M.P.Saxena, J. - (1.) THE petitioners are the owners of building No. D-39/119 situate in Hauz Katra, Varanasi, and are carrying on sole selling agency business of Cinni Fans, Tullu and Shiva Water pumps in the first, second and third floors of it. The respondent No. 3 are tenants of a shop in the ground floor of the same building. As the petitioners require accommodation on the ground floor for a show-room for their products they requested the respondent No. 3 to vacate the shop but in vain. Therefore, on 7th September, 1971, the petitioners filed an application under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the old Act) for permission to file a suit for ejectment of respondent No. 3. The latter filed objections. During the pendency of the said application the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter callled the new Act) came into force. The petitioners got their application amended order to bring it in conformity with in provisions of the new Act because in view of Section 43 (2) (a) it stood transferred to the prescribed authority and was deemed to be an application under Section 21 of the new Act and was to be disposed of in accordance with the provisions of this Act. The respondent No. 3 also got their objections amended. On 6th of April, 1973, the prescribed authority released the shop in favour of the petitioners under Section 21 (1) (a) of the new Act. The respondent No. 3 filed an appeal before the District Judge, Varanasi, which was allowed on 29th of May, 1973. Therefore, the petitioner filed a petition under Article 226 of the Constitution, inter alia on the grounds that sub-rule (2) of Rule 16 framed under the new Act is ultra vires the Act. The reed single Judge who heard the petition agreed with this contention but considering that the question is of vital importance and likely to arise in a number of cases and also because in the case of Gorakhnath Yagnik v. State Government, (1975) 1 All LR 222) a Division Bench of the Lucknow Bench of the Allahabad High Court has taken a contrary view, he referred the following question for consideration of the Full Bench: "Whether sub-rule (2) of Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, is invalid being ultra vires of the powers of the State Government."
(2.) IT will be useful before discussing the question to set out the relevant provisions of the new Act. Section 21 reads: "21. Proceedings for release of building under occupation of tenant - (1) The prescribed authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely- (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the object of the trust; (b) that the building is in dilapidated condition and is required for purposes of demolition and new construction: Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds mentioned in clause (a) unless a period of three months has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years. Provided further that if any application under clause (a) is made in respect of any building in which the tenant is engaged in any profession, trade or calling, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount equal to two years' rent as compensation and may, subject to rules, impose such other conditions as he thinks fit. Provided also that no application under clause (a) shall be entertained. (i) ................................. (ii) ................................. (iii) .... ......................... Explanation - In the case of a residential building (i) where the tenant or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained:- (ii) Where the landlord was engaged in any profession, trade, calling or employment away from the city, municipality, notified area or town area within which the building is situated and by reason of the cessation of such engagement he needs the building for occupation by himself for residential purposes, such need shall be deemed sufficient for purposes of clause (a). (iii) where the landlord is a member of the armed forces of the Union and the prescribed authority under the Indian Soldiers (Litigation) Act 1925, has issued a certificate in his favour that he is serving under special condition within the meaning of Section 3 of that Act then, his representation that he needs the building for residential purposes for members of his family whose particulars are specified in the application shall be deemed sufficient for purposes of clause (a); (iv) the fact that the building under tenancy is a part of a building the remaining part whereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona fide required by the landlord. 2. ......... Explanation ........ 3. No order shall be made under sub-section (1), or sub-section (2), except after giving to the parties concerned a reasonable opportunity of being heard. 4. ............ 5. ............ 6. ............ Section 41 confers rule-making power on the State and reads as follows: "The State Government may by notification in the Gazette make rules to carry out the purposes of this Act, including any rules prescribing fees in respect of any proceeding under this Act."
(3.) SECTION 42 relates to laying of rules etc., before the Legislature.;