A. N. Varma, J. - (1.) -This petition has been placed before us upon a reference by a learned Single Judge who found that there was a conflict of views on the interpretation and scope of section 16 (5) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act for short) between two learned Single Judges of this Court, viz., Brother B. N. Sapru and Brother S. C. Mathur. The decision of Brother Sapru is reported in 1984 (1) ARC 391, Shyam Dass v. Delegatee District Magistrate, Bijnor while that of brother Mathur is reported in 1981 ARC 241, B. Solomon v. Syed Iltifat Hussain. The reference is by brother V. K. Mehrotra who seems to agree with the opini on expressed by Brother S. C. Mathur.
(2.) THE submissions advanced by the learned counsel for the parties before us may be divided into two part. First, dealing with the issue whether the application filed by Dr. B. S. Saxena, the respondent no. 2 (one of the co- landlords of the premises in question) under Sec. 16 (5) of the Act for review of order of allotment dated 1-2-78 passed in favour of the petitioner Madhu Gopal, was maintainable in law and, second, whether the order of allotment was not made in accordance with clause (a) or(b) of section 16 (1). The difference of opinion that has led to the reference is in regard to the first of these two questions. We will, therefore, deal with that issue first. In order to appreciate the controversy it will be appropriate to have a look at the relevant provisions. Section 16 (1) reads as follows : " 16. Allotment and release of vacant building : (1) Subject to the provisions of the Act, the District Magistrate may by order : (a) require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order) or ; (b) release the whole or any part or such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order). Provided that in the case of a vacancy referred to in sub-section (4) of section 12, the District Magistrate shall give an opportunity to the landlord or the tenant as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a). (2)............ (3)............ (4)............ (5) (a) Where the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with clause (a) or clause (b) as the case may be, of sub-section (1), the District Magistrate may review the order : Provided that no application under this clause shall be entertained later than seven days after the eviction of such person. (b) Where the District Magistrate on review under this sub-section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted, back into possession of the building, and may for that purpose use or cause to be used such force as may be necessary. (6)............ (7) Every order under this section shall subject to any order made under Sec. 18 be final. (8)............ S. C. Mathur, J. with whom Brother V. K. Mehrotra seems to concur is of the opinion that a landlord who was not in actual physical possession until the making of the allotment order or his eviction in pursuance thereof is not competent to make an application for review of the allotment order under section 16 (5) of the Act. B. N. Sapru, J. on the other hand, expressed the view that the words claiming to be a lawful occupant of the building occurring in section 16 (5) (a) refers only to the words ' any other person ' immediately preceding those words and not to the landlord. He is clearly of the opinion that whether in actual physical possession or not the landlord has right to apply for review under section 16 (5). The same view has been expressed by Hon'ble N. D. Ojha, J. (as he then was) in the case of Niren Kumar Das v. The District Judge, Pilibhit. reported in AIR 1977 Alld. 47 = 1977 AWC 148.
(3.) BEFORE we elaborate these views and comment upon them, we may briefly set out the essential facts which lie within a narrow compass. Premises no. 1/300, Rawatpara Agra is a shop on the ground floor of which there are five owners, namely, R. C. Saxena, D. C. Saxena, Dr. B. S. Saxena (the respondent no. 3 herein) Veeresh Saxena (the respondent no. 4 herein) and Smt. Shanti Saxena. One of these co-owners Veeresh Saxena is said to have been carrying on chemist business in the shop at the relevant time. On 28-1-78 he wrote to the concerned authority under the Act that he was vacating the shop as he desired to close down his business. Some enquiry is said to have been carried out by the rent control inspector as regards whether there was a vacancy. A notice was issued to Veeresh Saxena to appear before the Prescribed Authority on 31-1-78 on which date he appeared and filed an affidavit stating that he was vacating the shop and that the same may be allotted to the petitioner Madhu Gopal. It is said that there was no other application for allotment. Acting on the affidavit of Veeresh Saxena the Prescribed Authority allotted the shop by an order dated 1-2-78 in favour of the petitioner Madhugopal. On 25-2-78 Dr. B. S. Saxena filed an application for review under section 16 (5) (a) challenging the allotment order on the assertion that the order had been procured by the petitioner in collusion with Veeresh Saxena without any notice to him and contrary to the provisions of the Act and the Rules framed thereunder. It was alleged that Veeresh Saxena surreptitiously got the shop allotted in favour of the petitioner without any notice to Dr. Saxena and other co-owners. It was further alleged that Veeresh Saxena was only one of the co-owners and he had no right to give a consent for allotment on behalf of everyone. The business which was being carried on in the shop in dispute was ancestral business under the name and style of Messrs Devi Prasad and Sons in he too had a share and consequently he would be deemed to have been in occupation of the building. The accommodation in question had never been let out before nor did he (Dr. Saxena) want to let the same out. Allegations of fraud and misrepresentation were also made in this application. The prayer was that the order of allotment dated 1-2-78 be reviewed and cancelled and suitable reliefs be granted to the applicant.;