TaxTMI 
TaxTMI 
2005 (4) TMI 658
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....s (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called 'the Act'). The Inspector, an officer under the Act submitted a report on 11.09.1978 to the effect that the first floor of the building may be considered to be vacant under Section 12 of the Act, though a person claiming to be a caretaker was found therein. It is seen that the Inspector, while making the report, did not comply with the requirements of Rule 8(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter called 'the Rules'). On 15.9.1978, the Additional District Magistrate, the Authority under the Act, on the basis of the report issued a notice inviting objections for allotment of the first floor. On 09.10.1978, the father of Asha Tandon, the inheritor of the house, filed objections. He contended that no part of the building was vacant and the owner, Asha Tandon, was entitled to notice in terms of the Act and the Rules and no notice had been issued to her. On 23.10.1978, the Additional District Magistrate, declared vacancy not only in respect of the first floor but also in respect of the ground floor in terms of Section 12 of the Act. This o....
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.... were not entitled to have the benefit of a stay of eviction from the High Court. Meanwhile, on 04.05.1994, the Additional District Magistrate taking note of the fact that respondent No. 2, the Magistrate, to whom the allotment was made in his capacity as an official, was transferred to Deoria and had been staying in Deoria in a Government allotted quarters, cancelled the allotment of the first floor to him. Thus, though the vacancy of the first floor was declared no further step was taken regarding that floor. The appellant, therefore, approached the High Court seeking a clarification that the interim order would not stand in the way of considering the claim for release of the first floor by the appellant. By order dated 20.07.1995, the High Court clarified that its interim order dated 10.04.1979 would not stand in the way of considering the release of the first floor to the appellant. According to the appellant, in spite of this clarification, no steps were taken regarding the first floor allegedly because of the improper influence exercised by respondents. 3. Ultimately, the High Court allowed the Writ Petition and set aside the order of the Additional District Judge on the s....
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....lly removed his effects, or had allowed it to be occupied by a person who is not a member of his family, or in the case of a residential building, where the landlord and the members of his family have taken up residence elsewhere, the residence being not temporary, it was to be deemed under Section 12 of the Act, that a vacancy had arisen in respect of that building. Sub-Section (3-A) of Section 12, which has obvious application in the case of respondent No. 2 herein, provides that if the tenant of a residential building holding a transferable post under the Government has been transferred to some other city, then, such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation in the city to which he has been so transferred. Under Rule 8 of the Rules, for ascertaining the vacancy, the District Magistrate had to get the building inspected as far as possible in the presence of the landlord and the tenant or any other occupant and after eliciting from at least two respectable persons in the locality, information regarding the vacancy ....
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....ion filed by the tenants before the High Court in the present case. In Ganpat Roy' s case, the Bench disagreed with the position adopted in M/s Tirlok Singh and Co., that rights of the landlord or the tenant are not affected merely by the notification of a vacancy. Of course, by the time, Ganpat Roy' s case came to be decided, the Act had undergone an amendment and an appeal against the final order of allotment had been replaced by a revision under more restricted conditions. The Bench in Ganpat Roy' s case observed that the observations in M/s Tirlok Singh and Co. that it was unnecessary for the District Magistrate to hear the parties before notifying the vacancy did not appear to be correct. It also did not appear to be correct to hold that an order notifying the vacancy did no injury and caused no prejudice to the interests of any party because an order notifying the vacancy could be objected to and if any objections were filed, they would have to be decided after considering the evidence that the objector or any other person concerned might adduce. The further remedies provided to an aggrieved person after an allotment was made, also supported this position. The lea....
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....oticed that it could not be said that the question of vacancy if not challenged by a separate Writ Petition on its notification, could not be questioned in the revision filed under Section 18 of the Act. The question of vacancy pertained to a jurisdictional fact and can be challenged in the revision filed against the allotment order passed by the District Magistrate. In case it was found that there was no vacancy, the order of allotment had to be set aside. The Bench, therefore, felt that the decision in Ganpat Roy' s case holding that the validity of declaration of vacancy cannot be agitated in the revision under Section 18 of the Act challenging the allotment could not be accepted as correct. It was in that context that the case was referred to a larger Bench for decision, since the decision in Ganpat Roy' s case was rendered by three learned Judges of this Court. 11. On the scheme of the Act, it is clear that the preliminary step is to declare a vacancy. At this stage, an enquiry has to be made including an enquiry involving at least two respectable neighbours. It is thereafter that the vacancy has to be notified and objections invited. This is followed by either drop....
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....il Procedure, 1908 which precludes a challenge to an order of remand at a subsequent stage while filing an appeal against the decree passed subsequent to the order of remand. All these aspects came to be considered by this Court in Satyadhan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. [1960] 3 SCR 590 wherein, after referring to the decisions of the Privy Council, it was held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, can be challenged in an appeal from a final decree or order. It was further held that a special provision was made in Section 105(2) of the Code of Civil Procedure as regards orders of remand where the order of remand itself was made appealable. Since Section 105(2) did not apply to the Privy Council and can have no application to appeals to the Supreme Court, the Privy Council and the Supreme Court could examine even the correctness of an original order of remand while considering the correctness of the decree passed subsequent to the order of remand. The same principle was reiterated in Amar Chand Butail v. Union of India and Ors. AIR 1964 SC 1658 and in other sub....
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....nged the original order notifying the vacancies then and there. The decision of the High Court in the Writ Petition, therefore, requires to be set aside and the Writ Petition remanded to that Court for a fresh hearing and disposal in accordance with law, including the question whether the order notifying the vacancy was proper. It would also be necessary for the High Court to consider the effect of the cancellation of the order in favour of Respondent No. 2 considering the nature of the allotment made in his favour, even assuming that the High Court does not find any reason to interfere with the order notifying the vacancy or with the order making the allotment. The appeal is hence allowed. The judgment of the High Court in the Writ Petition filed by the allottees is set aside and the Writ Petition is remanded to the High Court for a fresh disposal in accordance with law and in the light of the observations contained in this judgment. The High Court, it is hoped, will expeditiously dispose of the Writ Petition afresh pursuant to this order of remand, in the circumstances of the case preferably within a period of six months of the receipt of a copy of this Judgment. I.A. NOS. 4 A....
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....an 25 years old. To allow the tenants to contest the case without payment of arrears and occupation charges falling due month by month would be travesty of justice. There are two proceedings pending between the parties: one is the present proceedings and the other is a suit for recovery of rent filed by the landlord against the tenants. 21. We direct as under:- (i) Within a period of two months from today respondent No. 1- Rama Shanker Singh, in occupation of the ground floor, shall tender an amount of Rs. 3,50,000/- through demand draft drawn on a scheduled bank in the name of the landlord and hand over the same to the counsel for the landlord. With effect from 1.5.2005, month by month, or on or before the 15th day of that month, Rama Shanker Singh-respondent No. 1 shall pay an amount of Rs. 1200/- per month plus the amount of water tax and drainage tax through bank draft drawn in the name of the landlord and tendered either to the landlord or to her counsel. (ii) Within a period of two months from today respondent No. 2- Raj Singh, in occupation of the first floor, shall tender an amount of Rs. 3,00,000/- by way of demand draft drawn on a schedule bank in the....