SHRI SWAROOP NARAIN SRIVASTAVAversusTHE IVTH ADDL. DISTRICT JUDGE AND ORS.

A                   SHRI SWAROOP NARAIN SRIVASTAVA
                                           v.
               THE IVTH ADDL. DISTRICT JUDGE AND ORS.
        '
                                  AUGUST 8, 1994

B             [K. RAMASWAMY AND N. VENKATACHALA, JJ.)

         U.P. Urban Buildings (Regulations of Letting Rent and Eviction) Act,
    1972: Sections 12(3) and (4), 16(1)(a) (b).

C          'Vacant Bui/ding'-i..andlord's application for release ordei--Fomier
    tenants' application for re-allotmen1:-1Jrder--Fo1111er tenants' application for
    re-a//otmenl-f'rior and preferable consideration of-Held: Landlord's ap-
    plication require prior and preferable consideration.

            UP. Urbran Buildings (Letting, Rent and Eviction Rules, 1972 : Rules
D 10, 13(4) and 20(6}-Provis<>--Applicability of
          By virtue or an allotment order made under the provisions or the
 · U.P. Buildings (Regulation or Letting, Rent & Eviction) Act, 1972, S
   became a tenant in a house belonging to the appellant-landlord. On bis
E death, respondent Nos. 2 to 4, his wife and sons became joint tenants or
   the disputed house. As one or the joint-tenants was allotted a separate
   reside.ntlal house in the same locality the disputed house became vacant
   building within the meaning or sub-section (3) and (4) or Section 12 or the
   Act. Thereafter the appellant-landlord made an application under Section
   16(1)(b) or the Act for release or the disputed house in bis favour while
F the respondent-tenants made an application under section 16(1)(a) ror
   re-allotment District Magistrate made a release order In ravour of the
   appellant on the ground that Landlord's application was to be decided in
   prererence to that or the former-tenants. On revision the Additional Dis·
   trict Judge set aside the order or the Additional District magistrate and
G remitted the case to him with a direction to decide reallotment application
   made by the rormer tenants In prererence to the application made by the
   Landlord for release order in bis favour. The High Court upheld the order
   or the Additional District Judge. The appellant-landlord preferred appeal
   before this Court.

H           Allowing the appeal, this Court
                                          438
S.N.SRIVASfAVA v. TIJEIVIHADDL DIS1T. JUDGE[VENKATACHALA,J.]             439

      HELD : 1. The District Court, as well as, the High Court had fallen       A
into a grave error in thinking that the hardship to which the former
tenants would be put could be obviated in the event the building which had
become vacant on account of its falling vacant under sub-sections (3) and
(4) of Section 12 of the Act is allotted to them, when such a view cannot
receive support either from the provisions of the Act or from the               B
provisions of Rules. All that bas happened is when sub-rule (6) of Rule 10
of the Rules prohibited the making of the application by certain persons,
proviso (2) thereto enables persons like respondents 2 to 4 who must be
deemed to have vacated the residential building to make an application
for reallotment of such building. If that be so, permissibility to make an
application for reallotment by respondents 2 to 4, cannot entitle them for      C
prior consideration and disposal of their application for reallotment by
the District Magistrate in preference to the application for release made
by the landlord, the appellant or any other applications of the persons who
are given preferential claim for allotment of a vacant building under the
provisions of the Act and the Rules. (442-F to H, 443-A]                        D
       2. Sub-rule (4) of Rule 13 expressly states that unless an application
made by the landlord for release of a vacant building is rejected, no
allotment of the vacant building covered by that application could be made.
If in terms requires consideration of the application for release of vacant
building at the first instance in preference to other application for allot-    E
ment. Thus the Rule requires the consideration of the application for
release made by the landlord in respect of the vacant building and decision
thereon in preference to consideration of any other application for allot-
ment or re- allotment made In respect cif that vacant building. (444-B, CJ

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5451 of                  F
1994.

     From the Judgment and Order dated 28.4.83 of the Allahabad High
Court in W.P. No. 6189 of 1982.

        G.L. Sanghi, Dbruv Mehta and S.K. Mehta for the Appellant.              G
        R.K. Maheshwari and Vineet Maheshwari for the Respondents.

        The Judgment of the Court was delivered by

        VENKATACHALA, J. Special leave sought for in this petition is           H
    440                   SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A granted and we have heard learned counsel for the parties on the meriis
    of the appeal.

           For a residential building fallen vacant under sub-sections (3) & ( 4)
    of Section 12 of the U .P. Urban Buildings (Regulation of Letting, Rent &
    Eviction) Act. 1972 - "The Act" , if under sub-section (1) of Section 16 of
B   the Act, an application is received from the landlord of that vacant building
    for its release in his favour and another application is received from the
    former tenant of that vacant building for its reallotment in his favour, which
    of those two applications require priority in the matter of their disposal by
    the District Magistrate concerned, is the question arising for our considera-
C   lion in this appeal.

           As it would be advantageous to refer to the facts which have given
    rise to the said question, brief mention of those facts could be made before
    its consideration.

D         Sliri Swaroop Narain Srivastava, the appellant in this appeal, is the
    landlord of House No. 395/31, Raj Bhawan, Kashmiri Mahalia, Lucknow -
    'the disputed house'. By an allotment order made under the Act, that
    disputed house had been allotted in favour of one Sita Ram Shakya and
    he became its tenant.
E          Since Sita Ram Shakya, the tenant of the disputed house, died on
    185.1973. Respondent No. 2, the wife of the deceased. Respondent 3 and
    4, the sons of the deceased, and Dr. R.R.P. Singh, another son of the
  ·deceased, became the joint tenants of the disputed house as the heirs of
  . the deceased living with him. However, when one of the said tenants of the
F disputed house Dr. R.R.P. Singh, by an allotment order made under the
   Act in his favour on 30.3.1975, got allotted another house in the same
    locality, a question arose whether the disputed house had fallen vacant by
    operation of subsections (3) & (4) of Section 12 of the Act. That question
   ultimately came up for consideration before a Full Bench of the Allahabad
    High Court on a reference made to it in a writ petition before that High
G Court. It was held by its order dated 12.3.1981 that the disputed house had
    fallen vacant under sub-sections (3) & (4) of Section 12 of the Act, when
    one of the Joint tenants of the disputed house was allotted a separate
    residential house in the same locality under the provisions of the Act.
    Subsequently, the writ petition which had been filed in the High Court
H disputing the decision of the Revisional Authority that the disputed house
    S.N.SRIVASTAVA v. TilEIV1llADDL.DISTf.JUDGE[VENKATAcHALA,J.]           441

    had fallen vacant, w~s dismissed by an order made by the High Court on A
    23.4.1981. As a result of the dismissal of the said writ petition, an applica-
    tion which had been made by the appellant under Section 16(1)(b) of the
•   Act for release of the disputed house in his favour and an application which
    had been made under Section 16(1)(a) of the Act by respondents 2 to 4
    for re-allotment of the disputed house in their favour came up for con- B
    sideration before the Additional District Magistrate (city) Lucknow in case
    No.62/193 of 1982. That Additional District Magistrate considered the said
    application made by the appellant for release of the disputed house in
    preference to the other application made by the respondents 2 to 4 for
    reallotment of the disputed house in their favour and granted the applica-
    tion made by the appellant for release of the disputed house in his favour,
                                                                                  c
    as in his view, when there was an application for release of the vacant
    building made by the landlord and when there was an application made by
    the former tenants for reallotment of the vacant building, the consideration
    of the application of the landlord had to be done on a preferential basis.
    On such consideration of the application for release of the disputed house D
    made by the appellant, the Additional District Magistrate found on the
    basis of evidence placed before him that the appellant-landlord required
    the disputed house for his bona fill£ use and occupation. Consequently, he
    made a release order in respect of the disputed house in favour of the
    appellant on 24.8.1982. However, he allowed one months time to respon- E
    dents 2 to 4 to vacate the disputed premises so as to enable the appellant
    to occupy it. The litigation did not come to an end there. Respondents 2
    to 4 questioned the correctness of the order of the Additional District
    Magistrate by filing a Revision Petition RR No. 111 of 1982 in the Court
    of the District Judge, Lucknow. The !Vth Additional District Judge, Luck-
                                                                                   F
    now, who heard that Revision Petition allowed it by setting aside the order
    of Additional District Magistrate, Lucknow dated 24.8.1982 and remitting
    the case to Additional District Magistrate (City), Lucknow with a direction
    to him to decide the reallotment application made by respondents 2 to 4
    in preference to the application made by the appellant for release of the
    disputed house in his favour. When the appellant filed a writ petition W.P. G
    No. 6189 of 1982 against the said order of the Court of the !Vth Additional
    District Judge in the High Court of Judicial at Allahabad, that High Court
    dismissed the writ petition upholding the impugned order of the IVth
    Additional District Judge, Lucknow. The said orders of the !Vth Addition-
    al District Judge, Lucknow and of the High Court are appealed against by H
    442                  SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A the appellant in the present appeal by special leave.

          The disputed house, a residential building, of which the appellant
  was the landlord, had fallen vacant under sub-sections (3) & (4) of Section
  12 of the Act, as is held by the Full Bench of the Allahabad High Court
B in its judgment dated 12.3.1981. This aspect of the case was not disputed
  before us. Therefore, the only question which requires our consideration
  in this appeal is whether the application for release of the vacant disputed
  house was rightly decided by the Additional District Magistrate in
  preference to the application for reallotment of that vacant disputed house
  made by respondents 2 to 4, or whether the application for reallotment of
C the vacant disputed house made by respondents 2 to 4 alone required to
  be considered on preferential basis as is held by the District Court in a
  revision petition before it and the High Court in the writ petition before
  it. The District Court and the High Court as seen from their judgments
  have taken the view that the application for reallotment made by respon-
D dents 2 to 4 required prior consideration and disposal as against the
  application for release made by the appellant because proviso (b) of .-
  sub-ritle (6) of Rule 20 when enabled respondents 2 to 4 to seek reallot-
  ment of the disputed house which had fallen vacant according to sub-sec-
  tion (3) of Section 12· of the Act, that application for reallotment of the
   disputed house made by Respondents 2 to 4 required to be considered on
E a preferential basis. According to them, such preferential consideration of
   reallotment application made by respondents 2 to 4 would be necessary to
   obyiate the hardship which they may have to suffer in the event of the
   vacant disputed house, is not allotted in their favour. In our view, the
   District Court, as well as, the High Court had fallen into a grave error in
F thinking that the hardship to which the former tenants could be out could
  be obviated in the event the building which had become vacant on account
   of its falling vacant under sub-sections (3) & (4) of Section 12 of the Act
   is allotted to them, when snch view cannot receive support either from the
   provisions of the Act or from the provisions of the U.P. Urban Buildings
   (Letting Rent & Eviction) Rules, 1972 - 'the Rules', All that has happened
G is when sub-rule (6) of Rule 10 of the Rnles prohibited the making of the
   application by certain pursons, proviso (2) thereto enables persons like
   respondents 2 to 4 who must be deemed to have vacated the residential
   building to make an application for reallotment of such building. If that be
   so, permissibility to make an application for reallotment by respondents 2
H to 4, cannot entitle them for prior consideration and disposal of their
S.N.SRIVASrAVA v. THENIHADDLDIS'IT. JUDGE[VENKATACHALA,J.]                443

application for reallotment by the District Magistrate in preference to the      A
application for release made by the landlord, the appellant or any other
applications of the persons who are given preferential claim for allotment
of a vacant building under the provisions of the Act and the Rules. Sub-
section (1) of Section 16 of the Act which permits the filing of applications
before the District Magistrate by the landlord for release of the building       B
fallen vacant and by others for reallotment of such building insofar as is
material reads :

         "16. Allotment and release of vacant building. - (i) Subject to the
         provisions of the Act, the Distriet Magistrate by order -

         (a) require the landlord to let any building which is or has fallen
                                                                                 c
             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 of such building, or any land         D
             appurtenant thereto, in favour of the landlord (to be called
             a release order).

             Provided that in the case of vacancy referred to in sub-section
         (4) of section U, the District Magistrate shall give an opportunity     E
         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)."                                    ·

       Requirement of the proviso is admittedly fulfilled because of the
holding of the Full Bench of the High Court that the disputed hou8e had          F
fallen vacant.

       When Rule 10 of the Rules which provides for allotment procedure
is seen, nowhere it is provided that an application for allotment of vacant
building should be considered in preference to the application made for          G
release of the vacant building by the landlord. On the other hand, Rule· 13
which provides the procedure for consideration of the application made
for release of a vacant building by the landlord, by its sub-rule (4) requires
that landlord's application for release under the Rules shall, as far as
posstole, be decided within one month from the date of its presentation
and no allotment in respect of a building covered by an application in that      H
    444                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A   Rule shall be made unless such application has been rejected. Thus, when
    the sub-rule (4) of Rule 13 expressly states that unless an application made
    by the landlord for release of a vacant building is rejected, no allotment of
    the vacant building covered by that application could be made, it in terms
    requires consideration of the application for release of vacant building at
    the first instance in preference to other application for allotment. There-
B   fore, it must be held that the Rule requires the consideration of the
    application for release made by the landlord in respect of the vacant
    building and decision thereon in preference to consideration of any other
    application for allotment or re-allotment made in respect of that vacant
    building. If that be our answer to the question under consideration the
C   orders of the District Court and the High Court appealed .against in this
    appeal become unsustainable and require to be interfered with.

          In the result, we allow this appeal, set aside the order dated
    15.12.1982 of the Court of Additional District Judge made in Rent Revision
    No. 111 of 1982 and order dated 28.4.1983 of the High Court made in W.P.
D   No. 6189 of 1982 and restore the order dated 24.8.1982 of the Additional
    District Magistrate (City), Lucknow made in Case No. 62/193 of 1982 with
    the modification that the respondents 2 to 4 or any person claiming,
    through them who may be in possession of the disputed house shall put the
    appellant in possession of the same forthwith. However, in the facts and
E   circumstances of this Civil Appeal respondents 2 to 4 shall pay to the
    appellant-landlord costs of this appeal which we quantity at Rs. 20.000.

    T.N.A.                                                      Appeal allowed.