GOPI MOHAN SAXENA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE petitioner has challenged the order of the Rent Control and Eviction Officer declaring the premises vacant under section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. THE petitioner's contention was that the accommodation which has been declared vacant was not a building contemplated by section 12 of the Act as that section dealt only with a residential building and not a building which was used both for residential and non-residential purposes. THE peti tioner's further contention was that the upper storey which has been declared vacant was in the occupation of the petitioner through the members of his family and was also necessary for the utilisation of the lower storey of the building which was being utilised for non-residential and commercial purposes. THE petitioner has contended that the order of the Rent Control and Eviction Officer has not decided the question raised by him about the building being a residential building and that the finding about the members of the peti tioner's family not residing in the accommodation in dispute is perverse. We do not deem it necessary to go into the merits of the controversy as at the present moment the petitioner cannot be deemed to have suffered by the impugned order any injury of a substantial nature as contemplated by Article 226 of the Constitution. In Triloki Singh v. District Magistrate (A.I.R. 1977 S.C. 1968), it was held that the order to the effect "Let the vacancy be notified" does not by itself and without more be treated as calculated to injure or affect the interest of the sitting tenant. If the release order is ultimately passed, that may give rise to the cause of action to the petitioner. THE petitioner will then be an 'aggrieved person' and also will be under threat of dispossession. That will be the stage when the petitioner will be deemed to have suffered substantial injury. That order is revisable by the District Judge under section 18 of the Act. All the points which the petitioner is raising through this petition above the validity of the order of the Rent, Control and Eviction Officer will be open to the petitioner to raise before the District Judge in revisional proceedings. THE petitioner cannot, therefore, be said even to be without any remedy against the impugned order. THE learned counsel contended that he may not be able to get the proper remedy by way of revision unless he is given the opportunity to contest the matter at the stage when the release application is considered on merits by the Rent Control and Eviction Officer. We see no bar in the petitioner getting an opportunity to contest the application for release before the Rent Control and Eviction Officer. Sub-rule (4) of rule 13 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, which pro vided that the question of release was a matter between the District Magistrate and the landlord and the outgoing tenant and the prospective allottee had no right to file any objection, has since been deleted and there is no bar now to the outgoing tenant having a right to object to the release of the accommoda tion in favour of the landlord. THE proviso to sub-section (1) of section 16 of the Act also gives a right to the tenant of showing cause against the release of the accommodation which runs as under: "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)." As the petitioner has not by the impugned order suffered any injury of the substantial character and he will be having remedy when the order of release is passed in favour of the landlord, no petition under Article 226 of the Constitution can be maintainable. THE petition is accordingly dismissed. Costs on parties.