Anjani Kumar, J. - (1.) Petitioner by means of this writ petition under Article 226 of the Constitution of India has challenged the order dated 20.10.2004 passed by the Rent Control and Eviction Officer, Kanpur Nagar whereby the Rent Control and Eviction Officer has allowed the application filed by the respondent-landlord declaring vacancy under Section 12 (3) of U.P. Act No. 13 of 1972 in the accommodation in question.
(2.) Heard learned Counsel appearing on behalf of the parties.
(3.) In view of the decision of Apex Court reported in, JT 2005 (4) SC 428 : 2005 (1) ARC 877 : 2005 SCFBRC 287, Achal Misra v. Rain Shanker Singh and others. Paragraph 13 relied upon by learned Counsel for the contesting respondents is reproduced below:- "13. It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged. In a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision making and in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy's case, which has disapproved the ratio of decision in M/s. Trilok Singh and Co.. cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy's case and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section 105 (2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Smt. Kunj Lata v. Xth Additional District Judge, Kanpur Nagar and others (supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. 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.";