Samuel Kempstor vs Rent Control & Eviction Officer/Additional City Magistrate Vi, Kanpur Nagar and Another

This bunch of writ petitions has been placed before us pursuant to the order of Hon''ble the Chief Justice dated 17.10.2006 passed in Writ Petition No.30203 of 2001 as the learned Single Judge in its order dated 18.9.2006 in the said writ petition was of the view that the following questions required consideration by Larger Bench

(i) Whether in view of 2005 (1) ARC 877 (SC), Achal Misra v. Rama Shankar Singh and Others, the petitioner can challenge the order declaring the vacancy along with the order of allotment/release passed by the Rent Control and Eviction Officer?

(ii) Whether the writ petition challenging the order of declaration or vacancy needs no interference by the High Court under Article 226 of the Constitution on the ground that it is against interlocutory order or premature though neither Act says so nor Supreme Court has held so?

(iii) Whether as soon as the release application under Section 16(1)(b) is filed the person aggrieved by order declaring vacancy cannot contest or challenge the same as per law laid down by this Court as well as by Hon''ble Supreme Court?

(iv) Whether being declared unauthorized occupant he is not entitled for being considered for allotment under Section 16(1)(a) as per Rule 10(5) (d)?

(v) Whether the remedy of revision will become redundant once the order of release is made?

(vi) Whether Shyam Sunder Agarwal''s case has correctly interpreted the law laid down by the Apex Court in Achal Misra''s case (supra)?

(vii) Whether a person can be left remediless and made to wait till the order of allotment/release for declaration of vacancy in the accommodation in dispute is passed by the authority/Rent Control and Eviction Officer and what would be the status of the landlord, prospective allottee and the tenant during this period?

Since the questions referred for opinion by Larger Bench are purely legal in nature and involve interpretation of judicial pronouncements and legal provisions, as such we are not entering into the facts of the case.

According to us, the basic questions which require consideration, as it appears from the reading of the reference order is firstly, as to whether the decision of learned Single Judge in the case of Shyam Sunder Agarwal v. Smt. Gyanwati Devi and another, reported in 2005 (2) ARC 479 is correct or not and secondly, what are the remedies available to an aggrieved party against an order declaring vacancy under Section 12 of the Act.

Provisions relating to control of letting and rent of accommodation was first introduced by means of Government orders issued under the Defence of India Rules, 1939. In order to continue such provisions, a temporary Act known as the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 was enacted. The life of the said temporary Act had to be extended from time to time. Further, in order to control the letting and rent of accommodations and further in view of the continuing increase in the urban population and the relatively slow pace of house building activity, mainly, due to shortage of materials, the problem of shortage or accommodation had become chronic which ultimately resulted into enactment of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as the Act).

Under the scheme of the Act, occupation of a building covered by the provisions of the Act was to be controlled by the District Magistrate. Letting of buildings covered by the Act by the landlord is prohibited except by way of allotment under Section 11 of the Act. Further, under Section 12 of the Act a building would be deemed to be vacant where under the given conditions the landlord or tenant ceased to occupy the same. Where any person having ceased to occupy any building was occupying the same without an order of allotment or release under Section 16 of the Act and in contravention of the provisions of the Act, such person was deemed to be an unauthorized occupant under Section 13 of the Act. Occupation of a building under given circumstances would stand regularized under Section 14 of the Act. The Act further provided that unauthorized occupants were liable to be evicted from the accommodation in their unlawful possession and such building would be available for allotment in accordance with the provisions of the Act and the Rules framed thereunder. For determining whether a person had ceased to occupy a building or not, a procedure was prescribed under Section 12 of the Act and also the Rules framed under the Act. It provided that upon information being received by the District Magistrate an enquiry could be embarked upon by inspection of the premises by the Rent Control inspector and based on said report, after giving opportunity to the concerned parties including the unlawful occupants, the status of the occupants could be determined. In case it was found that the occupation was unlawful or had become unlawful, the building could be declared vacant and would be available for allotment or release to the landlord by the District Magistrate under Section 16 of the Act.

Under the Rules framed under the Act, Rule 8 dealt with ascertainment of vacancy, Rule 9 dealt with notice of vacancy, Rule 10 dealt with allotment procedure, Rule 11 provided for order of priorities in allotment of residential buildings, Rule 12 provided for allotment of building in Form B, Rule 13 provided for dealing with the application for release of vacant building and Rule 14 provided for enforcement of order of allotment or release. The Act and the Rules, thus, contained a selfcontained procedure for declaration of vacancy in respect of building covered by the Act and also for its allotment and release. Section 18 of the Act provided a remedy to the aggrieved person against order of allotment or release by filing revision before the District Judge. The Act or the Rules framed thereunder did not contain any remedy for the aggrieved person, be it either the landlord or the occupant, to challenge an order declaring vacancy under Section 12 of the Act. The question with regard to the remedy available against an order passed under Section 12 of the Act declaring �`cancy has been subject mat�d�!of consideration by a large number of judicial pronouncements not only of this Court but also of the Apex Court. There were conflicting views on the point. A Bench of two Hon''ble Judges of the Apex Court in case of Achal Misra v. Rama Shankar Singh, reported in 2000 (2) Allahabad Rent Cases 446 (referred to as Achal Misra I) notice that the decision of the Apex Court in the case of M/s Trilok Singh and Company v. District Magistrate, Lucknow and other, reported in 1976 (3) SCC 726 holding that any notification of vacancy in respect of premises causes no prejudice to the interest of any party, was in direct conflict with the another decision of the Apex Court in case of Ganpat Roy and Others v. Additional District Magistrate and Others, reported in 1985 (2) SCC 307 in which it was held that the petition under Article 226 of the Constitution of India would be maintainable against an order notifying vacancy by the landlord or the occupant. Faced with this conflict in opinion, the matter was referred to for being considered and decided by a larger bench vide judgment in Achal Misra (supra). Subsequently, three Hon''ble Judges of the Apex Court while dealing with the referred matter, in the case of Achal Misra v. Rama Shankar Singh and Others, reported in 2005 (1) Allahabad Rent Cases 877 (referred to as Achal Misra II) after considering various pronouncements held in para 13 of the judgment as follows:

���..In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies.�

�The settled view which emerged from the decision of the Apex Court as referred to above in the case of Achal Misra II (supra) clearly provided that against an order notifying vacancy two options were available firstly, the order notifying vacancy could be straight away challenged by means of a writ petition under Article 226 of the Constitution of India without waiting for any order being passed under Section 16 of the Act and secondly, the order notifying vacancy could be challenged at a subsequent stage after a final order of allotment or release was made under Section 16 of the Act by filing a statutory revision under Section 18 of the Act against both the orders.�

From perusal of the judgment in the case of Shyam Sunder Agarwal (supra) it appears that the learned Single Judge, even though noticed and also extracted paragraph 13 of the Apex Court decision in the case of Achal Misra II (supra) but held that the writ petition against an order declaring vacancy was premature and the petitioner therein could challenge the order declaring vacancy only after an order of allotment/release is passed. With respects, in our opinion learned Single Judge while deciding the case of Shyam Sunder Agarwal (supra) did not correctly apply the law laid down by the Apex Court in the case of Achal Misra II (supra). In our opinion, it cannot be said that writ petition against an order declaring vacancy would be premature. It is at the option of the aggrieved person whether or not to challenge the order declaring vacancy straight away by means of filing a writ petition under Article 226 of the Constitution of India or to wait for final order being passed either allotting or releasing the premises in dispute and then avail of the statutory remedy in which it could challenge both the orders.

The above discussion gives a complete answer to Question Nos.(i), (ii) (v), (vi) and (vii) as they are interlinked and deal with the correctness of the judgment of Shyam Sunder Agarwal (supra) and also of the right of aggrieved person against an order declaring vacancy.

Question No. (i) is answered in the affirmative. Question No.(ii) is answered in the negative. Question No.(v) is answered in the negative. Question No.(vi) is answered in the negative. First part of the Question No.(vii) is answered in the negative. With regard to second part of Question No.(vii) it is apparent that status of landlord and prospective allottee will remain the same during the period after declaration of vacancy and till order of allotment or release is passed. However, status of tenant after declaration of vacancy would be that of an unauthorized occupant in view of specific provision contained in Section 13 of the Act. Now we proceed to find out the answer to Question Nos. (iii) and (iv). We will first deal with Question No.(iii). In our opinion once it has been held that an order declaring vacancy can be challenged along with a final order of release, it can not be said that the aggrieved person could not challenge the same after release application is filed on the basis of the law laid down in the case of Talib Hasan and another v. 1st Additional District Judge, Nainital and other, reported in 1986 (1) ARC 1. The said decision lays down that a prospective allottee cannot contest an application for release filed by the landlords as the matter of release is between the District Magistrate and the landlord. The other case referred to in the reference order is that of Narayani Devi v. Mahendra Kumar Tripathi & Others, reported in 1998 (1) ARC 153 (SC) wherein the Apex Court observed that a revision would not lie at the instance of the tenant/occupant against a final order of allotment or release. The said decision of the Apex Court in the case of Narayani Devi (supra) is a nonspeaking order and it proceeded on an admitted position without disclosing or referring to the source of admission. Section 19 of the Act has used the words �any person aggrieved� by a final order may file a revision. The stage of considering whether allotment/release order is to be passed or not under Section 16 of the Act arises only after an order declaring vacancy has been passed under Section 12 of the Act. Declaration of vacancy under Section 12 of the Act is a must before arriving at the stage of Section 16 of the Act. In case an order under Section 12 of the Act is set aside or declared illegal, the order passed at final stage under Section 16 of the Act will automatically fall and cannot stand. The Apex Court in the case of Achal Misra II (supra) after detailed discussion has clearly laid down that the person aggrieved can challenge the order declaring vacancy under Section 12 of the Act along with final order passed under Section 16 of the Act. It may be a different question with regard to the scope of the revision by an aggrieved person against an order of vacancy and release. In any case the revisional Court will have to examine the correctness of the order declaring vacancy.

In view of the above, the occupant can always file a revision against an order of release and also the order declaring vacancy in view of the decision of the Apex Court in the case of Achal Misra II (supra). The revisional Court will have to decide the correctness of the order declaring vacancy before dealing with the matter relating to release of the building. The Apex Court in the case of Achal Misra II (supra) while dealing with this aspect of the matter held as follows in Para 11 of the report.

�On the scheme of the Act, it is clear that the preliminary step is to declare a vacancy. At this stage, an enquiry has to be made including an enquiry involving at least two respectable neighbors. It is thereafter that the vacancy has to be notified and objections invited. This is followed by either dropping of the proceedings on the objections being upheld that there was no vacancy or by allotment to a tenant on finding the vacancy or in ordering a release of the building, in case a landlord was found entitled to have such a release under the Act. Therefore, the notifying of a vacancy is only a step in the process of making an allotment of the building to a tenant. The Act contemplates that no building should be let out by a landlord except through the process of allotment by the Rent Control Authority. Since the order notifying a vacancy is only a step in passing the final order in a proceeding under the Act regarding allotment, it is clear that the same could be challenged while challenging the final order, unless there is anything in the Act precluding such a challenge or conferring a finality to the order notifying a vacancy����

This clearly meant that the aggrieved person can file revision against order of release, along with order of vacancy but the revision would be confined to the matter of vacancy and as the release is consequential and subse quent to declaration of vacancy, if the aggrieved person succeeds against the order declaring vacancy, matter regarding release would automatically abate and would become redundant. In the other situation where the revisional Court holds that the order declaring vacancy is in order and does not suffer from any infirmity in that event the scope wih regard to the merit of the final order will depend upon the right of the person aggrieved qua the final order. In any event the revision would be maintainable. In this view of the matter Question No.(ii) is answered in the negative.

With regard to Question No.(v), it needs to be mentioned that Apex Court while dealing with the said provisions in the case R.C. Misra v. Sri Mahendra Tripathi, reported in AIR 1977 SC 45 held that there was no provision in the Act or Rule which disentitled the unauthorized occupant to ask for allotment. Further this Court in the case of Dinesh Kumar v. II Additional District Judge, Aligarh and another, reported in 1998 (1) ARC 187, held that an occupant declared unauthorized under Section 12 of the Act but who was in possession of the property with the consent of the landlord would not be covered by Rule 10(5)(d) of the Rules and it would be at the discretion of the appropriate authority whether or not to consider his application for allotment on merits. The reasoning given in the said decision is based upon the interpretation of the word ordinarily. The Courts have held that word ordinarily does not mean invariably or always but the word ''ordinarily'' can be stretched depending upon the facts of the each case. The above view is based upon the plain reading of Rule 10 (5) of the Rules which is quoted here under:

�10(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 subsection (2) of Section 20 during a period of two years from the date of such decree, 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 of the landlord.�

The opening words of Rule 10(5) of the Rules uses the language �A building shall not ordinarily be allotted����. Emphasis is on the word ''ordinarily''. There is no absolute debarment to the category of persons mentioned in the clauses (a) to (d) of the said Rule. Further clause (d) of the said Rule itself makes an exception for an unauthorized occupation having entered into the accommodation with the consent of the landlord. This Court in the case of Dinesh Kumar (supra) while dealing with the Rule 10(5)(d) of the Rules held as follows in Para 12 of the report:

�I find no good reason to take a view different from one expressed in the aforesaid decisions. It admits of no doubt that Rule 10(5)(d) does not apply to a case of an occupant, who is in occupation with the consent of the landlord though for the purposes of Section 12 or Section 31 he may be an unauthorized occupant in the absence of allotment order. Even to a case of an unauthorized occupant, who is in occupation without the consent of the landlord, there is no absolute legal bar which may disentitle him to ask for allotment order in his favour. It is true that if such a person applies for order of allotment, the premises may not ordinarily be allotted in his favour, but that does not mean that his application is not liable to be taken into consideration as not maintainable and in a fit case there could be a deviation or departure from the normal Rules and if the facts and circumstances justify, the premises may be allotted even in favour of an unauthorized occupant.�

Similar view has been expressed by the Apex Court in the case of R.K. Parasher v. Dinesh Kumar, reported in 2000(1) ARC 557. In Paragraphs 13 and 14 of the report the Apex Court while dealing with the issue in the case of R.K. Parasher (supra) observed as follows:

�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 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 or 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 unauthorized occupant so declared under Section 13 of the Act and has taken note of only an unauthorized 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.

In the instant case, admittedly, respondent No.1, had the consent of the landlord, may 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.�

Subsequently, this Court in the case of Ram Swaroop Bhatia v. Smt. Shiv Pati Devi and Others, reported in 2004 (1) ARC 203 following the decision in the case of R.K. Parasher (supra) remanded the matter to the RCEO for fresh consideration of the allotment application of the unauthorized occupant. In the backdrop of the discussion made above, in our view the application for allotment by an unauthorized occupant would be maintainable and will have to be considered on its own merit in the facts of each case, in accordance with law.

In view of the aforesaid descussion, the Question No.(iv) is answered in the negative.

The record of the writ petition be placed before the learned Single Judge for deciding the same in the light of the answers rendered by us.

(Reference answered accordingly)