- (1.) RAKESH Tiwari, J. The petitioner claims to be tenant of House No. 100/186 Colonalganj, Kanpur Nagar since 1970 at the monthly rent of Rs. 375/- per month.
(2.) IT is alleged that the landlord Ahmad Shafiq refused to accept the rent of the house in dispute as such the petitioner has deposited the rent under Section 30 of U. P. Act No. 13 of 1972 in case No. 116/70/2004, Mohd. Ismail v. Ahmad Shafiq. It is further alleged that the respondent No. 3 Mohd. Ismail S/o Ibrahim moved an application dated 4-12-2004 before RC and EO Kanpur Nagar for allotment of the premises in dispute in his favour on the ground that there is deemed vacancy as the petitioner is living in the house in dispute without any allotment in his favour. The petitioner claims that he is living in the house in dispute since 20-5-1970 as tenant and his tenancy stands regularized by virtue of Act No. 28 of 1976. It appears that the Rent Control Inspector submitted a report dated 31-12- 2004 in the application to the effect that prima facie it appears that there is deemed vacancy in disputed accommodation. He came to this conclusion on the basis of evidence and requested the R. C. and E. O. to decide the case on merits after hearing the parties concerned. The report is as under: The petitioner filed objection to the report as well as the allotment letter. It also appears that Ahmad Shafiq also moved an application under Section 21 (1) (a) of U. P. Act. No. 13 of 1972 for release of the house in dispute on the ground of bona fide need. However, the RC and EO/addl. City Magistrate (III), Kanpur Nagar passed order for vacancy dated 17-7-2006 and fixed 31-7-2006 in the matter that the petitioner has an alternative an efficacious remedy of challenging the findings in miscellaneous proceedings before the Courts below. This petition is directed against the order dated 17-7-2006 declaring vacancy passed by respondent No. 1 against the petitioner Mohd. Idris S/o Mohammad Yanus.
(3.) THE writ petition is premature in view of decision rendered by this Court in Shyam Sundar Agarwal v. Smt. Gyanwati Devi and Anr. , 2005 (3) JCLR 397 (All) : 2005 (2) ARC 479, wherein relying upon a decision of Hon'ble the Apex Court in Achal Misra v. Rama Shanker Singh and Ors. , 2005 (2) JCLR 580 (SC) : (2005) 1 ARC 877, wherein it has been held that writ petition filed against the vacancy order is premature. In the case of Shyam Sundar Agarwal (supra) which is open decision of the Achal Misra (supra) the Court held, when any allotment/release order is passed, it will be open to the petitioner to challenge the order of declaring vacancy. THE paragraphs 3 and 4 of which the reliance has been placed by learned Counsel for the petitioner as under: (3) In view of the decision of Apex Court reported in 2005 (2) JCLR 580 (SC) : 2005 (1) ARC 877 (SC), Achal Misra v. Rama Shanker Singh and Ors. , Paragraph 13 relied upon by learned Counsel for the contesting respondent 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 the 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 Ors. (supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenging 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 cannot 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 aggrieve even thereafter, to approach the High Court. It would rally be a case of election of remedies. (4) In view of the observations made in the case of Achal Misra (supra) to me it appears that the petitioner can challenge the order declaring the vacancy, alongwith the order of allotment/release passed by the Rent Control and Eviction Officer. This writ petition, at this stage, is dismissed as pre- mature as and when any allotment/release order is passed against the petitioner, it will be open to the petitioner to challenge the order declaring the vacancy in the accommodation in dispute. Till any allotment or release order is passed, the petitioner shall not be evicted from the accommodation in dispute. For the reasons and the law stated above, the writ petition is dismissed as premature. .;