Naveen Chandra Joshi vs Girish Chandra Joshi and Others

Sudhanshu Dhulia, J.—The petitioner before this Court has challenged the order of the Rent Control & Eviction Officer which has been passed u/s 18(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short ''U.P. Act No. 13 of 1972'').

The premises in question is situated at Mall Road, Nainital (Shop No. 5 Bank House, G.P. Pant Road). The respondents are the landlords of the property in question. In 1992 the proceeding of allotment of the premises was started. The shop was allotted to the petitioner u/s 16 of the U.P. Act No. 13 of 1972 on 17.01.2007. This allotment was challenged by the landlord in revision and the same was allowed and the allotment was held to be bad. Against the said order the petitioner filed writ petition before this Court which was dismissed vide order dated 12.08.5011 whereby this Court directed the Prescribed Authority/Rent Control & Eviction Officer to initiate de novo proceeding to declare vacancy. Against the said order, SLP has been filed before the Hon''ble Apex Court by the petitioner, which was also dismissed vide order dated 17.04.2013 and it was held that de nova proceedings shall continue. Meanwhile, the respondents moved an application u/s 18(3) of the U.P. Act No. 13 of 1972 before the Rent Control and Eviction Officer. Section 18(3) of U.P. Act No. 13 of 1972 reads as under:--

Appeal against order of allotment or release-

1......

2......

Where an order u/s 16 or Section 19 is rescinded, the District Magistrate shall, on an application being made to him on that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose use or cause to be used such force as may be necessary.

The Rent Control and Eviction Officer has held that since the very allotment in favour of the petitioner was bad, it is directed that the petitioner shall handover the possession of the premises to the landlord and thereafter the landlord shall move an application u/s 15(1) of the U.P. Act No. 13 of 1972 for entering the vacancy and thereafter initiate the proceedings for release and allotment, as the case may be. It is this order which is challenged by the petitioner before this Court.

From the perusal of the order of the Rent Control and Eviction Officer it appears that since the earlier order of allotment in favour of the petitioner was bad, no fault can be found as de nova proceedings must be made. The de nova proceedings have to be initiated. It is also not in doubt that Section 18(3) of the U.P. Act No. 13 of 1972 is a provision wherein an allotment order, if cancelled or rescinded, the position has to revert to a position which would have existed if no order of allotment were passed.

The possession cannot remain with the petitioner, nor can it be given to any other person because their status is nothing more than of an "unauthorized occupant". But at the same time, the possession can also not be given to the landlord, as there is no determination regarding that as well. Therefore, that part of the order of the Rent Control and Eviction Officer whereby he has directed that the possession be given to the landlord is bad. Instead it is directed that the petitioner shall handover the possession of the premises to the Rent Control and Eviction Officer within three months i.e. on or before 04.04.2014. In case, possession is not given to the Rent Control and Eviction Officer within the time stated above, he shall take the possession of the shop in question, and if required by police help. Since there is practically a vacancy of the premises, a formal notification to that effect will be given by the Rent Control and Eviction Officer u/s 12 of the U.P. Act No. 13 of 1972 and consequently, the release application or the allotment application be invited for release or allotment of the shop in question, as the case might be, in accordance with law. It is made clear since the determination of the vacancy has already been made and only formal declaration has to be given there would be no need to the fact that landlord to make a formal declaration u/s 15(1) of the Act No. 13 of 1972.

With the aforesaid observation, the writ petition is disposed of. No order as to costs.