S.C. Mathur, J. - (1.) THE dispute in this petition pertains to vacancy, allotment and release of residential accommodation under the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, No. 13 of 1972, for short the Act.
(2.) THE Petitioner Sri. Swaroop Narain Srivastava is the owner of house No. 395/31 Raj Bhawan, Kashmiri Mohalla, Police Station Saadatganj, Lucknow. A portion of this house was in the tenancy of Sri. Sita Ram Sakhya who died leaving his surviving Respondents 2 to 4 and Dr. R.R.P. Singh and Sri. J.P. Singh who succeeded to the tenancy rights. Dr. R.R.P. Singh obtained allotment order in respect of a house situate in the same locality under the provisions of the Act. Thereupon the landlord Petitioner moved an application before the District Supply Officer (Rent Control), Lucknow, asserting therein that the premises is to be deemed to have fallen vacant under Section 12 of the Act and praying for release thereof in his favour under Section 16(1)(a) of the Act. This application was opposed by the widow of the deceased -tenant who pleaded that at the time of the death of Sri. Sita Ram Sakhya, Dr. R.R.P. Singh was not normally residing in the premises in question and, therefore, on the allotment of a house in his favour the disputed premises could not be said to have fallen vacant. By order dated 27 -7 -1977 the application of the landlord was rejected with the finding that the premises was not vacant. Against this order the Petitioner landlord preferred revision before the District Judge, Lucknow. which came up for hearing before the First Additional District Judge who, by his judgment and order dated 26 -5 -1979 Annexure 3, set aside the order dated 27 -7 -1977 and remanded the case to the trial authority. The learned Additional District Judge held that Dr. R.R.P. Singh was normally residing with the deceased -tenant and, therefore, the premises was to be deemed to have fallen vacant. The remand was made for disposal of the landlord's application for release. Against this order the widow of the deceased -tenant preferred writ petition in this Court. The question whether on the facts and circumstances of the case vacancy had occurred, was referred to a Full Bench. After opinion had been recorded by the Full Bench, the petition came up for final hearing before K.N. Goyal, J. who by his judgment and order dated 23 -4 -1981 Annexure 4, dismissed the writ petition in accordance with the opinion given by the Full Bench. Thereafter on 1 -5 -1981 an application was made by the widow of the deceased -tenant and her two sons Sri. S.P. Singh and Sri. C.P. Singh under Rule 10(6) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, for short Rules. In this application they prayed that the accommodation in dispute may be realloted to them. In making this application they relied upon certain observations made by the Full Bench in the writ petition hereinbefore referred to. After remand the trial authority first took up for consideration the landlord's application for release and came to the conclusion that the same had not been made with an ulterior motive and the landlord has succeeded in establishing his requirement for the premises. With this observation he released the accommodation in favour of the Petitioner landlord and consigned the application for reallotment to records. A copy of this order dated 24 -8 -1982 is Annexure No. 6. Against this order the applicants for reallotment preferred revision before the learned District Judge. The learned District Judge observed that on the facts of the present case Rule 13(4) was not applicable and, therefore, the trial authority committed jurisdictional error in taking up the landlord's application for release first and consigning the application for reallotment as infructuous after releasing the accommodation in favour of the landlord. According to the revisional authority the matter of reallotment was distinct from allotment and an application for reallotment was required to be given precedence over landlord's application for release. This order of the revisional Court, dated 15 -12 -1982 Annexure 7, has been challenged through the present writ petition. The Petitioner in the petition is the landlord whose contention is that in view of the specific provisions made in Rule 13(4), there was no occasion to require the trial authority to give precedence to the application for reallotment. According to the learned Counsel for the Petitioner there was no difference between an application for allotment and an application for reallotment and the distinction tried to be drawn by the Court below is illusory.
(3.) SRI . R.C. Bajpai appearing on behalf of the Respondents argued that Rule 10(6)(b) is a Regularisation provision and, therefore Rule 13(4) cannot be applied to a case covered by the said provision. In order to appreciate the arguments the scheme of the Act and the Rules may be examined. Chapter III of the Act deals with Regulation of Letting. Sub -section (1) of Section 12 falling under this Chapter refers to the circumstances when a building may be deemed to be vacant. The circumstances are enumerated in Clauses (a) and (b). None of these clauses is attracted in the present case. Sub -section (3) also provides for a situation where a building, although not actually vacant, may be deemed to be vacant. One of the circumstances enumerated in Sub -section (3) is when a tenant or any member of his family acquires in a vacant state a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate. It is in view of the provision contained in Sub -section (3) that it was pressed by the landlord Petitioner that the premises had fallen vacant on account of Dr. R.R.P. Singh obtaining allotment order in respect of another accommodation in the same locality. The finding of vacancy has already become final by the judgment and order passed by Hon'ble K.N. Goyal, J. in the writ petition referred to hereinabove. Section 13 provides that where a landlord or tenant has ceased 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 unauthorised occupant of such building or part. From this provision it is apparent that after a building has actually fallen vacant or is to be deemed to have fallen vacant, it can be occupied only under an order of allotment. Section 16 deals with allotment and release of vacant building. Sub -section (1) provides that the District Magistrate may by order require the landlord to let any building which is or has fallen vacant or is about to fall vacant. In Clause (b) of the same Sub -section it is provided that the District Magistrate may release the whole or any part of such building. Thereafter there is a proviso which enjoins upon the District Magistrate to give an opportunity to the landlord or the tenant, as the case may be, of showing that the Section is not attracted to his case before making an order under Clause (a). Thus before making an allotment order under Clause (a) of Sub -section (1) of Section 16, the District Magistrate has to give opportunity of hearing to the landlord or the tenant, if there is any, in the premises. Section 17 prescribes the conditions of making allotment order. Section 19 deals with reallotment in the event of landlord abusing the release order.;