LexGANPAT ROY AND OTHERS ETC. versus THE ADDITIONAL DISTRICT MAGISTRATE AND OTHERS ETC.
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c D E F G H '. GANPAT ROY AND otHERS Etc. v, THE ADDITIONAL DISTRICT MAGISTRATE AND OTHERS ETC. . :n ·~·!1 .•• March 19, 1985 • [V.D. TULZAPURKAR, v. BALAKRISHNA ERADI and D.P. MADON, JJ.] .: Rent Control and Evictioiz- , .. f.f.P. Urban ~uildings (Regulation of Letting, Rent and Eviction) Act 1!112, Sections 12(2} and (4), 16, 18, 34(8} and U.P. Urban Buildings (Regu- lation of Letting, Rent and Eviction) Rules 1972, Rules 8, 12 and 19 -Deemed · vacancy - Notificalion of deemed vacancy - Opportunity of hearing as pro~ vided in Rules, 1nust be afforded to the tenant before notifying the vacancy - Statute providing no efficacious relief to tenant of premises in whose case it "is found.that there is a deenied vacancy - Whether a writ under Articles 226 and 227 by such tenant is maintainable. 1 under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non-residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new part- nCr a person who was not a member of his family. The definition of '.'family'~ given in clause (g) of section 3 of the Act does not expressly include a son-in- la"Y'Or a daughter-in law. In each of the two appeals, the appellant/tenant admitted into his part- nership firm his son-in-law and 'cir daughter-in-law, as the case may be. There- upon, the landlord 'respondent in each appeal filed an applicat:on for release of his non-residential buliding in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permis- sion to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellantsftenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub-Section (2) of Sectio., 12 of the Act. The High Court, relying upon a judgment of a two-Judge Bencn of the Supreme ' eourt in Trilok. Singh & Co. v. District Mag/straie, Lucknow, &. ,Ors.·, (1976) .:l $,C.R. 942 • a decision given prior to the amendment of the Act· by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and· Eviction) AmelldfneD.t ·Act 1976.(for shqrt, the 19.76 Amendn1ent Act), dismissed·. both the· ·petitions . as pre·mature holding that where a release of a building is sought, the matter lies ~nly between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these ·appeals .. Allowing the· appeals ·and directing the High C0urt ·10 ' 1 relieat~·on ll1Crits 'th6 writ petitions filed by the appellants, the Court, ' HELD' l(i) Under the proviso to Section l~(ll, in the case of a . vacancy referred to in Section 12(4}, the District Magistrate is to 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) of Section 16(1), that is, before making an alotment. order. This provis'o was inserted by ·the 1976 amendment Act. Strangely .enough, in the case of release of the premises to the landlord, the proviso does not require . any_ such opportunity to be given to the tenant who would be the person affected by that order. Sub-section (2) of Section 16 sets out the circums- tances in which a building or any part thereof may be released to the landlord. Under Sub-section (7) every order made under that Section, subject to ahy order made under .Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re-allotment -or release but any person aggrie"'.ed by a final order of allotment, . re-allotment or release may, within fifteen days ·from the date of such order, prefer a revision to the.Districf Judge. On such application being made, the revising authority may confirm or ~escind the final order of allotment, re-allot- _ment or releas
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