Satish Chandra, C.J. - (1.) FINDING a difference of opinion between Single Judge decisions on the status of notification or declaration of vacancy under Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, a learned Single Judge has referred this group of writ petitions for decision to a Division Bench.
(2.) SOME of the writ petitions have been filed directly against notification of vacancy ; while one other has been instituted after an order of allotment or release had been passed. One question is if a revision under Section 18 of the Act or even a writ petition to this Court lies or is maintainable against the notification of vacancy. The other and more important problem is whether in a revision under Section 18 of the Act or in a writ petition under Article 226/227 of the Constitution, the finding on the existence of vacancy can be reconsidered on its merits on facts, on the ground that it is a finding on a jurisdictional fact. Chapter III of the Rent Control Act, 1972 deals with 'regulation of letting'. It consists of Sections 11 to 19. Section 11 provides that no person shall let out any building except in pursuance of an allotment order issued under Section 16. Section 16 authorises the District Magistrate to make an order of allotment in respect of a building which is or has fallen vacant or is about to fall vacant. He can also release such a building to the landlord. Section 12 lays down various situations in which the landlord or the tenant is deemed to have ceased to occupy the building. Under sub-section (4) of Section 12, in such cases the building shall, for the purposes of that Chapter, be deemed to be vacant. Rule 8 of the Rules framed under that Act provides the procedure for ascertainment of vacancy. It says that 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 it inspected. The inspection shall so far as possible, be done in the presence of the landlord and of the tenant or other occupant. The substance of the report is to be placed on the notice board of the office of the District Magistrate for inviting objections, if any. Any objection received is decided after considering the evidence that the objector or any other person may adduce. On the expiry of three days from the date of posting of the report or after the disposal of the objections, if any received, the District Magistrate is to consider the case and pass an order of allotment or release or otherwise as the case be.
(3.) THE proviso to Section 16 (1) (which was added by U. P. Amendment Act No. 28 of 1976) states 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 of allotment under clause (a). It is at the stage of considering the applications for allotment that the landlord or the tenant is required to be given an opportunity of hearing to show, inter alia, that no vacancy had, in fact or in law, existed within meaning of Section 12 (4). Sub-section (5) (a) of Section 16 provides another opportunity to the landlord or any other person claiming to be a lawful occupant of the building to apply to the District Magistrate for review of the order of allotment or release. If the District Magistrate is satisfied that the order of allotment or release was not passed properly he can revoke the order and put back the evicted person in possession. Sub-section (7) of Section 16 provides that every order under this section shall, subject to any order made under Section 18, be final.;