Rajesh Kumar Agrawal , Vikram Nath, JJ. - (1.) THIS bunch of writ petitions has been placed before us pursuant to the order of Hon'ble the Chief Justice dated 17.10.2006 passed in Writ Petition No. 30203 of 2001 as the learned Single Judge in its order dated 18.9.2006 in the said writ petition was of the view that the following questions required consideration by Larger Bench - (i) Whether in view of Achal Misra v. Rama Shankar Singh and others : 2005 (59) ALR 591 (SC) : 2005 (29) AIC 110, the petitioner can challenge the order declaring the vacancy along with the order of the allotment/release passed by the Rent Control and Eviction Officer? (ii) Whether the writ petition challenging the order of declaration or vacancy needs no interference by the High Court under Article 226 of the Constitution on the ground that it is against interlocutory order or premature though neither Act says so nor Supreme Court has held so? (iii) Whether as soon as the release application under section 16(1)(b) is file the person aggrieved by order declaring vacancy cannot contest or challenge the same as per law laid down by this Court as well as by Hon'ble Supreme Court? (iv) Whether being declared unauthorized occupant he is not entitled for being considered for allotment under section 16(1)(a) as per Rule 10(5)(d)? (v) Whether the remedy of revision will become redundant once the order of release is made? (vi) Whether Shyam Sunder Agarmal's case has correctly interpreted the law laid down by the Apex Court in Achat Misra's case (supra)? (viii) Whether a person can be left remediless and made to wait till the order of allotment/release for declaration of vacancy in the accommodation in dispute is passed by the authority/Rent Control and Eviction Officer and what would be the status of the landlord, prospective allottee and the tenant during this period. Since the question referred for opinion by Larger Bench are purely legal in nature and involve interpretation of judicial pronouncements and legal provisions as such we are not entering into the facts of the case.
(2.) ACCORDING to us, the basic questions which require consideration, as it appears from the reading of the reference order is firstly as to whether the decision of learned Single Judge in the case of Shyam Sunder Agarwal v. Smt. Gyanwati Devi and another : 2005 (60) ALR 611 is correct or not and secondly what are the remedies available to an aggrieved party against an order declaring vacancy under section 12 of the Act. Provisions relating to control of letting and rent of accommodation was first introduced by means of Government Orders issued under the Defence of India Rules, 1939. In order to continue such provisions, a temporary Act known as the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 was enacted. The life of the said temporary Act has to be extended from time to time. Further in order to control the letting and rent of accommodations and further in view of the continuing increase in the urban population and the relatively slow pace of house building activity, mainly, due to shortage of materials, the problem of shortage of accommodation had become chronic which ultimately resulted into enactment of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as the Act).
(3.) UNDER the scheme of the Act, occupation of a building covered by the provisions of the Act was to be controlled by the District Magistrate. Letting of buildings covered by the Act by the landlord is prohibited except by way of allotment under section 11 of the Act. Further under section 12 of the Act a building would be deemed to be vacant where under the given conditions the landlord or tenant ceased to occupy the same. Where any person having ceased to occupy any building was occupying the same without an order of allotment or release under section 16 of the Act and in contravention of the provisions of the Act, such person was deemed to be an unauthorised occupant under section 13 of the Act. Occupation of a building under given circumstances would stand regularised under section 14 of the Act. The Act further provided that unauthorised occupants were liable to be evicted from the accommodation in their unlawful possession and such building would be available for allotment in accordance with the provisions of the Act and the Rules framed thereunder. For determining whether a person had ceased to occupy a building or not a procedure was prescribed under section 12 of the Act and also the Rules framed under the Act. It provided that upon information being received by the District Magistrate an enquiry could be embarked upon by inspection of the premises by the Rent Control Inspector and based on said report, after giving opportunity to the concerned parties including the unlawful occupants, the status of the occupants could be determined. In case it was found that the occupation was unlawful or had become unlawful, the building could be declared vacant and would be available for allotment or release to the landlord by the District Magistrate under section 16 of the Act.;