Sudhir Narain. J - (1.) THE maintainability of this Special Appeal depends upon the answer to the question as to whether the Rent Control and Eviction Officer acts as a Tribunal while he determines the question regarding vacancy of a building under the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (In short the "Act") A special appeal is maintainable under Chapter VIII. Rule 5 of the Rules of the High Court. It bars special appeal against the order of a Tribunal. Rule 5 is reproduced below :- "5 Special Appeal.- An appeal shall lie to the court from a judgment (not being judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court end not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise or criminal Jurisdiction) (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matter enumerated in the State List or the concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act) of one Judge.)"
(2.) THE brief facts and the circumstances under which this special appeal has been filed are that the appellant filed an application for allotment of the accommodation in dispute in his favour under section 16 of the Act. THE Rent Control and Eviction Officer called for a report from the Rent Control Inspector. THE Rent Control Inspector submitted a report stating therein that the accommodation in question could not be treated as vacant as the appellant was himself occupying the said accommodation. He recommended that the parties may be summoned. One Kanhaiyalal Kesari also filed an application for allotment. Subsequently, the appellant filed an application that he was in possession of the accommodation since the year 1968 and his possession may be regularised under section 14 of the Act. THE landlord filed an objection stating that the possession of the appellant was unauthorised and he was not in occupation with his consent and he is not entitled to any regularisation of his possession under section 14 of the Act. THE Rent Control and Eviction Officer held that the possession of the appellant was unauthorised and declared the premises in question as vacant on 11-3-1987. After the passing of this order the landlord moved an application seeking release of the premises in dispute. THE application of the landlord for release was allowed and the applications of the applicant and that of Kanhaiyalal for allotment were rejected THE appellant filed writ petition against the order of the Rent Control and Eviction Officer which was dismissed by the learned Judge of this Court by order dated October 28, 1992. This special appeal has been filed against the said order. The Rent Control Officer exercised the delegated power of the District Magistrate under the Act. There is no dispute that the Rent Control and Eviction Officer has power to release an accommodation in favour of the landlord under section 16 of the Act or allot such accommodation to one of the applicants This power can be exercised only where there is vacancy. The Rent Control and Eviction Officer has jurisdiction to pass an order only when there is vacancy of such building. The vacancy may be actual or it may be deemed vacancy as contemplated under section 12 of the Act. It is a deeming provision By fiction of law certain accommodation is treated as vacant. The relevant provision of section 12 may be extracted as under :- "12. Deemed vacancy of building in certain cases (1) and landlord or tenant or a buildings shall be deemed to have ceased to occupy the building of 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 residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. (2) In the case of non-residential building, where a tanant 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 he case may be, the tenant shall be deemed to have ceased to occupy the building. (3) In the case of 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. Apart from It, a building may have been vaunted by the tenant and he might not have intimated the vacancy to the landlord or to the Rent Control and Eviction Officer and might have given its possession to some other person. He might have sub-let without consent of the landlord and even in that situation it shall be treated as vacant under sub-section (2) of section 25 of the Act. The Rent Control and Eviction Officer has to ascertain the fact of vacancy of the building in dispute. Rule 8 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972 (in short the 'Rules') provides procedure for ascertainment of vacancy. Rule 8 may be reproduced 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 posted 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 sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce."
(3.) THE procedure for declaration of vacancy Involves inspection of building notice to the landlord, tenant and the occupier of the building, inviting objections from them, hearing the affected parties, applicant and objector In the said proceedings and, after taking evidence, determination of vacancy and after such vacancy is declared, the same has to be published by posting the notice of vacancy on the Notice Borad in the office of the Rent Control and Eviction Officer. Rule 8 of the Rules has been held mandatory and failure to follow the procedure prescribed In It vitiates the entire proceedings of declaration of vacancy vide Yogendra Tiwari v The District Judge, Gorakhpur, 1984 (2) AFC 7 (SC), Smt. Kanti Gupta v. Vlllth Addl. District Judge, Meerut, 1987 (2) ABC 108, Roman Catholic Diocase of Agra v. Rent Control and Eviction Officer, Agra, 1991 (2) ARC 204;