1. List revised. None appeared on behalf of petitioner. However, I have perused the record.
2. This writ petition is directed against the order dated 30.07.2003 passed by Additional District Judge, Court No. 1, Varanasi.
3. The dispute relates to shop situate in premises No. B8/98 Bada Gambhir Singh, Police Station Bhelupur, Varanasi of which the petitioner, Smt. Shefali Chatterji wife of late Kartik Kumar Chatterji is the landlady and respondent no. 2, Sri Om Prakash Tewari is the tenant since 1990.
4. The petitioner filed an application under Section 12 read with Section 16(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") for release of shop in question alleging that respondent no. 2 was let out the premises only for 11 months and after expiry of said period in August, 1991 he ceased to be a legal occupant thereof and, therefore, is liable to be ejected. Since petitioner needs the accommodation in question for settling her daughter-in-law by commencing a business by converting some part of house in question in commercial accommodation, therefore, it should be released in her favour.
5. The application was registered as Case No. 84 of 1991. The Rent Control and Eviction Officer/Additional District Magistrate (Civil Supply), Varanasi (hereinafter referred to as the "RCEO") declared accommodation in question vacant by its order dated 28.05.1994 and directed for notification of vacancy for further proceedings for allotment. Subsequently vide order dated 11.04.1996 the petitioner's application for release of accommodation in question was allowed and it was released in her favour by RCEO.
6. The respondent no. 2 took up the matter in Rent Revision No. 196 of 1996 whereupon the Additional District Judge has decided revision vide judgment dated 30.07.2003 setting aside RCEO's order of release and allowed revision. The Revisional Court held that once the accommodation has been let out by a landlord illegally without any letter of allotment and in violation of statutory provisions of Act, 1972, such a landlord would not be entitled for release of accommodation under Section 16 of Act, 1972. The Revisional Court relied on this Court's decision in Ram Kishan Vs. District Judge, Haridwar, 1991(1) Judicial Civil Law Reference 565; Ram Nath Sehgal Vs. District Judge, Kanpur Nagar and others, 2002(48) ALR 418; and, Jagdish Vs. District Judge, Kanpur Nagar and others, 2002(46) ALR 677 and following the said authorities he took the aforesaid view and held that shop in question has rightly been declared vacant but the same could not have been released in favour of landlord on account of her conduct.
7. This Court (Hon'ble S.P. Mehrotra, J.) vide his Lordship's detailed order dated 09.09.2003 passed in Writ Petition No. 37767 of 2003, Ajay Pal Singh Vs. District Judge, Meerut and others, made reference to Larger Bench formulating following three questions:
"1. Whether in case a landlord lets a building/accommodation covered under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) to a person without allotment order, and the building/ accommodation is declared vacant on account of such letting, the landlord is deprived of seeking release of such building/ accommodation under Section 16(1)(b) of the said Act?
2. Whether the release application filed by such a landlord under Section 16(1)(b) of the said Act is liable to be ignored, and the release order passed on such application is void and cannot be given effect to?
3. Whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India can deprive such a landlord of his right to seek release of the aforesaid building/accommodation under Section 16(1)(b) by issuing declaration declaring the release order in favour of such a landlord as void, and directing the District Magistrate / Delegated Authority not to give effect to such release order?"
8. The Court made above reference finding that the decision in Kandhaiya Lal Vs. The Rent Control Officer/Upper Nagar Magistrate IIIrd, Kanpur Nagar and others, 2002(1) ARC 551 was in variance with this Court's decisions in Ram Nath Sehgal (supra) and Jagdish (supra).
9. The aforesaid reference has now been answered by a Division Bench consisting of Hon. Dr. B.S. Chauhan, J. (as His Lordship then was) and Hon. Arun Tandon, J. vide order dated 05.02.2008 and the aforesaid questions have been answered as under:
"(a) Landlord is not deprived of his legal right to make a release application in respect of a building, which had been earlier given in possession, by him, to an unauthorized occupant in violation of the provisions of Act No. XIII of 1972.
(b) The release application made by the landlord cannot be ignored nor the order passed thereon can be termed to be void or of no effect.
(c) The High Court in exercise of powers under Section 226 of the Constitution of India need not declare the order made in favour of such a landlord as void, in view of the answer given to question no. 1, referred to above."
10. In view of the issues as aforesaid answered by Division Bench it is evident that decisions relied on by Revisional Court are no longer a good law and, therefore, the revisional order cannot sustain.
11. The writ petition is accordingly allowed. The revisional order dated 30.07.2003 is hereby set aside. The matter is remanded to Revisional Court to consider Rent Revision No. 196 of 1996 afresh in accordance with law after giving due opportunity of hearing to all concerned parties expeditiously and in any case within a period of three months from the date of production of a certified copy of this order. No costs.
Order Date :- 05.09.2012 AK