CHANDRA KUMAR SAH Vs. DISTRICT JUDGE

JUDGEMENT

(1.) THE petitioners are the owners of building No. D-39/119 situate in Hauz Katra, Varanasi, and are carrying on sole selling agency business of Cinni Fans, Tullu and Shiva Water pumps in the first, second and third floors of it. The respondent No. 3 are tenants of a shop in the ground floor of the same building. As the petitioners require accommodation on the ground floor for a show-room for their products they requested the respondent No. 3 to vacate the shop but in vain. Therefore, on 7th September, 1971, the petitioners filed an application under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the old Act) for permission to file a suit for ejectment of respondent No. 3. The latter filed objections. During the pendency of the said application the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter callled the new Act) came into force. The petitioners got their application amended order to bring it in conformity with in provisions of the new Act because in view of Section 43 (2) (a) it stood transferred to the prescribed authority and was deemed to be an application under Section 21 of the new Act and was to be disposed of in accordance with the provisions of this Act. The respondent No. 3 also got their objections amended. On 6th of April, 1973, the prescribed authority released the shop in favour of the petitioners under Section 21 (1) (a) of the new Act. The respondent No. 3 filed an appeal before the District Judge, Varanasi, which was allowed on 29th of May, 1973. Therefore, the petitioner filed a petition under Article 226 of the Constitution, inter alia on the grounds that sub-rule (2) of Rule 16 framed under the new Act is ultra vires the Act. The reed single Judge who heard the petition agreed with this contention but considering that the question is of vital importance and likely to arise in a number of cases and also because in the case of Gorakhnath Yagnik v. State Government, (1975) 1 All LR 222) a Division Bench of the Lucknow Bench of the Allahabad High Court has taken a contrary view, he referred the following question for consideration of the Full Bench: "Whether sub-rule (2) of Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, is invalid being ultra vires of the powers of the State Government."

(2.) IT will be useful before discussing the question to set out the relevant provisions of the new Act. Section 21 reads:

(3.) SECTION 42 relates to laying of rules etc., before the Legislature.