Mam Chandra Agarwal, J. - (1.) BY this petition under Article 226 of the Constitution of India, the petitioners who are seven in number and are in occupation of various portions of premises Nos. 1 -216 (new No. 1 -245) Mohalla Talla, Kathgodam, District Nainital challenge an order dated 24th March, 1990, passed by the Sub -Divisional Magistrate/Prescribed Authority, Rent Control, Haldwani, whereby he released the whole building in favour of the landlord in purported exercise of powers under Section 16(1)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act'). The landlord respondent has put in appearance through Sri Rajendra Dobhal, Advocate, who did not chose to file any counter -affidavit and the writ petition has been finally heard on merits at the admission stage.
(2.) THE respondent Harnam Singh Kapoor purchased the aforesaid property in a Court sale on 10th March, 1973. Admittedly, all the petitioners were occupying various portions of the building from before that date. The respondent, in his petition, copy of which is Annexure '5' to writ petition stated that the petitioners are in occupation of the various portions of this building illegally and the applications moved by them under Section 14 of the Act have been dismissed. He claimed that he requires the building for his own use and the said persons be evicted. Thus, eviction application was moved against seven persons. The Prescribed Authority without issuing any notice to the occupants as required by Rule 8 passed an order dated 24 -3 -1990 releasing the accommodation in question in favour of the landlord. A revision petition preferred by the petitioners before the District Judge, being Rent Control Revision No. 23 of 1993 has been dismissed by the IInd Addl. District Judge. The only ground for deeming accommodation to be vacant by the authorities below has been that the applications moved by the petitioners for regularisation of their tenancy under Section 14 of the Act were dismissed. Learned counsel for the petitioner contended that the release order is illegal because no notice was issued to the petitioners in terms of Rule 8 which requires that the District Magistrate, shall, before making any order of allotment or release in respect of any building which is alleged to be vacant shall be got inspected and the inspection shall be made in the presence of the tenant and the occupant. The order passed by the Prescribed Authority dated 24 -3 -1990 does not say that any notice was issued to the occupants. On the other hand, he has given a purported justification for not doing so by referring to a ruling to the effect that a prospective allottee of a building is not entitled to any hearing and notice. The petitioners were actual occupants of the building and it was admitted that they were there for a very long time. Therefore, the ascertainment of vacancy under Section 12 read with Rule 8 could not be done without issuing notices to them and giving them an opportunity of hearing.
(3.) FURTHER , in this case no order determining the vacancy has been passed and a direct order of release has been passed without declaring the accommodation to be vacant Under Section 16 only the vacant building can be allotted or released. Vacancy has to be determined with reference to Section 12 and Rule 8 and the order declaring the vacancy has to be pasted on the Notice Board of the District Magistrate for the information of the General Public. Nothing of the sort has been done in this case, as alleged by the petitioners and Sri Dobhal learned counsel for the respondent admitted that it was so. Further, the mere fact that there was no order of allotment in favour of the petitioners did not make them illegal occupants. It is not disputed that they are in possession for a very long time. According to the petitioners some of them are in possession for the last about 50 years and admittedly from before the respondent No. 3 purchased the same. They claim to be tenants. Section 14 of the Act reads as under: - - 14. Regularisation or occupation existing tenants. - -Not with standing 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 U.P. 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 authorised licensee or tenant of such building.;