K. C. Agarwal, J. - (1.) THIS is a petition under Article 226 of the Constitution for a writ of certiorari quashing the order and judgment of the IX Addl. District Judge, Allahabad dated March 26,1976. The circumstances which led to the filing of this petition are these.
(2.) HOUSE No. 128 Chowk Ganga Das, Allahabad belonged to one Laxmi Narain Chaddha. This was let out by him to Smt. Raj Kumari Bhatnagar. Laxmi Narain Chaddha died in 1969. In December 1974, Adarsh Kumar Chaddha and Smt. S. D. Chaddha, son and wife of Laxmi Narain Chaddha respectively, sold this house to Ganesh Lai Malviya, respondent no. 3. On April 21, 1975, S. K. Tandon, respondent no. 2, filed an application for allotment of a portion of the aforesaid house alleging that Smt. Raj Kumari Bhatnagar, the tenant in chief, had sub-let a portion of this premises illegally to Shambhu Nath Tandon, the petitioner, therefore, Smt. Raj Kumari Bhatnagar ceased to be the tenant of that portion and the said premises would be deemed to be vacant for the purposes of allotment under Sec. 12 read with section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, being Act No. 13 of 1972, hereinafter referred to as Act No. 13 of 1972. On the same date another application for allotment of this portion was filed by one Krishna Kant. As required by rule 8 (2) of the rules framed under this Act, the Rent Control and Eviction Officer directed the Rent Control Inspector to submit a report about the facts existing on the spot. On April 28, 1975, the Rent Control Inspector submitted a report to the effect that Sushil Kumar Tandon, respondent no. 2, was occupying a portion of the disputed house as a sub-tenant. Soon thereafter he submitted another report dated 14th May 1975 that Shambhu Nath Tandon claimed to be a tenant of this house since 1942. On May 15, 1975, the Rent Control and Eviction Officer finding that the house was not vacant, rejected the applications made for allotment. In the appeal, preferred by respondent no. 2, the order of the Rent Control and Eviction Officer was set aside and the case was remanded with a direction to decide it again after hearing the parties and giving them an opportunity of adducing evidence. Finding that Shambhu Nath Tandon had been occupying the portion from before the commencement of U.P. (Temporary) Control of Rent and Eviction Act, the Rent Control and Eviction Officer held on 16th January 1976 that the premises could not be deemed to be vacant as required by section 12 of U.P. Act No. 13 of 1972, hence was not available for allotment. In this view, the application for allotment was directed to be filed and consigned to record. Treating the aforesaid order as one of dismissal of the application for allotment, the respondent no. 2 preferred an appeal before the District Judge under section 18 of U.P. Act No. 13 of 1972 without impleading Shambhu Nath Tandon, as a party. Holding that in the circumstances specified in section 12(1) (b) the vacancy should be deemed to have occurred, the learned Addl. District Judge allowed the appeal and sent back the case to the Rent Control and Eviction Officer with a direction to notify the vacancy and to allot the portion to a suitable applicant. Aggrieved, Shambhu Nath Tandon and Smt. Raj. Kumari Bhatnagar filed this writ petition.
(3.) IN order to appreciate the contention advanced by counsel for the parties, it is necessary to make a brief survey of the provisions of U.P. Act No. 13 of 1972. This Act was passed with a view to provide, inter alia, for the regulation of letting and rent, and the eviction of tenants from certain classes of buildings situated in urban areas. On its enforcement with effect from 15th July, 1972, the U.P. (Temporary) Control of Rent and Eviction Act was repealed. This new Act provided for certain new matters, which were earlier not spoken to in the old Act. Chapter III of this deals with Regulation of Letting. Section 11 imposes prohibition on letting without allotment order. Section 13 in its terms, places restriction on occupation of building without allotment or release. Section 15 casts obligation on landlord and tenant to intimate a vacancy to District Magistrate. Section 12 creates fiction laying down the circumstances when a vacancy would be deemed to have occurred under section 16 on the intimation of vacancy or otherwise, the District Magistrate may either allot the premises or release it in favour of the landlord on being satisfied that the same is bona fide required by him. An order passed under section 16 is subject to an appeal under section 18 of the Act. Now, adverting to the points the first ground of attack of the learned counsel for the petitioner was that Section 12 (1) (b) being not applicable to a case, where illegal sub-letting took place before the enforcement of U.P. Act No. 13 of 1972, the appellate court had no jurisdiction to hold that the possession of Shambhu Nath Tandon was illegal and that the portion in his occupation was available for allotment. The question whether a sub-letting before coming into force of the Act is within the purview of section 12 (1) (b) depends upon the construction of that clause, which reads :-;