed accommodation was let out to the petitioner without any allotment order since August, 1989, and the petitioner was in occupation of the same since then. The petitioner was, thus, an unauthorized occupant in the disputed accommodation in view of the provisions of Sections 11 and 13 of the Act. As the petitioner came in occupation of the disputed accommodation in 1989, he was not entitled to the benefit of Section 14 of the Act which regularized the tenancy of such a tenant who was in occupation of a building with the consent of the landlord immediately before the commencement of the Utter Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, i.e. , before 5th July, 1976.

It is further noteworthy that the petitioner had acquired a house in Mohalla Chowk, Kankerkhera, Meerut. Therefore, in view of the provisions of Section 12 (3) of the Act, there was deemed vacancy in the disputed accommodation.

Hence, the order dated 172003 declaring vacancy in the disputed accommodation does not suffer from any illegality.

Coming now to the submissions made by the learned counsel for the petitioner challenging the correctness of the order dated 23 72003 passed by the District Supply Officer/Delegated Authority, Meerut releasing the disputed accommodation in favour of the respondent No. 3/landlord under Section 16(1)(b) of the Act, I am of the opinion that the said submissions are not open to the petitioner who is an outgoing tenant consequent to the declaration of vacancy in the disputed accommodation. Once an accommodation has been validly declared vacant on any ground and the same is thereafter released in favour of the landlord under Section 16(1)(b) of the Act, the outgoing tenant (i.e., petitioner in the present case) has no locus standi to question the validity of the release order on any ground whatsoever. It is not open to such outgoing tenant (i.e., the petitioner in the present case) to file revision under Section 18 of the Act challenging the correctness of the release order under Section 16(1)(b) of the Act. In my opinion, the leaned District Judge, Meerut by his order dated 782003 rightly dismissed the said Civil Revision No. 51 of 2003 filed by the petitioner under Section 18 of the Act.

In view of the aforesaid, the submissions made by the learned counsel for the petitioner (i.e., the outgoing tenant) questioning the validity of the release order in favour of the respondent No. 3/landlord on the ground that the respondent No. 3/landlord violated the provisions of the Act by letting out the disputed accommodation in favour of the petitioner without allotment order, cannot be considered as the petitioner (i.e., an outgoing tenant) has no locus standi to challenge the validity of the said release order on any ground.

Even otherwise, I am of the opinion that the submissions made by the learned counsel for the petitioner cannot be accepted. In this regard, it is necessary to refer to the relevant provisions of the Act and the Rules framed under the Act. Sections 11, 12, 13, 14, 15, 16, 17, 18, 19 and 31 of the Act and Rules 8, 9, 10 and 13 of the Rules framed under the Act may be referred to in this connection.

Section 11 of the Act prohibits letting without allotment order, and lays down as follows:

�11. Prohibition of letting without allotment order. Save as hereinafter provided, no person shall let any buildings except in pursuance of an allotment order issued under Section 16.�

Section 12 of the Act deals with the deemed vacancy in a building in certain cases, and provides as follows:

�12. Deemed vacancy of building in certain cases. (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if

(a) he has substantially removed his effects therefrom, or

(b) he has allowed it to be occupied by any person who is not a member of his family, or

(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residency, elsewhere.

(2) In the case of nonresidential 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.

(3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy:

Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.

[Explanation. For the purposes of this sub section

(a) a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee;

(b) the expression �any member of family�, in relation, to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant.]

[(3A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him, of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town area to which he has been so transferred, whichever is later.

(3B) If the tenant of a residential building is engaged in any profession, trade calling or employment in any city, municipality, notified area or town area in which the said building is situate, and such engagement ceases for any reason whatsoever, and he is landlord of any other building in any other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy the firstmentioned building with effect from the date on which he obtains vacant possession of the lastmentioned building whether as a result of proceedings under Section 21 or otherwise.]

(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of subsection (1), or subsection (2), or [subsection (3), subsection (3A) or sub section (3B)], shall for the purposes of this Chapter, be deemed to be vacant.

[(5) A tenant, or as the case may be, a member of his family, referred to in subsection (3) shall have a right, as landlord of any residential building referred to in the said sub section which may have been let out by him before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 to apply under clause (a) of subsection (1) of Section 21 for the eviction of his tenant from such building, notwithstanding that such building is one to which the remaining provisions of this Act do not apply.]�

Section 13 of the Act imposes restrictions on occupation of building without allotment or release. The said Section 13 of the Act is as follows:

�13. Restrictions on occupation of building without allotment or release. Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorized occupant of such building or part.�

Section 14 of the Act makes provision for regularization of occupation of existing tenants. The said Section 14 is quoted below:

�14. Regularization of occupation of existing tenants. [Notwithstanding anything contained in this Act or any other law for the time, being in force, any licensee (within the meaning of Section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction)(Amendment) Act, 1976 not being a person against whom any suit or proceedings for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorized licensee or tenant of such building.]�

Section 15 of the Act imposes obligation to intimate vacancy to the District Magistrate, and lays down as under:

�15. Obligation to intimate vacancy to District Magistrate. (1) Every landlord, shall on a building falling vacant by his ceasing to occupy it or by the tenant vacating it or by release from requisition or in any other manner whatsoever, give notice of the vacancy in writing to the District Magistrate not later than seven days after the occurrence of such vacancy, and such notice may at the option of the landlord be given before the occurrence of the vacancy.

(2) Every tenant so vacating a building shall give notice thereof in writing to the District Magistrate and also to the landlord not less than fifteen days before the vacancy.

(3) The notice under subsection (1) or subsection (2) shall contain such particulars as may be prescribed.

(4) The District Magistrate, on being satisfied on an application made to him in that behalf that there was sufficient cause for the landlord or the tenant not to give notice under subsection (1) or subsection (2) within time, may condone such delay.�

Section 16 of the Act deals with allotment and release of vacant building. The said Section 16 is quoted below:

�16. Allotment and release of vacant building. (1) Subject to the provisions of the Act, the District Magistrate may by order

(a) 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 but not appurtenant land alone, to any person specified in the order (to be called an allotment order); or

(b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order):

[Provided that in the case of a vacancy referred to in sub section (4) of Section 12 the District Magistrate shall 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).]

(2) No release order under clause (b) of subsection (1) shall be made unless the District Magistrate is satisfied that the building or any part thereof or any land appurtenant thereto is bona fide required, either in its existing form or after demolition and new construction, by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes, of any profession, trade calling or where the landlord is the trustee of a public charitable trust, for the objects of the trust, or that the building or any part thereof is in a dilapidated condition and is required for purposes of demolition, and new construction, or that any land appurtenant to it is required by him for constructing one or more new buildings or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings:

Provided that no application under this subsection shall be entertained for the purposes of a charitable trust the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste or place of birth.

(3) The allotment order shall specify

(a) whether the building shall be used by the tenant for residential or nonresidential purposes;

(b) in the case of business purposes, the names of proprietors or partners of the business;

(c) the date, which shall not be earlier than seven days after the date of the order, by which the landlord shall deliver possession to the allottee;

(d) such other particulars as may be prescribed.

(4) Where the allottee or the landlord has not been able to obtain possession of the building, allotted to him or, as the case may be, released in his favour, or any part thereof, [***] the District Magistrate, on an application of the allottee or the landlord, as the case may be, may by, order evict or cause to be evicted any person named in the 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.

(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 (1), 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.

(6) If the District Magistrate finds an application given under subsection (5) to be false or frivolous, he shall by order award to the allottee or the landlord, as the case may be, against the applicant special costs which shall not exceed five hundred ruppees.

(7) Every order under this section shall, [subject to any order made under Section 18], be final.

(8) The allottee shall, [subject to the provisions of subsections (5) and (9) and Section 18], be deemed to become tenant of the building from the date of allotment, or where he is unable to obtain possession by reason of a stay order or of any other person having occupied or continued to occupy the building, from the date on which he obtains possession.

[(9) The District Magistrate shall, while making an order under clause (a) of subsection (1), also require the allottee to pay to the landlord an advance, equivalent to,

(a) where the building is situated in a hill municipality, one half of the yearly presumptive rent; and

(b) in any other case, one month''s presumptive rent, and on his failure to make or offer the payment within a week thereof, rescind the allotment order.

Explanation In this subsection the expression �presumptive rent� means an amount of rent which the District Magistrate prima facie considers reasonable having regard to the provisions of subsections (2) and (2A) of Section 9, provided that such amount shall not be less than the amount of rent which was payable by the last tenant, if any.

(10) Nothing in subsection (9) shall be construed to require the District Magistrate to take any evidence or hold any formal inquiry before fixing the presumptive rent of the building allotted, and the amount mentioned in the allotment order as presumptive rent shall be subject to any agreement in writing between the parties or to any subsequent determination of standard rent after formal inquiry under Section 9:

Provided that until the presumptive rent is so revised by agreement or by an order under Section 9, the tenant shall continue to be liable to pay rent according to the presumptive rent specified in the allotment order, so however, that any subsequent order under Section 9 shall relate back to the date of commencement of the tenancy.]�

Section 17 of the Act deals with conditions of making allotment order, and provides as under:

�17. Conditions of making allotment order. (1) Where the District Magistrate receives an intimation, under subsection (1) of Section 15,of the vacancy or expected vacancy of a building any allotment order in respect of that building shall be made and communicated to the landlord within twentyone days from the date of receipt of such intimation, and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choice, and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of intimation of such nomination:

Provided that where the landlord has made an application under Clause (b) of subsection (1) of Section 16, for the release of the whole or any part of the building or land appurtenant thereto in his favour, the said period of twentyone days shall be computed from the date of decision on that application or where an application for review or an appeal is filed against such decision, from the date of decision on such application or appeal.

(2) Where a part of a building is in the occupation of the landlord for residential purposes, or is released in his favour under clause (b) of subsection (1) of Section 16 for residential purposes, the allotment of the remaining part thereof under clause (a) of the said subsection (1) shall be made in favour of a person nominated by the landlord.

Explanation. Where a building in the occupation of the landlord for residential purposes adjoins (whether horizontally or vertically) the building sought to be allotted, and

(a) there is a common entrance to or a common passage for both the buildings ; or

(b) the two buildings share the sanitary conveniences or other amenities (not including electric connection);

then notwithstanding that the two buildings are independently fit for residential purposes, they shall be deemed to be part of each other for the purposes of this subsection.]�

Section 18 of the Act makes provision for filing revision, interalia, against a final order passed under Section 16 of the Act. The said Section 18 of the Act lays down as follows:

�18. Appeal against order of allotment or release. (1) No appeal shall lie from any order under Section 16 or Section 19, whether made before or after the commencement of this section, but any person aggrieved by a final order under any of the said sections 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 jurisdiction vested in him by law;

(c) that the District Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity.

(2) The revising authority may confirm or rescind the final order made under subsection (1) or may remand the case to the District Magistrate for rehearing, and pending the revision, may stay the operation of such order on such terms, if any, as it thinks it.

Explanation. The power to rescind the final order under this subsection shall not include the power to pass an allotment order or to direct the passing of an allotment order in favour of a person different from the allottee mentioned in the order under revision.

(3) Where an order under Section 16 or Section 19 is rescinded, the District Magistrate shall, on an application being made to him on 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 to be used such force as may be necessary.]�

Section 19 of the Act makes provision for reallotment in the event of landlord abusing the release order, and lays down as under:

�19. Reallotment in the event of landlord abusing the release order. Where a building or part thereof is released in favour of the landlord under Section 16, or on revision under Section 18], on the ground that it was required by the landlord for occupation by himself or any member of his family or any person for whose benefit it was held by him, or for the objects of the trust of which he was the trustee, or on the ground that it was required for purposes of demolition and new construction, and the landlord either puts or causes to be put into occupation any person different from the person for whose occupation, according to the landlord''s representation, it was required, or permits any such person to occupy it, or otherwise puts it to any use other than the one for which it was released or, as the case may be, omits to occupy it within one month or such extended period as the District Magistrate may for sufficient cause allow from the date of his obtaining possession or in the case of a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, the District Magistrate or, as the case may be, the District Judge, on an application being made in that behalf within three months from the date of such act or omission, may after giving to the landlord an opportunity of being heard, revoke the order of release in whole or in part, and on such order being made, the District Magistrate may treat the building or part as vacant and allot it as such.�

Section 31 of the Act makes provision for penalties. The said Section 31 is quoted below:

�31. Penalties. (1) Any person who contravenes any of the provisions of this Act or any order made thereunder or attempts or abets such contravention, shall be punished on conviction with imprisonment of either description for a term which may extend to six months or with fine which may extend to five thousand rupees or with both.

[(2) Whoever demolishes any building under tenancy or any part thereof without lawful excuse shall be punished, on conviction, with imprisonment of either description for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.]

(3) Where a person has been convicted for contravention of sub section (1) of Section 4, the Court convicting him may direct that out of the fine, if any, imposed and realized from the person so convicted, an amount not exceeding the amount paid as premium or additional payment over and above the rent for admission as a tenant or subtenant to any building may be paid to the tenant by whom such payment was made:

Provided that any amount so paid to the tenant shall be taken into account in awarding compensation or restitution to him in any subsequent claim.�

Rule 8 of the Rules framed under the Act deals with ascertainment of vacancy and provides as follows:

�8. Ascertainment of vacancy [Sections 12, 16 and 34 (8)] [(1) The District Magistrate, shall before making 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, get the same inspected.

(2) The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not 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.

(3) Any objection under subrule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce.�

Rule 9 of the Rules framed under the Act makes provision for notice of vacancy. The said Rule 19 is quoted below:

�9. Notice of vacancy [Section 15]. (1) Every notice to the District Magistrate under subsection (1) or subsection (2) of Section 15 shall contain the following particulars:

(a) The number, if any, allotted by the local authority to the building and the street, ward or division in which the building is situated.

(b) The name and address of the landlord.

(c) Whether the building is residential or non residential.

(d) Details of accommodation available together with the appurtenant land, garden garages, outhouses, etc.

(e) In case the building falling vacant is part of a bigger building, the names of occupants of the other parts.

(f) The actual or expected date of vacancy.

(g) The name of the person vacating the building.

(h) The year of construction of the building.

(i) Whether the building was ever let out.

(j) Other information, if any.

(2) The notice shall be signed and dated by the information and shall be presented in person at any time during office hours on any working day or shall be sent by registered post acknowledgment due.

(3) Immediately after the receipt of intimation of vacancy of any building in the office of the District Magistrate, the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by pasting a copy of the list of the vacant buildings on the notice board of that office, specifying therein the date on which the question of allotment will be considered. He shall also issue a notice to the landlord intimating him the date so fixed. On the date so fixed the District Magistrate shall consider the cases of all applicants registered in the register mentioned in Rule 10 and shall pass an order under Section 16 in accordance with Rules 10 and 11.�

Rule 10 of the Rules framed under the Act lays down the procedure for allotment. The said Rule 10 is as under:

�10. Allotment procedure [Section 16 (1)(a) and 34 (8)]. (1) (a) An application for allotment of a building shall be made in Form A.

(b) The District Magistrate shall maintain a register of applications for allotment of buildings.

(c) The application shall be classified according to the priority categories specified in Rule 11 and shall be registered in order of receipt of applications.

(d) For each priority category, there shall be a separate register and the applicant shall be given a serial number showing the number and date of his registration and the priority category in which he has been registered.

(e) Each such register shall be open to inspection by any member of the public on application being made in this behalf.

(2) In the case of requirements for Government office and accommodation for Government servant while posted in that local area, a request by the Head of the Department or Principal Head of Office shall be sufficient and his letter shall be treated as a substitute for the application and shall be entered as such.

(3) A tenant against whom a suit for eviction filed with the permission of the District Magistrate under Section 3 of the old Act or an application under Section 21is pending may immediately apply for allotment of alternative accommodation and need not wait till the decision of that suit or application. Such application shall be without prejudice to the result of the said proceedings.

(4) The register shall be prepared afresh for every calendar year and applicants who are unable to secure allotment by the end of a year and whose applications were not rejected as not maintainable may apply by the 15th January of the succeeding year for renewal of registration of their applications and shall thereupon retain their original relative priority in comparison to other applicants and the names of persons whose application are so renewed shall stand above the names of new applicants in that year.

(5) A building shall not ordinarily be allotted to the following persons or for the following purposes

(a) A tenant against whom a decree or order has been passed for ejectment on any ground mentioned in clauses (a) to (f) of subsection (1) of Section 3 or under Section 7B of the old Act or on any ground mentioned in clauses (a) to (f) of sub section (2) of Section 20 during a period of two years from the date of such decree or order or any member of his family or any person of whose family he is a member;

(b) For residential accommodation of employees of business concerns who are allowed by their employers full reimbursement of house rent paid by them;

(c) For residential accommodation of a person already occupying a building governed by the Act or any public premises other than any premises granted to him free of rent in connection with the discharge of any duties of public nature and situated anywhere in the State or any member of the family of such person or any person of whose family he is a member, except where such person will vacate the other building or public premises at the time of allotment;

(d) For accommodating a person who has entered into unauthorized occupation of the building or any part thereof without the written consent to the landlord.]

(6) A person who is deemed to have ceased to occupy a building within the meaning of Section 12 (1)(b), or who is evicted under Section 21 by virtue of being a tenant referred to in Explanation (1) of Section 21(1) shall not be allotted that or any other residential building and 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 nonresidential building for a period of two years from the date of such eviction or deemed cessation, as the case may be:

Provident 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 nonresidential building in question afresh to the newly constituted or reconstituted firm;

(b) in the case of a residential building under the tenancy of a person who shall be deemed by virtue of Section 12(3) to have ceased to occupy it by reason of his or any member of his family building or otherwise acquiring in a vacant state or getting vacated another residential building in the same local area, whether that other building is built or acquired or got vacated before or after the date of commencement of the Act, if the District Magistrate is satisfied that the two buildings are occupied by the tenant and a member of his family separately, and that they are separate in messing, the District Magistrate may reallot the residential building deemed to be vacant under Section 12 (4) to the said tenant or to the said member of his family, as the case may be;

(c) in the case of a residential building under the tenancy of a person who shall be deemed by virtue of the proviso to Section 12 (3) to have ceased to occupy it upon the expiration of a period of one year from the date of commencement of the Act by reason of his or any member of his family having built another residential building in the same local area, where that other building was let out at the commencement of the Act and the tenant or the member of his family, as the case may be, has been unsuccessful in spite of his best efforts in securing vacant possession thereof the District Magistrate may postpone the making of allotment order in respect of the building deemed to be vacant under Section 12 (4).

(7) The power of the District Magistrate under Section 17 (1) to disregard the nomination by the landlord in the event of the District Magistrate''s failure to make the allotment order within twentyone days from the date of receipt of intimation of vacancy of expected vacancy of a building shall be exercised very sparingly and only when for a public purpose of an urgent nature, the District Magistrate considers it necessary so to do.

(8) In making allotment of nonresidential buildings, regard shall be had to be following guidance principles which shall not be departed from save for exceptional reasons to be recorded in writing:

(a) No allotment shall be made for vend of liquor or any other intoxicant.

(b) Preference shall be given to qualified technical personnel (such as medical or engineering graduates) who want to engage in selfemployment.

(c) Among persons desiring allotment of a building for business purposes preference shall be given to persons against whom an order has been passed for eviction from a nonresidential building under Section 21, not being tenants referred to in Explanation (1) of Section 21(1), or a decree has been passed in a suit filed with the permission of the District Magistrate under Section 3 of the old Act, and who or members of whose family do not own or hold as tenants any other nonresidential building in the same city, municipality, town area or notified area, and to persons not already running a business and who have secured or been assured of securing adequate financial assistance from the Government or the State Financial Corporation or from a banking company as defined in the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 for starting such business.

[(9) In the case of a building which was never let out before, the District Magistrate shall serve on the landlord a notice asking him within a month of service thereof whether he is willing to throw the building open for letting and if so, to nominate a person in whose favour the allotment may be made, and thereupon

(a) if the landlord intimates the District Magistrate within the said period that he does not want to let out the building, it shall not be allotted;

(b) if he intimates the District Magistrate within the said period his consent to letting and nominates a person in that behalf, the allotment shall be made in favour of that nominee;

(c) if the landlord falls to send you such intimation within the said time, it shall be open to the District Magistrate to allot the building to any person.

(10) If the building referred to in subrule (9) falls vacant at any time subsequently as a result of the tenant vacating it, the District Magistrate shall, if so requested by the landlord, allow him to occupy the same himself].�

Rule 13 of the Rules framed under the Act makes provision in regard to �application for release of vacant buildings.� The said Rule 13 is quoted below:

�13. Application for release of vacant buildings [Section 16 (1) (b)]. [(1) Every application for release under clause (b) of subsection (1) of Section 16 shall specify the ground or grounds on which the building or part thereof or any land appurtenant thereto is sought to be released.

(2) The application or any objection thereto shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908. If there are more than one landlords or alleged tenants, as the case may be, the application may be signed by one of them, but in any such case the colandlords shall be arrayed as proforma opposite parties.

(3) Where the application referred to in subrule (1) is made on the ground that the building is required for demolition and new construction the procedure laid down in Rule 17 shall mutatis mutandis be followed.

(4) Every application under this rule shall, as far as possible, be decided within one month from the date of its presentation, and no allotment in respect of a building covered by an application under this rule shall be made unless such application has been rejected.]�

The aforesaid provisions of the Act and the Rules have been the subjectmatter of various judicial decisions. The judicial decisions, which are relevant in the present context, are being referred to hereinafter.

In Yogendra Tiwari v. District Judge, Gorakhpur and others, AIR 1984 Supreme Court 1148 : (1984) 2 SCC 728, their Lordships of the Supreme Court laid down as follows (paragraph 5 of the said AIR):

�(5) It is needless to stress that the making of an order of allotment by the District Magistrate under Section 16 (1)(a) of the Act consists of two stages. The first stage is actual vacancy of a building or a part thereof in consequence of an intimation given by the landlord or the tenant under Section 15, or a declaration of deemed vacancy of such building or part thereof under Section 12 (4). It is a clear from the terms of the proviso to Section 16 (1) that in the case of a deemed vacancy under Section 12 (4) of the Act, the District Magistrate is required to give an opportunity to the landlord or the tenant, as the case may be, of showing that no declaration of deemed vacancy under Section 12 (4) could at all be made in his case before making an order of allotment under Section 16 (1)(a). The use of the word `shall'' in the proviso to Section 16 (1) makes the requirement mandatory. The District Magistrate, therefore, cannot make an order of allotment under Section 16 (1)(a) on the strength of deemed vacancy under Section 12 (4) until the landlord or the tenant, as the case may be, has an opportunity of being heard in the matter. The District Magistrate is required in terms of Rule 8(2) to give an opportunity to the landlord to file his objection or make his submission, if any, to the making of an order of allotment under Section 16(1)(a). In the case of deemed vacancy referred to in Section 12 (4), he is entitled to show that none of the clauses (a) to (c) of Section 12(1) comes into play. The second stage is reached when there is a deemed vacancy under Section 12(4) or actual vacancy in consequence of an intimation under Section 15. Under Rule 9(3) the District Magistrate is required to serve a notice on the landlord intimating of the date on which the question of allotment will be considered. The landlord may, in response to the notice issued to him under Rule 9(3), make out a case for release of the building or a part thereof or any land appurtenant thereto, for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, calling et cetera. The landlord has clearly a right to have an order passed by the District Magistrate under Section 16(1)(b) for the release of the building or a part thereof for any of the purposes set out in Section 16(2). The District Magistrate may release the building or part thereof or any land appurtenant thereto under Section 16(1)(b) where any of the aforesaid conditions are proved to exist to his satisfaction. It the landlord fails to satisfy the District Magistrate on any of these aspects, the District Magistrate would reject his application for release and proceed to make an order of allotment under Section 16(1)(a). The proviso to Section 16(1) has been introduced to meet with the requirements of principles of natural justice. As vacancy, actual, expected or deemed is a jurisdictional fact for the making of an order of allotment under Section 16(1)(a) or for an order of release under clause (b) thereof, the District Magistrate must follow the procedure prescribed under the Act and the Rules framed thereunder. Even in the absence of these provisions, viz. proviso to Section 16(1) and Rules 8 (2) and 9(3) of the Rules, framed under Section 41 of the Act, the principle of audi alteram partem would clearly be applicable. The District Magistrate in making an order of allotment under clause (a) or an order of release under clause (b) of Section 16(1) clearly exercise a quasijudicial function and therefore, he has the duty to hear. There must an impartial objective assessment of all the pros and cons of the case after due hearing of the parties concerned. The impugned order of allotment passed by the Rent Control and Eviction Officer having been made without affording to the appellant an opportunity to have his say in the matter was clearly a nullity.� (Emphasis supplied)

In Talib Hasan and another v. 1st Additional District Judge Nainital and others, 1986 (1) ARC 1 (FB), a Full Bench of this Court laid down as follows (paragraphs 26, 27, 28 and 29 of the said ARC):

�(26) The right of a prospective allottee is not an absolute right. It is contingent upon, firstly, the accommodation being vacant and, secondly the building being available for allotment. Rule 13(4), as it stands, at present reinforces this conclusion. It provides that no allotment in respect of a building covered by an application under Section 16(1)(b) shall be made unless such application is rejected. The right of prospective allottee to have his application considered hence arises only after the rejection of the landlord''s application under Section 16(1)(b). A fortiori the prospective allottee comes into the picture only after the disposal of the landlord''s application for release under Section 16 (1)(b), and, only if the same is rejected.

(27) So far, therefore, as the scheme of the Act and the rules framed thereunder is concerned, the same, in our opinion, clearly points to the conclusions that a prospective allottee has no right of objection against the release application filed under Section 16(1)(b). As mentioned above, this right to have this application considered for allotment, accrues only after the rejection of the release application. Indeed the consideration of the applications for allotment is taken up only after the rejection of the application under Section 16(1)(b). Neither the Act nor the rules framed thereunder thus postulate any right in a prospective allottee to file objections against the release application.

(28) The prospective allottee has also no right or interest in the property or claim against the landlord so as to be entitled to any hearing in the disposal of the release application on general principles or doctrine of audi alteram partem.

(29) We have reached the above conclusion on a systematic analysis of the statute even without the aid of the old Rule 13(4). The old Rule 13(4), in our opinion, which was dropped in 1977, merely recognized the long settled legal position as spelled out by series of decisions rendered on the construction and scope of Rule 5 framed under the 1947 Act. It was purely declaratory in nature and appears to have been inserted by way of reiteration of the existing legal position. Its deletion hence did not, in our considered, view, bring about any change in the legal position, namely, that prospective allottee have no locus standi in the disposal of an application for release under Section 16(1)(b)�.

(Emphasis supplied)

In Swaroop Narain Srivastava v. IVth Additional District Judge and others, 1994 (2) ARC 407 (S.C.), their Lordships of the Supreme Court laid down as follows (paragraph 8 of the said ARC):

�(8) When Rule 10 of the Rules which provides for allotment procedure is seen, nowhere it is provided that an application for allotment of a vacant building should be considered in preference to the application made for release of the vacant building by the landlord. On the other hand, Rule 13 which provides, the procedure for consideration of the application made for release of a vacant building by the landlord, by its subrule (4) requires that landlord''s application for release under the Rules shall, as far as possible, be decided within one month from the date of tits presentation and no allotment in respect of a building covered by an application in that Rule shall be made unless such application has been rejected. Thus, when the subrule (4) of Rule 13 expressly states that unless an application made by the landlord for release of a vacant building is rejected, no allotment of the vacant building covered by that application could be made, it in terms requires consideration of the application for release of vacant building at the first instance in preference to other application for allotment. Therefore, it must be held that the Rules requires the consideration of the application for release made by the landlord in respect of the vacant building and decision thereon in preference to consideration of any other application for allotment or reallotment made in respect of that vacant building. If that be our answer to the question under consideration the orders of the District Court and the High Court appealed against in this appeal become unsustainable and require to be interfered with�.

(Emphasis supplied)

In Vijay Kumar Sonkar v. Incharge District Judge and others, 1995 (2) ARC 1 (S.C), their Lordships of the Supreme Court upheld the Full Bench decision of this Court in Talib Hasan case (supra) and held as follows (paragraph 2 of the said ARC):

�(2) The distinction between the two orders envisaged in subsection (1) is well marked. In the case of an allotment order the result is brought about by a dialogue between the prospective tenant and the District Magistrate, thereafter, under whose orders the landlord is required to let any building to the prospective tenant. On the other hand in the case of a release order the dialogue takes place between the District Magistrate and the landlord and the prospective tenant does not figure in it at all. The allotment order and the release order, as the case may be, being mutually exclusive, have separate areas of operation permitting no encroachment of one over the other. The mere fact that the focal point is the District Magistrate from whom flow the respective orders is of no consequence. It is on this understanding of the law that the High Court relying on its Full Bench decision in the case of Talib Husain v. Ist Addl. District Judge, 1986 (1) ARC 1 (SC): 1986 SCFBRC 369 (Alld) (FB): AIR 1986 Alld 196 (FB): 1986 All LJ 845 (FB), rejected the prayer of the prospective tenant that he had a right to be heard in a release application of the landlord based as it was on the provisions of subsection (2) of Section 16 on ground of bona fide requirement. On the allowing of the release application the premises in question ceased to be allotable and since the District Magistrate, thereafter would have no jurisdiction to make an allotment thereof and the prospective tenant consequently has no right to resist the landlord in release proceedings. The view of the High Court seems to us to be correct in the circumstances of the case as also in law because as of today no allotment order subsists in favour of the appellant and yet he continues to be in possession. The appeal, is therefore, dismissed. The appellant is directed to vacate the premises within one month. It is made clear that he is not debarred from seeking another allotment order of any other premises if he has any such right in accordance with law. The appellant shall pay costs to the respondents throughout which we quantity at Rs. 5,000.�

(Emphasis supplied)

In Ram Narayan Sharma v. Shakuntala Gaur, 2002 (1) ARC 1(S.C), their Lordships of the Apex Court held as follows (paragraph 12 of the said ARC):

�(12) In the writ petition the High Court found the appellant was rightly treated as a prospective allottee and the need of the landlady having been found to be bona fide by the revisional Court, it committed no error in releasing the accommodation in her favour. So far the legal position is concerned, we feel that there is hardly any doubt that a prospective allottee shall have no right to oppose an application for release moved by the landlord. The need of the landlord is bona fide or not is a matter for satisfaction, of the District Magistrate and on being so satisfied, an order of release can be passed. The release application is to be disposed of first before passing an order on the application for allotment.� (Emphasis supplied)

In Achal Singh, Advocate v. IIIrd Additional District Judge, Fatehpur and others, 1987 (2) ARC 88, a learned Single Judge of this Court held as follows (paragraph 25 of the said ARC):

�(25) The issue of considering vacancy is primarily a matter between the landlord and the District Magistrate, when a release application of the landlord is pending consideration. A prospective allottee seeking an allotment order comes to the picture only after the release application of the landlord is decided. The release application ought not to be considered simultaneously with an application of a prospective allottee seeking allotment. The approach has been prescribed by the Full Bench decision of this Court in re Talib Hasan v. Ist Additional District Judge, Nainital, AIR 1986 Alld. 196 (FB) : 1986 (1) ARC 1 (FB). The Prescribed Authority, thus proceeded illegally in deciding the release application of the landlord simultaneously with allotment application of the petitioner, a prospective allottee.� (Emphasis supplied)

In Naubat Ram Sharma v. Additional District Judge IXth, Moradabad and others, 1987 (2) ARC 121, a learned Single Judge of this Court opined as follows (paragraph 19 of the said ARC):

�(19) On an analysis of Section 16 of Act as well as the authorities mentioned above, it is clear that the District Magistrate, while considering an application for release under Section 16 of the Act, has to consider only whether the building sought to be released is bona fide required by the landlord or not. He has also not to consider as to whether the accommodation already in occupation of the landlord was sufficient for his needs or not. Every owner of a building has a right to occupy his own building and, as such, the legislature contemplated that when the building is vacant or is likely to fall vacant and the landlord requires the said building for his bona fide need then the said building should be released to the landlord. This is the sole consideration which has to weigh with the District Magistrate when he takes up the release applications under Section 16 of the Act for consideration.�

(Emphasis supplied)

In Brij Pal Singh v. Ist Additional District Judge, Muzaffarnagar and others, 1992 (1) ARC 174, a learned Single Judge of this Court held as follows (paragraph 4 of the said ARC):

�(4) As regards the merits of the case, the release of the accommodation in dispute in favour of the landlord after the order declaring the vacancy has become final, the petitioner, who was treated to be an unauthorized occupant without an order of allotment in occupation of the premises, cannot be treated to be an aggrieved person so as to challenge the order releasing the premises in favour of the landlord. The petitioner cannot be allowed to contest the release application under Section 16(1)(b) of the Act as it is mainly a matter to be considered between the landlord and the Rent Control authorities (Refer Talib Husain and another v. Ist Additional District Judge, Nainital and others, 1986 (1) ARC 1 (FB).� (Emphasis supplied)

In Ravi Prakash Gupta alias Munna v. Ram Lal Khare and others, 1992 (2) ARC, 264, a learned Single Judge of this Court laid down as follows (paragraph 7 of the said ARC):

�(7) In my opinion, the order of the Rent Control and Eviction Officer disposing both the release application of the landlord and the allotment application of the prospective allottee is not in accordance with law and the order was passed in utter disregard to the law laid down in the case of Achal Singh v. IIIrd Additional District Judge, Fatehpur and others, 1987 (2) ARC 88. In any view of the matter, the case has to be sent back to the Rent Control and Eviction Officer to decide the applications separately in accordance with law. It is also correct that the prospective allottee cannot file objections against the release application of the landlord and the same cannot be considered. As regards the finding of the learned Judge that the petitioner being an unauthorized occupant, his application for allotment is not liable to be considered, cannot be approved on the facts and circumstances of the case. The petitioner being the only contesting prospective allottee, in my opinion, in case the release application of the landlord is dismissed, the allotment application of the petitioner deserves to be considered on merit under peculiar circumstances of the case.� (Emphasis supplied)

In R.S. Misra and another v. IVth Additional District Judge, Bareilly and another, 1992 (1) ARC 405, a learned Single Judge of this Court laid down as under (paragraph 11 of the said ARC):

�(11) Learned Judge further held that in view of the provision of Talib Hussain''s case (supra) the right of prospective allottee is not absolute right and it arises only after the rejection of landlord''s application for release of the accommodation. The prospective allottee cannot be permitted to participate in consideration of the release application of the landlord under Section 16(1)(b) of the Act. In my opinion these findings recorded by the learned Fourth Additional District Judge are absolutely in accordance with the law and do not suffer from any illegality or infirmity.� (Emphasis supplied)

In Ved Prakash v. VIIIth Additional District Judge, Ghaziabad and others, 1993 (1) ARC 442, a learned Single Judge of this Court held as follows (paragraph 6, 7, 8, 9 and 10 of the said ARC):

�(6) A Full Bench of this Court in its decision in the case of Talib Hasan and another v. Ist Additional District Judge and others, 1986 (1) ARC 1 (FB), had after carefully considering the various provisions of the U.P. Act No. 13 of 1972 and the rules framed thereunder had observed that an application for release under Section 16(1)(b) of U.P. Act No. 13 of 1972 is a matter between the District Magistrate and the landlord in which the outgoing tenant or the prospective allottee does not have any right to object. It had further been observed that the prospective allottee comes into the picture only after the disposal of the landlord''s application for release under Section 16(1)(b) and only if the same is rejected. The Full Bench went on to observe that the prospective allottee has no right or interest in the property or claim against the landlord so as to be entitled to any hearing in the disposal of the release application and has no right to be heard in opposition to such an application.

(7) This Court had clarified in its decision in the case of Naubat Ram Sharma v. Additional District Judge, Moradabad and others, reported in 1987 (2) ARC 121, that every owner of a building has a right to occupy his own building and as such, the legislature contemplated that when the building is vacant or is likely to fall vacant and the landlord required the said building for his bona fide need then the said building should be released to the landlord and that this is the sole consideration which has to weigh with the District Magistrate when he takes up the release applications under Section 16 of the Act for consideration.

(8) It may, further be noticed that decision in the case of Radhey Lal v. District Judge, Jhansi and others, 1990 (2) ARC 540, this Court had upheld the rejection of a revision under Section 18 of the U.P. Act No. 13 of 1972 at the instance of a prospective allottee holding it to be not maintainable as he had no right or interest in the subjectmatter of the lis between the District Magistrate and the landlord in the matter of release contemplated under Section 16 of the Act. Again in its decision in the case of Smt. Krishna Rani, 1990 (1) ARC 442, it was held that a prospective allottee has not locus standi to be heard in the matter of release contemplated under the aforesaid provision.

(9) In the circumstances, therefore, it is obvious that the mere fact that subsequent to the rejection of an application for release the Rent Control and Eviction Officer passed an order of allotment in favour of a prospective allottee such an order of allotment can be of no avail so as to vest the prospective allottee with a right of being heard in the matter of release of an accommodation contemplated under Section 16 of the Act which is taken up in revision under Section 18 of the said Act. The lis between the District Magistrate representing the State and the landlord so far as the matter of release of the accommodation declared to be vacant is concerned becomes pending when the revising authority entertains the revision against the order rejecting the application for release and in this matter the prospective allottee cannot be deemed to be entitled to have any right of being heard and his position remains the same as it was prior to the passing of the order of allotment. The Full Bench was quite emphatic when it pointed out that the application for release under Section 16(1)(b) of the Act is a matter between the District Magistrate and the landlord in which the outgoing tenant or the prospective allottee does not have any right to object. Since the order of allotment has to fall with the reversal of the order rejecting the application for release, it is obvious that the position of a prospective allottee cannot improve simply because proceeding on the basis of an erroneous order rejecting the release application, the Rent Control and Eviction Officer has passed an order of allotment in favour of such a prospective allottee.

(10) Having regard to the Full Bench decision of this Court and the order decisions to which a reference has been made above, I do not find any justifiable ground to interfere in the impugned order in the exercise of the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India at the instance of the petitioner whose status so far as the proceedings for release in question arising under Section 16 of the U.P. Act No. 13 of 1972 cannot be above that of an unauthorized occupant and a prospective allottee.� (Emphasis supplied)

In Jaswant Singh v. Additional District Judge, Dehradun and others, 1993 (2) ARC 91, a learned Single Judge of this Court held as follows (paragraph 20 of the said ARC):

�(20) However, the petitioner insisted that the revision filed by him against the order of release was maintainable at his instance and in the revision he could assail the order passed by the Rent Control and Eviction Officer declaring the vacancy. Suffie it to say in this onnection that this Court has repeatedly held that no revision lies against an order declaring the vacancy. This Court has further held that an unauthorized occupant has no locus standi in the matter of release. See Ved Prakash v. VIIIth Additional District Judge, Ghaziabad, 1993(1) ARC 442; Naubat Ram Sharma v. Additional District Judge, Moradabad, 1987 (2) ARC 121; Sushil Kumar Gupta v. IInd Additional District Judge, reported in 1992 (1) ARC 503; Smt. Kunti Devi v. IInd Additional District Judge, reported in 1992 (1) ARC 266. However, the revision filed by the petitioner was dismissed. Even if it be assumed that the revision was maintainable at the instance of the petitioner in that event after its dismissal the question of considering the review on merit could not arise in any view of the matter.� (Emphasis supplied)

In Brij Bhushan Lal Srivastava v. Xth Additional District Judge, Varanasi and others, 1994 (1) ARC 175, a learned Single Judge of this Court held as follows (paragraph 5 of the said ARC):

�(5) Learned counsel for the petitioner urged that the petitioner was inducted as a tenant of respondent No. 2 and he was in actual possession. He had a right to participate in the proceedings and contest the release application, but respondent No. 1 acted illegally in holding that the petitioner has no right to contest the release application filed by respondent No. 2. Admittedly, there was no allotment order in favour of the petitioner and no valid tenancy rights were existing in his favour. He had himself filed an application for allotment treating the accommodation as a vacant. The allotment order could not have been passed unless the release application was finally rejected by the authority concerned. In Talib Hussain and another v. First Additional District Judge, Nainital and others, 1986 (1) ARC 1 (FB), it has been held that a prospective allottee has not right to file objection and contest release application filed by the landlord under Section 16 (1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).� (Emphasis supplied)

In Khursheed Khan v. Special Judge (Additional District Judge), Nainital and others, 1996 (2) ARC 449, a learned Single Judge of this Court held as follows (paragraphs 10 and 11 of the said ARC):

�(10) The third submission of the learned counsel for the petitioner is that he should be given an opportunity to lead evidence that the landlordrespondents do not require the disputed accommodation. The petitioner has been found to be in unauthorized occupation by the Rent Control and Eviction Officer. He has no right to contest the release application filed by the landlords under Section 16(1)(b) of the Act. A Full Bench of this Court in Talib Hasan and another v. Ist Additional District Judge, Nainital and others, 1986 (1) ARC 1, held that a prospective allottee has not right to contest the release application filed by the landlord under Section 16(1)(b) of the Act. This view of the Full Bench has been affirmed by the Supreme Court recently in Vijai Kumar Sonkar v. Incharge District Judge and others, 1995 (2) ARC 1.

(11) In fact the petitioner has no right to challenge the order of release passed in favour of the landlords under Section 16(1)(b) of the Act. In Ved Prakash v. XIIIth Additional District Judge, Ghaziabad and others, 1993 (1) ARC 442; it was held that a prospective allottee has no locus standi to challenge the order releasing the accommodation in favour of the landlord.� (Emphasis supplied)

In Ram Narain Sharma v. VIIth Additional District Judge, Muzaffnagar and others, 1997 (1) ARC 348, a learned Single Judge of this Court opined as follows (paragraph 8 of the said ARC):

�(8) It is also noticed that the petitioner is merely a prospective allottee. After allotment order in his favour is set aside what is to be seen is as to whether he has any legal right to challenge the order passed on release application. A Full Bench of this Court reported in 1986 (1) ARC 1, Talib Hasan and another v. Ist Additional District Judge, Nainital and others, has held that a prospective allottee has no right to challenge the order that may be passed by the Rent Control and Eviction Officer in proceeding of release under Section 16(1)(b) of the Act. The decision has been followed by this Court in other subsequent decision, reported in 1996 (1) ARC 505, Khursheed Khan v. Special Judge (Addl. District Judge), Nainital and others. The same principle which has been laid down in the Full Bench of the case of Talib Hasan clearly prevents the petitioners from challenging the order impugned in write petition.�

(Emphasis supplied)

In Dev Raj Singh Chauhan v. Ist Additional District Judge, Ghaziabad and others, 1997 (1) ARC 590, a learned Single Judge of this Court held as follows (paragraph 7 of the said ARC):

�(7) It is well settled in law that a prospective allottee has got no right to object or contest the release application as the matter of release is a matter between the landlord and the District Magistrate. A reference in this regard may be made to the Full Bench decision in Talib Hasan v. Ist Additional District Judge, Nainital and another, 1986 (1) ARC 1, which was approved by the Supreme Court in Vijai Kumar Sonkar v. Incharge District Judge and others, 1995 (2) ARC 1.� (Emphasis supplied)

In Ramesh Chandra Srivastava v. XIIth Additional District Judge, Kanpur and others, 1997 (1) ARC 336, a learned Single Judge of this Court held as follows (paragraph 7 of the said ARC):

�(7) Sri Rajesh Tandon, appearing for the respondent, contended that the petitioner who is an unauthorized occupant and whose earlier writ petition was dismissed holding the petitioner to be so has no right to be heard in proceedings for release of the accommodation. He placed reliance on Talib Hasan v. Ist Additional District Judge, 1986 (1) ARC 1 (FB), in which this Court categorically held that a prospective allottee has no right to be heard in connection with the landlord''s application for release. This view has been upheld by the Hon''ble Supreme Court in Vijai Kumar Sonkar v. Incharge District Judge, 1995 (2) ARC 1. Thus, it is settled law that a prospective allottee has no right to be heard in opposition to the landlord''s application for release. It is true that the petitioner is in possession for a long time. He having been held to be in unauthorized occupation and the declaration of vacancy having been up held, his possession is no better than of a prospective allottee. He, therefore, cannot challenge, the release of the accommodation in favour of the landlady. Consequently, this writ petition has no force and is hereby dismissed.�

(Emphasis supplied)

In Leelawanti (Smt.) and another v. Incharge District Judge, Kanpur Nagar and others, 2001 (2) ARC 110, a learned Single Judge of this Court laid down as follows (paragraph 6 of the said ARC):

�(6) As against this learned counsel for the respondent No. 3 has referred to number of cases in which it has been laid down that the prospective allottee cannot dispute the release application nor can challenge it by way of revision or writ petition. In the case of Swaroop Narain Srivastava v. IVth Additional District Judge, (1994) 5 Supreme Court Cases 504: 1994 (2) ARC 407 (SC), it was observed that when application made by landlord for release of his vacant building as well as by former tenant for reallotment thereof. It was held that the landlord''s application must be considered in preference to tenant''s application. The other case referred to is Smt. Krishna Rani v. District Judge, Dehradun, 1990 A.W.C. 894: 1990 (1) 442, wherein it was observed that the prospective tenant''s objection cannot be considered in an application for release. It was further observed that the prospective allottee has no locus standi to be heard. In Baboo Mohd. Yaqood v. R.C. & E.O., 1987 (2) A.R.C. 84, it was held that the prospective allottee has no right to participate in the release proceedings.� (Emphasis supplied)

In R.K. Parasher case (supra) relied upon by the learned counsel for the petitioner, their Lordships of the Supreme Court dealt with the scope of Rule 10(5)(d) of the Rules framed under the Act, and laid down as under (paragraphs 13 and 14 of the said ARC):

�(13) First, we shall take up the question of disqualification of respondent No. 1 Clause (d) of subrule (5) of Rule 10 of the Rules mandates not to allot a building to accommodate a person who had entered into unauthorized occupation of the building or any part thereof without the written consent of the landlord. It would be appropriate to note here that Section 13 of the Act says that where a landlord or a tenant ceases to occupy a building or part thereof no person shall occupy it in any capacity on his behalf otherwise than under an order of allotment or release under Section 16 of the Act and if a person so purports so to occupy it he shall without prejudice to the provisions of Section 31 of the Act be deemed to be an unauthorized occupant of such building or part. Section 31 of the Act provides penalties which can be imposed on any person who contravenes any of the provisions of the Act or any order made thereunder; even an attempt or abetment of such contravention is also made punishable. On conviction, an offender may be sentenced to imprisonment which may extend to six months of fine which may extend Rs. 5,000 or both. There can be no doubt that a person who has occupied a premises without the permission of the landlord is an unauthorized occupant, a trespasser. The rule making authority is presumed to be aware of two categories of the unauthorized occupation of a building: (i) otherwise than with the written consent of the landlord and (ii) otherwise than under an order of allotment or release. But the scheme of Rule 10 (5)(d) of the Rules suggests that the rule making authority has condoned the authorized occupant so declared under Section 13 of the Act and has taken note of only an authorized occupant of a building without the consent of the landlord. Under that rule it is only when a person has entered into unauthorized occupation of the building or any part thereof without the written consent of the landlord then ordinarily the building shall not be allotted to him.

(14) In the instant case, admittedly, respondent No. 1 had the consent of the landlord, nay he is in collusion with the landlord as found by the District Supply Officer but that by itself would not disentitle him to stand a chance of being considered for purposes of allotment in view of the language of clause (d) of the Rules. The position is that he would neither have any preference on account of being in occupation of the shop nor will he incur any disqualification for having violated Section 13 of the Act. Thus, his claim cannot be brushed aside on the ground of an unauthorized occupant as he has incurred no disqualification under clause (d) of the Rules.�

It is noteworthy that subrule (5) of Rule 10 of the Rules provides that a building shall not ordinarily be allotted to the persons or for the purposes mentioned in various clauses of the said subrule (5) of Rule 10. It is evident, therefore, that subrule (5) of Rule 10 will come into play only when the stage for consideration of the applications for allotment is reached. As will be evident from various propositions mentioned hereinafter deduced from the decisions referred to above, the application for the release filed by the landlord under Section 16(1) (b) of the Act in respect of building/accommodation declared to be vacant, is to be considered first. It is only when the release application filed by the landlord under Section 16(1)(b) of the Act is rejected, that the stage for considering the applications for allotment is reached. It is at this stage of consideration of the applications for allotment that subrule (5) of Rule 10 of the Rules framed under the Act comes into play. In the present case, as noted above, the release application filed by the respondent No. 3/landlord has already been allowed by the District Supply Officer/Delegated Authority, Meerut, and, therefore, there is no occasion to consider any application for allotment. Consequently, the provisions of subrule (5) of Rule 10 of the Rules do not come into play in the present case. In view of this, in my opinion, the decision of the Supreme Court in R.K. Parasher case (supra) relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case.

In Nanak Ram case (supra), their Lordships of the Supreme Court laid down as follows (paragraph 12 of the said AIR):

�(12) Now, in deciding Murlidhar Agrawal, AIR 1974 Supreme Court 1924, (supra) this Court approved of the proposition of law laid down by the Allahabad High Court in Udhoo Das, AIR 1964 All 1, (FB) (supra). The High Court had the provisions of Section 7 and Section 7A of the U.P. Rent Act before it. Section 7 required the landlord to report to the District Magistrate if his house had fallen vacant or was about to fall vacant, and thereupon the District Magistrate was empowered to direct the landlord to let the premises to a person specified in the order. The High Court dealt with the question whether a lease between the landlord and another person in violation of the order of the District Magistrate would be a valid lease as between the parties thereto. It held that such a lease would be valid between the parties. It would not, however, be binding on the District Magistrate. That it would not be binding on the District Magistrate was evidenced by the power conferred upon him under Section 7A (1) of the U.P. Rent Act to take proceedings for the eviction of such tenant. Section 7A (1) provided that if the vacancy of an accommodation was not reported or a person occupied an accommodation in contravention of an order issued under Section 7 (2) the District Magistrate could require him to show cause why he should not be evicted from it. If he failed to show cause the District Magistrate could direct him to vacate the accommodation and if he failed to vacate the District Magistrate could use force to evict him. The power conferred on the District Magistrate to take proceedings for the eviction of such tenant was discretionary. It was open to the District Magistrate not to exercise the power if there was undue delay or if for other good reason he found it in expedient to do so. If he did not exercise the power conferred by Section 7A (1), the lease between the landlord and the other person would continue to subsist and that other person would continue to enjoy the status of a tenant. It would be a valid lease. It could not be regarded as a viod lease. In a case under the Rent Control Officer, with which these appeals are concerned, the position appears to be materially similar. The landlord is prohibited by Clause 22(1) from occupying the house or granting a lease except in accordance with Clause 23. There is a prohibition under Clause 22(2) on any other person seeking to occupy the house, except again in accordance with Clause 23. In Clause 23 it is the Deputy Commissioner who will order the landlord to let the vacant house to a person indicated by him, a person who falls in one of the categories specified in the clause or, if he is satisfied, he may permit the landlord himself to occupy the house. As was the position under the U.P. Rent Act, so also under the Rent Control Order, the Deputy Commissioner has power under Clause 28 to take steps and use force for the purpose of securing compliance with or for preventing or rectifying, any contravention of the Rent Control Order. Clause 28 speaks of a power conferred on the Deputy Commissioner in that behalf. Nowhere does the Rent Control Order mandate that the Deputy Commissioner must eject a person who has entered into possession of a house in violation of Clause 22. If upon a view of the circumstances prevailing then, the Deputy Commissioner takes no action in the matter, there is no reason why the lease between the landlord and the tenant, although inconsistent with Clause 22, should not be binding as between the parties thereto. It is not a vaid transaction. There is nothing in the Rent Control Order declaring it to be so. Now if the lease is not vaid then it is not open to either party to avoid the lease on the ground that it is inconsistent with Clause 22. The parties would be bound, as between them, to observe the conditions of the lease, and it cannot be assailed by either party in a proceeding between them.� (Emphasis supplied)

In Nutan Kumar and others v. 2nd Additional District Judge and others, AIR 2002 Supreme Court 3456, their Lordship of the Supreme Court overruled a Full Bench decision of this Court in Nutan Kumar & others v. IInd Additional District Judge, Banda and others, AIR 1994 All 298, and followed the decision of the Supreme Court in Nanak Ram case (supra), their Lordships laid down as follows (paragraphs 11, 12 and 13 of the said AIR):

�(11) It is thus to be seen that the principles laid down in Nanakram''s case still hold the field. There is no contrary or conflicting decision or authority. The Full Bench was bound by the authority in Nanakram''s case and could not have taken a contrary view.

(12) As Nanakram''s case was decided by three Hon''ble Judges of this Court, it would also be binding on us. We are, therefore, not going into the question of correctness or otherwise of such a view. We may however mention that the impugned judgment dated 20th May, 1993, of the Full Bench, is not correct for another reason also. Section 13 of the said Act specifically provides that a person who occupies, without an allotment order in his favour, shall be deemed to be an unauthorized occupant of such premises. As he is in authorized occupant he is like a trespasser. A suit for ejectment of a trespasser to get back possession from a trespasser could always be filed. Such a suit would not be on the contract/agreement between the parties and would thus not be hit by principles of public policy also.

(13) In this view of the matter the decision of the Full Bench dated 20th May, 1993 cannot be sustained and is set aside. It is held that the law, as laid down Nanakram''s case, still holds the field. Thus unless the statute specifically provides that a contract contrary to the provisions of the statute would be void the contract would remain binding between the parties and could be enforced between the parties themselves. Consequently the judgment dated 20th September, 1993 dismissing the writ petition is set aside. The matter is sent back to the High Court for deciding the writ petition in accordance with law.� (Emphasis supplied)

In my opinion, following propositions, amongst others, may be deduced from an analysis of the aforesaid provisions of the Act and the Rules framed under the Act in the light of the above decisions in regard to a building/accommodation covered under the Act:

(1) There may be three kinds of vacancy in a building/accommodation:

(a) Actual vacancy;

(b) Expected vacancy or likely vacancy;

(c) Deemed vacancy.

Section 15 of the Act deals with actual vacancy and expected vacancy, while Section 12, particularly subsection (4) thereof, deals with deemed vacancy. This is evident from a perusal of various provisions of Chapter III of the Act, particularly Sections 12(4), 15, 16(1) and 17(1) thereof, as well as the provisions of Rule 9 of the Rules framed under the Act. This is also evident from the decision of the Supreme Court in Yogendra Tiwari case (supra).

(2) In case any of the aforesaid three kinds of vacancy has occurred in a building/accommodation, neither the landlord will occupy the same without release order under Section 16 (1) (b) of the Act, nor will any other person occupy the same without allotment order under Section 16(1)(a) of the Act. In case the landlord occupies such a building/accommodation without release order under Section 16 (1) (b) of the Act, or any other person occupies the same without allotment order under Section 16(1)(a) of the Act, then he will be an unauthorized occupant of such building/accommodation. This follows from a combined reading of Sections 11, 13 and 16 of the Act.

(3) (i) A landlord cannot let any building/accommodation to any person unless there is an allotment order in favour of such a person issued under Section 16(1)(a) of the Act.

(ii) If a landlord lets out a building/accommodation to a person without allotment order in favour of such a person, then such a person will be an unauthorized occupant.

(iii) However, if a person has been in occupation of a building/accommodation as a tenant with the consent of the landlord before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, that is before 571976, then the tenancy of such a person would stand regularized and he would be deemed to be an authorized tenant of the building/accommodation, provided the conditions laid down in Section 14 of the Act are satisfied.

(iv) In case a building/accommodation has been let out by landlord to a person without an allotment order in favour in favour of such a person, and Section 14 of the Act is not applicable to such a person, then such a person would be deemed to be an unauthorized occupant. Therefore, there would be deemed vacancy in such a building/accommodation in view of the provisions of Sections 11 and 13 read with Sections 12 (1)(b) and 12(4) of the Act.

(v) Even though a person covered under (iv) above would be an unauthorized occupant, and there would be deemed vacancy in the building/accommodation, but the contract of tenancy would be binding between the landlord such a person as tenant. This follows from the decisions of the Supreme Court in Nanak Ram case (supra) and in Nutan Kumar case (supra).

(vi) However, as there would be deemed vacancy in the building/accommodation in case falling under (iv) above, it would be open to the District Magistrate to declare such vacancy in respect of the said building/accommodation, and proceed to pass suitable order under Section 16 of the Act for release or allotment of such building/accommodation.

These conclusions follow from a combined reading Sections 11, 12, 13, 14 and 16 of the Act.

(4) (i) In case vacancy, actual or expected or deemed, has occurred in a building/accommodation, and the District Magistrate (or officer authorized by the District Magistrate) declares such vacancy in the building/accommodation after following the procedural requirements laid down in the relevant provisions of the Act and the Rules, then the landlord has a right to apply for the release of the building/accommodation under Section 16 (1) (b) of the Act. This is evident, inter alia, from the decision of the Supreme Court in Yogendra Tiwari case (supra).

(ii) If the landlord files release application under Section 16(1)(b) of the Act in respect of such building/accommodation, then such release application is to be decided first before any application for allotment of such building/accommodation is considered. Thus, the release application under Section 16(1)(b) of the Act has been given precedence over allotment applications. This follows, inter alia, from the decisions of the Supreme Court in Vijay Kumar Sonkar case (supra), Swaroop Narain Srivastava case (supra) and Ram Narayan Sharma case (supra), as well as the Full Bench decision of this Court in Talib Hasan case (supra).

(iii) The building/accommodation will be released in favour of the landlord if the District Magistrate is satisfied that the same is bona fide required by the landlord as per the requirements of Section 16(2) of the Act. At this stage, the matter is only between the District Magistrate and the landlord. Neither the outgoing tenant nor the prospective allottee has any locus standi at the stage of consideration of the release application of the landlord under Section 16(1)(b) of the Act. In other words, neither the outgoing tenant nor any prospective allottee can object to or contest the release application filed by the landlord. This follows, inter alia, from the decisions of the Supreme Court in Vijay Kumar Sonkar case (supra), Swaroop Narain Srivastava case (supra) and Ram Narayan Sharma case (supra), as well as the Full Bench decision of this Court in Talib Hasan case (supra).

(iv) In case the release application of the landlord under Section 16(1)(b) of the Act is allowed as mentioned in (iii) above, then there will be no occasion to consider any application for allotment. However, if the release application of the landlord under Section 16(1)(b) of the Act is rejected, then the question of considering the applications for allotment under Section 16(1)(a) of the Act arises.

From the aforesaid propositions it follows that in case a building/accommodation is declared to be vacant by the District Magistrate on account of actual vacancy or expected vacancy or deemed vacancy, then the landlord has a right under Section 16(1)(b) of the Act to get such building/accommodation released in his favour, and this right of the landlord gets precedence over applications for allotment under Section 16(1)(a) of the Act. In fact, as noted above, the outgoing tenant or the prospective allottee has no right to object to the release of such building/accommodation in favour of the landlord.

The statutory right given to the landlord under Section 16(1)(b) of the Act is available to the landlord in all kinds of vacancy whether actual or expected or deemed. This right is available to the landlord in all cases of deemed vacancy on whatsoever ground the same may arise. The legislature has not provided for any exception where the landlord may be deprived of his statutory right under Section 16(1)(b) of the Act.

Therefore, even if the landlord let out a building/accommodation to a person without allotment order in favour of such a person, and the building/accommodation is declared to be vacant on the said ground, then too the landlord would be entitled to exercise his right under Section 16(1)(b) of the Act to seek release of such building/accommodation. Such a landlord cannot be deprived of his statutory right under Section 16(1)(b) of the Act on the ground that he violated the provisions of the Act by letting out the building/accommodation without. When the legislature in its wisdom has not deprived such a landlord of his statutory right under Section 16(1)(b) of the Act, then he cannot be deprived of the said right on equitable considerations by exercising power under Article 226 of the Constitution of India. It is noteworthy that Section 31 of the Act provides for penal consequencies for contravening the provisions of the Act, but the Act nowhere deprives such a landlord of his statutory right under Section 16(1)(b) of the Act.

Hence, I am of the opinin that this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India cannot and should not issue writ depriving such a landlord of his statutory right under Section 16(1)(b) of the Act on the ground that he violated the provisions of the Act by letting out the building/accommodation without allotment order. When the legislature in its wisdom has not provided any such ground for taking away the said right of the landlord, then this Court cannot create/provide for any such ground for depriving the landlord of the said right on any equitable or moral consideration.

It may, however, be added that the District Magistrate while dealing with the release application of such a landlord under Section 16(1)(b) of the Act may take into consideration the fact of letting by the landlord without allotment order as one of the relevant factors in order to decide the question of bona fide requirement of the landlord as required under Section 16(2) of the Act. In other words, the said fact of letting by the landlord without allotment order may be taken into consideration by the District Magistrate as one of the relevant factors in order to decide whether the building/accommodation is bona fide required by the landlord as provided under Section 16(2) of the Act. However, the release application of such a landlord cannot be rejected at threshold without considering the same on merit on account of the fact of letting without allotment order.

In this connection, it is pertinent to refer to a decision of a learned Single Judge of this Court in Savendrapal Jaggi v. Additional District Magistrate (Civil Supplies), Meerut and another, 1993 (1) ARC 489 (paragraph 7 of the said ARC):

�(7) I have given my anxious consideration to the rival submissions made by the learned Counsel for the parties. It is true that respondent No.2 who joined petitioner in violating law and permitted him to occupy the premises in dispute as tenant on payment of rent, should not normally be allowed to take advantage of his own wrong by taking a turn that possession of petitioner is unauthorized and the accommodation should be released in his favour. In normal course he could get such relief by filing application under Section 21 of the Act but a close look at Sections 12 and 13 of the Act makes it clear that the vacancy in such circumstances is created by operation of law. The legislature has not left anything to be decided by Rent Control and Eviction Officer but to deem that there is a vacancy. Since it is not in dispute nor was it in dispute before the respondent No.2, in my opinion, he had no option but to declare the accommodation in dispute vacant. The effect of Section 12(1) and various subclauses of the Act to it is that in a building to which the provisions of the Act are applicable, vacancy has to be deemed in the circumstances mentioned therein. As the petitioner entered into possession without any allotment order under law his possession cannot be better than of an unauthorized occupant and it could also not improve on account of length of period he occupied it as such. From the very inception possession of the petitioner could only be unauthorized. It is wellestablished that there cannot be any estoppel against law. If in the admitted facts the effect of the law is that the premises shall be treated as vacant and open for allotment or release, it could not be ignored on account of conduct of respondent No. 2 on the basis of estoppel pleaded by the petitioner. In view of the nature of the provisions of the Act, in my opinion, the cases relied on by the petitioner are clearly distinguishable and do not help him in any manner. The discretionary power of the Rent Control and Eviction Officer shall commerce after declaration of vacancy as to whether in the facts and circumstances of the case placed and proved before him, the building in dispute should be released in favour of respondent No. 2 or it should be allotted to the petitioner or to any other claimant. The Rent Control and Eviction Officer while passing final order of release or allotment shall take into account all the circumstances narrated above including the conduct of respondent No. 2 in letting out the building in violation of law. In my opinion, so far as declaration of vacancy is concerned, the petitioner has not been able to make out any case for interference under Article 226 of the Constitution�.

(Emphasis supplied)

In view of the aforesaid discussion, I am of the opinion that the submissions of the learned counsel for the petitioner cannot be accepted.

Learned Counsel for the petitioner has relied upon the decision of a learned Single Judge of this Court (Hon''ble A.K. Yog, J.) in Jagdish case (supra), Ram Nath Sehgal case (supra), Ram Shanker Yadav case (supra) and Rafat Ahmad Jamal Alvi case (supra)

In Jagdish case (supra), the learned Single Judge laid down as follows (paragraphs 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the said ARC):

�(5) The landlord, respondent No. 3 simultaneously, it appears, filed an application for release under Section 16 of the Act taking advantage of the fact that the petitioner admitted him to be an unauthorized occupant of the accommodation in question since let out to him without an `Allotment Order'' under the Act and hence the accommodation was to be treated as vacant under the Act and thus landlord, with his ingenuity attempts to have the matter of release decided unilaterally between him and Rent Control and Eviction Officer (avoiding the Tenanttreating him as unauthorized occupant).

(6) The judgment and order dated 2271995/Annexure1 to the writ petition passed by the Judge, Small Causes Court shows that the tenantpetitioner had admitted that the petitioner took the accommodation in question as Tenant from the Landlord (Respondent No.3) as per agreement executed between him. The Landlord/Respondent No. 3 did not intimate vacancy and inducted the petitioner as Tenant. The petitioner also without obtaining an allotment order and in breach of provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) called the Act, took possession of the disputed accommodation and thus the petitioner accepted his status as an unauthorized occupant. On these pleading present petitioner (defendant in JSCC Suit) argued that he was not tenant and JSCC Court has no jurisdiction. The Court of Judge Small Causes, relying upon the decision in the case of Nootan Kumar v. Additional District Judge, 1993(2) ARC 204 (FB), held that the agreement executed between the Landlord and the tenant was in contravention of the statutory provisions of the U.P. Act No. XIII of 1972 and, consequently, the Court directed for returning the plaint to the petitioner landlord for being presented before Competent Court.

(8) This also shows that the Landlord (respondent No.3) did accept the petitioner his tenant and to whom he gave possession of the accommodation in question in contravention of the provisions of U.P. Act No. 13 of 1972.

(9) From the above, it is clear that both the petitioner and the respondent No. 3 colluded with each other, abetted with each other; in ''complicity'' to perpetuate ''fraud'' on law an their conduct is in clear breach of law. Respondent No. 3 letting out the accommodation and on the other hand petitioner taking it on rent in contravention of the mandatory provisions of U.P. Act No. XIII of 1972, both acted in breach of mandatory provisions of lawdeliberately failed to discharge their statutory obligation entering into a transaction prohibited by law. Both the parties are guilty of same offence and equally responsible and hence liable to suffer the consequences at par for their act of committing breach of the statutory provisions of the Act.

(10) In fact conduct of landlord is more reprehensible as compared to the tenant. In a transaction like the present, landlord is at an advantage and in a commanding position competent to dictate its terms visavis a prospective tenant (e.g., charging rent of his choice and exploiting helplessness of the other by not intimating vacancy to the Rent Control and Eviction Officer, deliver possession of the accommodation to a person who has no allotment order in his favour though he has no compulsions and avoiding jurisdiction of the Rent Control and Eviction Officer under Section 16 of the Act then in future get the accommodation declared vacant by putting forth prospective allottee as ''Proxy'' and then take recourse to a less rigorous provision of Section 16 of the Act, where matter is between landlord and Rent Control and Eviction Officer only of release.

(11) Courts cannot and should not come to the aid of a Landlord like respondent No. 3 and grant him premium out of his own wrong i.e. , entering into illegal transaction and on the other hand subjecting the ''tenant'' to suffer at all stages, i.e., before and after illegal transaction of letting. Tenant is ''shut out'' from claiming to be ''Tenant'' also excluded from seeking allotment when proceedings initiated under Section 16 of the Act. Landlord who is equally guilty in the same transaction cannot escape the consequences and shall be liable to suffer in proceedings for allotment under Section 16 of the Act. Release application at his instance is to be ignored. A presumption is to be drawn against him that he did not bona fide or genuinely require the accommodation be released.

(12) In order to strike a balance in equities in a matter where proposition of law laid down by Full Bench decision in the case of Nootan Kumar (supra) is applicable, the accommodation shall be treated ''vacant'' and inferred from the admitted ''bundle of facts'' of a particular case. A landlord who himself inducted a person as ''Tenant'' without complying with the provisions of the Act, acquiescence by conduct and principle of ''Estoppel'' shall be attracted against him.

(13) In my considered opinion in a case under Section 16 of the Act, if ratio of the case Nootan Kumar (supra) is attracted, the Rent Control and Eviction Officer will have no option but to proceed with ''allotment'' of such accommodation inasmuch as a ''landlord'' disentitles him to seek ''release'' of an accommodation let out against the provisions of the Act.

(14) Such a landlord stands disqualified by his conduct to seek relief of release under law. One who himself commits breach of a particular law cannot under principles of equity, complained of breach of said provisions of law by another and Court shall refuse to enforce the provision of the said Act for the benefit of such a defaulter. A landlord, having let out on accommodation without following and in breach of the mandatory provision of the Act, is to suffer and treated at par with his tenant, who is his partner in the illegal transaction/contract of tenancy brought into effect by hoodwinking the provisions of the Act. Landlord''s illegal act of letting in breach of the Act, is to be treated ''nonest'' and totally ignored, not an unrebuttable presumption to be raised from his conduct that he desired to let out without intimation of a ''Nominee'' treating the proceedings as if carried out an the date when landlord illegally himself clandestinely delivered possession to another person as ''Tenant'' such a Landlord, sails in the same boat as the Tenant; and if tenant is not to be heard, defaulting landlord is also to be kept away in proceedings under Section 16 of the Act.

(15) A landlord, guilty of acting in breach of the Act, is guilty of abuse of process of law. He is major gainer in the clandestine deal as compared to the tenant and hence must be placed at par in the same category as the defaulting tenant (calledunauthorized occupant). A tenant branded as unauthorized occupant, cannot be allowed to be dispossessed at the instance of defaulting landlord generally by proxy or by getting prosecutive allottees as thier proxy and then seek release treating the accommodation vacant under Section 16 of the Actavoiding release after contest with the tenant under Section 21 of the Act. Landlord in fact estopped by conduct having acquiesced to let out the accommodation.

(16) Consequently, I hold that the accommodation in question has been rightly declared as ''vacant'' on admitted facts between the parties. I find no manifest error apparent on the face of record. No interference is warrantial by this Court in exercise of its extraordinary discretionary jurisdiction under Article 226, Constitution of India.

(17) At this juncture Court takes note of the fact that the existing provisions of the Act declaring vacancy have failed to achieve the desired object and publication on Notice Board of the office of Rent Control and Eviction Officer is an eye wash entering in itself pitfalls to be exploited to ensure that concerned have no notice of the vacancy.

(18) The releaseorder in favour of the landlord with respect to the accommodation in question declared avoid. The Delegated Authority is directed(i) not to give effect to the said order of release passed in favour of the respondent No. 3; (ii) notify the vacancy on the Notice Board as contemplated under the Act; (iii) ''Vacancy'' of the accommodation in question to be published in two Newspapers (one Hindi and one English) having wide circulation in the City/District (approved by the concerned District Magistrate) to ensure wide notice and information to the concerned public; and (iv) proceed with the allotment after 15 days of the publication in accordance with law.

(19) A writ of mandamus is further issued directing District Magistrate, Delegated Authorities/the Rent Control and Eviction Officer to declare vacancy, apart the Notice Board on their office, also in two Newspapers of the concerned City having wide circulation giving information and genuine opportunity to the interested public to apply for allotment and ensuring that the proceedings under Section 16 of the Act are not by proxy and that allotment proceedings are not the sham proceedingsbased on surreptitious conduct of the officials/employees in their offices and the unscrupulous members of the public.�

A perusal of the paragraphs quoted above shows that the learned Single Judge laid down the following amongst others, conclusions:

(1) As the accommodation in question was let out without allotment order, the declaration of vacancy was rightly done. (Paragraph 16 quoted above).

(2) When release application is filed under Section 16 of the Act, matter is between Landlord and Rent Control and Eviction Officer only. (Paragraph 10 quoted above).

(3) Since the landlord let out the accommodation without allotment order, he stands disqualified by his conduct to seek relief of release under law. Release application at his instance is to be ignored.

Consequently, release order in favour of such landlord was declared void, and the Delegated Authority was directed not to give effect to the release order. (Paragraphs 9, 10, 11, 14, 15 and 18 quoted above).

(4) Directions were given as regards procedure to be followed for notification of vacancy. (Paragraphs 17, 18 and 19 quoted above).

It will be noticed that conclusions (1) and (2) mentioned above in the said decision in Jagdish case (supra) are in consonance with the propositions deduced above from an analysis of the relevant provisions of the Act and the Rules framed under the Act in the light of the decisions noticed in the earlier part of this judgement. Conclusion (4) is intended to achieve the object of the notification of vacancy as required under the relevant Rules framed under the Act.

Conclusion (3) mentioned above in the said decision in Jagdish case (supra) was followed by the learned Single Judge in the decision in Ram Nath Sehgal case (supra) wherein it was laid down as under (paragraphs 3 and 14 of the said ALR):

�(3) The emphasis laid by the landlord/contesting respondents is that the petitioner is an `unauthorized occupant'' being in possession of the accommodation without allotment order in his favour.

(14). In view of the decision in the case of Jagdish v. District Judge, Kanpur Nagar and others, 2002 (46) ALR 677: 2002 All. CJ 462 (A.K. Yog, J.), the released order cannot be sustained. The Rent Control and Eviction Officer has no option but to consider the allotment applications since the landlord has disentitled himself by knowingly and deliberately having breached the provisions of the Act from maintaining the release application under Section 16 of the Act.�

In Ram Shanker Yadav case (supra) (paragraph 17 of the said All CJ), the learned Single Judge followed conclusion No. 3 mentioned above in the said decision in Jagdish case (supra). The learned Single Judge in Ram Shanker Yadav case (supra) (paragraphs 22 and 23 of the said All CJ) further opined that in case landlord and tenant relationship is created in breach of the provisions of the Rent Act, the same can be ignored as being void by the Rent Control authorities and third parties, but such landlord and tenant would remain bound by their conduct and due to the fact that they acquiesced to the contract of tenancy.

In Rafat Ahmad Jamal Alvi case (supra), the learned Single Judge followed conclusion No.3 mentioned above in the decision in Jagdish case (supra), and held as follows (paragraphs 15 and 16 of the said All CJ):

�(15) Reference be made to the judgement and order dated 2312002 in writ petition No. 2907 of 2002 (reported in 2002 All. C.J. 462) Jagdish v. The District Judge, Kanpur Nagar and others.

(16) For ready reference relevant extract of the said judgment is reproduced (All. C.J. Paras 9, 10, 11, 12, 13) �From the above, it is clear that both the petitioner and the respondent No. 3 colluded with each other abetted with each in `complicity'' to perpetuate `fraud'' on law and their conduct is in clear breach of law. Respondent No. 3 letting out the accommodation and on the other hand petitioner taking it on rent in contravention of the mandatory provisions of U.P. Act No. XIII of 1972, both acted in breach of mandatory provisions of law deliberately failed to discharge their statutory obligation entering into a transaction prohibited by law. Both the parties are guilty of same offence and equally responsible and hence liable to suffer the consequences at par for their act of committing breach of the statutory provisions of the Act.

In fact conduct of landlord is more reprehensible as compared to the tenant. In a transaction like the present, landlord is at a (sic an) advantage and in a commanding position competent to dictate its terms visavis a prospective tenant (e.g. charging rent by of his choice and exploiting helplessness of the other by not intimating vacancy to the Rent Control and Eviction Officer, deliver possession of the accommodation to a present who has no allotment order in his favour though he has no compulsion and avoiding jurisdiction of the Rent Control and Eviction Officer under Section 16 of the Act and then in future get the accommodation declared vacant by putting forth prospective allottee as ''Proxy'' and then take recourse to a less rigorous provision of Section 16 of the Act, where matter is between landlord and Rent Control and Eviction Officer only of release.

............Landlord who is equally guilty in the same transaction cannot escape the consequences and shall be liable to suffer in proceedings for allotment under Section 16 of the Act. Release application at his instance is to be ignored. A presumption is to be drawn against him that he did not bona fide or genuinely required the accommodation be released.

In order to strike a balance in equities in a matter where proposition of law laid down by Full Bench decision in the case of Nootan Kumar (supra) is applicable, the accommodation shall be treated ''vacant'' and inferred from the admitted ''bundle of facts'' of a particular case. A landlord who himself inducted a person as ''Tenant'' without complying with the provisions of the Act, acquiescence by conduct and principle of ''Estoppel'' shall be attracted against him.

In my consider opinion in case under Section 16 of the Act, if ratio of the case Nootan Kumar (supra) is attracted, the Rent Control and Eviction Officer will have no option but to proceed with ''allotment'' of such accommodation inasmuch as a ''landlord'' disentitles him to seek ''release'' of an accommodation ''let out'' against the provisions of the Act.

Such a landlord stands disqualified by his conduct to seek relief of release under law. One who himself commits breach of a particular law cannot under principles of equity, complained of breach of said provisions of law by another and Court shall refuse to enforce the provision of the said Act for the benefit of such a defaulter.

A landlord, guilty of acting in breach of the Act, is guilty of abuse of process of law. He is major gainer in the clandestine deal as compared to the tenant and hence must be placed at par in the same category as the defaulting tenant (calledunauthorized occupant). A tenant branded as unauthorised occupant, cannot be allowed ot be dispossessed at the instance of defaulting landlord generally by proxy or by getting prosecutive allottee as their proxy and then seek release treating the accommodation vacant under Section 16 of the Act avoiding release after contest with the tenant under Section 21 of the Act. Landlord in fact estopped by conduct having acquiesced to let out the accommodation.�

For the reasons discussed above, I regret, with deep respect for the learned Judge, my inability to agree with the conclusion No. 3 mentioned above in the said decision in Jagdish case (supra), which was followed by the learned Judge in the other cases referred to above.

I am of the opinion that the landlord cannot be deprived of his statutory right under Section 16(1)(b) of the Act to seek release of the building/accommodation on the ground that he violated the provisions of the Act letting out without allotment order. As noted above, the legislature in its wisdom has not excluded such a landlord from seeking release under Section 16(1)(b) of the Act. Hence, he cannot be deprived of this statutory right on the ground of estoppel or acquiescence or fraud on law or abuse of process of law.

In case release order is passed under Section 16(1)(b) of the Act on the application of such landlord, the release order is not void, nor can it be declared void by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. This Court, in my opinion, cannot direct the District Magistrate/Delegated Authority not to give effect to such release order.

In may further be noted, as mentioned earlier, that even though the landlord is not deprived of seeking release under Section 16(1)(b) of the Act, but the District Magistrate while dealing with such release application may consider the fact regarding letting without allotment order as one of the relevant factors in order to decide the question of bona fide requirement of the landlord as provided under Section 16(2) of the Act.

In this regard, reference may be made to the decision in Kandhaiya Lal v. The Rent Control Officer/Upper Nagar Magistrate IIIrd, Kanpur Nagar and others, 2002 (1) ARC 551. In this case, the Rent Control and Eviction Officer declared vacancy in the shop in question on the ground that the same was let out to the petitioner without allotment order. Considering the findings recorded by the Rent Control and Eviction Officer, a learned Single Judge of this Court (Hon''ble R.H. Zaidi, J.) held as follows (paragraphs 4 and 5 of the said ARC):

�(4) The aforesaid finding recorded by the respondent No. 1 is quite correct and does not suffer from any error of law. Learned Counsel for the petitioner failed to show from the material on the record that the petitioner was a lawful occupant of the shop in dispute. The occupation of the petitioner was in contravention to the provisions of Sections 11 and 13 of the Act. The Rent Control and Eviction Officer. Therefore, taking into consideration provisions of Section 12 of the Act, rightly held that the shop in dispute was deemed vacant.

(5) So far as the release of the shop in dispute is concerned it is well settled in law that in the proceedings before the Rent Control and Eviction Officer/District Magistrate, the prospective allottee or an unauthorized occupant has got no right to intervene in the same. The petitioner, who is unauthorized occupant of the shop in dispute, had no right to object to release of the shop in dispute in favour of the landlord.�

Thus, the view taken in the decision in Kandhaiya Lal case (supra) is at variance with the aforementioned conclusion number (3) in Jagdish case (supra) which was followed in Ram Nath Sehgal case (supra) and other cases referred to above.

In view of the aforemesaid discussion, I am of the opinion that it is in the interest of justice to refer the following questions to a Larger Bench:

(1) Whether in case a landlord lets a building/accommodation covered under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) to a person without allotment order, and the building/accommodation is declared vacant on account such letting, the landlord is deprived of seeking release of such building/accommodation under Section 16(1)(b) of the said Act?

(2) Whether the release application filed by such a landlord under Section 16(1)(b) of the said Act is liable to be ignored, and the release order passed on such application is void and cannot be given effect to?

(3) Whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India can deprive such a landlord of his right to seek release of the aforesaid building/accommodation under Section 16(1)(b) by issuing declaration declaring the release order in favour of such a landlord as void, and directing the District Magistrate/Delegated Authority not to give effect to such release order?

Let the record be placed before the Hon''ble The Chief Justice for appropriate directions.

In view of the fact that reference is being made to a Larger Bench, it is directed that notice be issued to the respondents in the writ petition fixing 2992003. Necessary steps will be taken by the learned Counsel for the petitioner within three days.

Until further orders of this Court, the petitioner will not be evicted from the disputed accommodation provided the petitioner deposits rent/damages upto September, 2003 within one month from today at the same rate at which he had been paying rent/damages to the respondent No.3/landlord before the impugned orders were passed, and further continues to deposit rent/damages with effect from October, 2003 by 7th of each such month. The amount, if any, already paid/deposited by the petitioner may be adjusted.

The amount so deposited may be withdrawn by the respondent No. 3/landlord without furnishing any security.

The deposits so made and the withdrawal thereof will be without prejudice to the rights and contentions of the parties in the writ petition.

In case the steps are not taken within the time mentioned above, or any of the conditions incorporated in the aforesaid interim order is violated, the said interim order will stand automatically vacated.