Narendra Kishore Mehrotra, J. - (1.) THIS is the writ petition against the order dated 17.9.1996 passed by the District Judge, Raebareli opposite party No. 1 dismissing the revision under section 18 of the U.P. Urban Buildings (Regulating of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') on the ground that as there is no order for release or allotment of accommodation in dispute under section 16 of the Act, the revision under section 18 of the Act is not maintainable. The petitioners have also challenged the order dated 8.7.1996 passed by the Prescribed Authority (Up Khand Magistrate/Up Ziladhikari, Lalganj, Raebareli) rejecting the petitioner's notice under section 15(1) of the Act refusing to declare the vacancy in the disputed premises which was earlier occupied by one tenant Rafeeq who had left the premises without the intimation to the landlord. The writ petition has been contested by Shri Raj Kumar, opposite party No. 3, who admittedly is also a tenant in another portion of the house belonging to the petitioner and who claims to be the tenant of the entire premises including the disputed premises.
(2.) AFTER hearing the learned Counsel for the parties, I have examined the impugned judgment dated 17.9.1996 passed by the District Judge, Raebareli in S.C.C. Revision No. 59/1996. This revision has been dismissed mainly on the ground that the revision under section 18 of the Act is not maintainable. The relevant portion of the impugned order is as follows: - Since the revision, under section 18 of the Act, is maintainable only for order passed under section 16 of the Act in case there is order for release or allotment of the accommodation only. There is no question of present revision being maintainable for any other purpose. There is no order of release or allotment made so far and, therefore, the revision is not maintainable under section 18 of the Act, and it deserves to be dismissed at the admission stage. The revision, as such, is dismissed at the admission stage. The aforesaid impugned order is not legally correct in view of the judgment of the Apex Court in Achal Mishra v. Rama Shanker Singh and others : 2000 (41) ALR 644. The relevant extract of the judgment of the Apex Court about the maintainability of the revision against the order of vacancy is as follows: 6. On examination of provisions of the Act and Rules, we find that Rule 8(2) of the Rules provides that the inspection report of the Inspector is required to be pasted on the notice board in the office of the District Magistrate for information of the general public and after the notice is pasted, a tenant or a landlord has right a right to file an objection, and if any objection is filed within three days from the date of pasting of the report, the said objection is required to be decided by the Rent Controller. It is after the said objection is decided, the vacancy is notified. Under proviso of sub -section (1) of section 16 of the Act, the District Magistrate is further required to give an opportunity to the landlord or the tenant, as the case may be, to show that there is no vacancy as contemplated under sub -section (4) of section 12 of the Act. It is only after hearing of such objections, if filed, the District Magistrate can allot the premises. Under sub -section (5) of section 16 of the Act, the landlord or the tenant has a further right to file a review against the order of allotment if such order is not passed in accordance with Clause (a) or Clause (b), as the case may be, or sub -section (1) of section 16 of the Act. Any person, who is aggrieved against any final order passed under section 16 of the Act, is entitled to file revision under section 18 of the Act before the District Judge on ground enumerated therein. 7. In view of the aforesaid provisions, it cannot be said that the question of vacancy, if not challenged by a separate writ petition on its notification, cannot be questioned in the revision filed under section 18 of the Act. The question of vacancy pertains to jurisdictional facts and can very well be challenged in the revision filed against allotment order passed by the District Magistrate. In case it is found that there is no vacancy, the order of allotment has to be set aside. We, therefore, feel that the decision in Ganpat Roy case holding that the validity of vacancy cannot be agitated in a revision under section 18 of the Act, appears to be incorrect. Since the decision in Ganpat Roy case is by three Hon'ble Judges, we feel it appropriate that this appeal be decided by a Larger Bench. Let the record of the case be placed before the Hon'ble the C.J.I. for appropriate orders. In view of the above, I am of the opinion that the revision has been wrongly dismissed on the ground of non -maintainability. In view of the decision of the Apex Court referred to above, the question of vacancy can be seen in revision filed under section 18 of the Act. Therefore, the impugned order dated 17.9.1996 passed in S.C.C. Revision No. 59/96 is liable to be set aside.
(3.) THE petitioners have also challenged another order dated 8.7.1996 passed by the Prescribed Authority (U.P. Khand Magistrate/Up Ziladhikari, Lalganj, Raebareli). A perusal of the impugned order dated 8.7.1996 goes to show that the learned S.D.M. has refused to declare the vacancy mainly on the ground that the opposite party No. 3 Raj Kumar claiming himself to be the tenant had filed a Civil Suit No. 512/93 for injunction against the petitioner and in that suit the learned Munsif, Dalmau, District Raebareli passed an ex parte injunction order on 13.9.1993 restraining the petitioners from dispossessing the opposite party No. 3 except after following the procedure prescribed by law. The order of the learned Munsif does not debar the Rent Control Authorities to decide the question of vacancy or deemed vacancy. Therefore, the impugned order dated 8.7.1996 is also bad in view. Further, I find that the learned Prescribed Authority/S.D.M., Lalganj, Raebareli, at the time of deciding the question of vacancy has not kept in mind the relevant provisions under sections 12, 13 and 14 of the Act. Sections 12(1)(2), 13 and 14 of the Act are as follows: 12(1). A landlord or tenant of a building shall be deemed to have ceased to occupy the building or 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 tenant 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 the case may be, the tenant shall be deemed to have ceased to occupy the building. 13. Restrictions on occupation of building without allotment or release - -Where a landlord or tenant ceases 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 unauthorized occupant of such building or part. 14. Regularisation or occupation of existing tenants - -Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an unauthorized licensee or tenant of such building.;