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Judgment
A.K. Yog, J.—List has been revised. No one appears on behalf of respondent No. 2. Learned counsel for the petitioner is present. Learned Standing Counsel is present on behalf of respondent No. 1.
The dispute relates to the premises known as ''Paramountcy'' (Nainital). The petitioner claims that it was being used as lodging house for which he had obtained licence under relevant Act. Copies of the licence have been filed as Annexure 1,2,3 and 4 to the writ petition. It appears that respondent No. 2 made some complaint and on that basis proceedings were initiated under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) (for short called the Act'').
An inspection, as required under Rule 8(A) of the Rules, framed under the Act, is said to have been made on the basis of which impugned order dated I9th January, 1982 (Annexure 9 to the writ petition) has been passed by the Delegated Authority, District Supply Officer, Nainital (Respondent No. 1).
Feeling aggrieved, present writ petition has been filed alleging that no inspection was done m accordance with the provisions of the Rules, framed under the Act, as far as no show cause notice or opportunity was given to the petitioner. A categorical averment has been made to this effect in Paragraph 21 of the writ petition but it has not been denied in Paragraph 22 of the counteraffidavit. Provisions contained in Rule 8 cast an obligation on the Rent Control and Eviction Officer to get inspection done after giving notice to the occupant of the accommodation in question. Rule 8 (2) quoted in Paragraph 20 of the Writ Petition, shows that Rent Inspector ought to have made inspection ''as far as possible'' in presence of landlord and tenant or any other occupant. There is no explanation as to what effort was made to serve arid as to why it was not possible to elucidate information from the occupant (petitioner). Phrase ''as far as possible has been explained and its meaning defined in 1997(3) SLJ 199 (SC),
Respondent No. 1 has passed impugned order on the basis that certain portion of the premises used as lodge was never occupied by the customers and farther placing reliance on the decision of Hon''ble Mr. A.N. Verma, J. in the case of Smt. Asha Devi v. Vllth Additional District Judge and others, reported in 1980 (UP) 2 RCC 118. In the said decision learned single Judge observed that the explanation provides that an occupant of a room in a hotel lodging used shall not be deemed to be a tenant but the premises in question is not included in Section 2 of the Act, which enumerates buildings to which the Act does not apply. Learned single Judge also observed that the petitioner in that case had failed to prove that premises in question was in fact lodging house. In the instant case, however, there is no finding that the premises is not a lodging house. There is no dispute on that score in our case.
The question, that arises in the instant case, is as to whether portion of a lodging house can be allotted merely on the ground that same has not been occupied by the customers for sometime. In case the portion of a lodging house, which is not occupied by customers for some time, gets exposed for allotment under the Act then it may lead to a situation in a given case when the entire ''lodging house'' will render itself liable for allotment. In my opinion, once a premises is being registered and licence under relevant Act has been issued such a building will remain a ''lodging house'', so long it is used and its paramount object is to give shelter and accommodation for travellers.
The view taken by the learned single Judge in the case of Smt. Asha Devi (supra) requires deeper reconsideration including whether in view of special provision of Sarai Act, recourse can be taken to U.P. Act No. XIII of 1972 in the case of a Lodging Hotel. However, in the instant case it is not necessary to refer the matter for consideration of a larger bench.
In view of the fact that provisions of Rule 8, framed under the Act, has not been complied with, impugned order dated 9th January, 1982 (Annexure 9 to the writ petition) cannot be sustained and it is hereby set aside.
An application has been filed along with an affidavit that the premises in question, by passage of time, became dilapidated. The owner of the premises applied for reconstruction of the same. After necessary permission having been obtained from the Competent Authority/Local Body, the entire premises has been reconstructed. As such the provisions of the said Act are not applicable to it. The question whether the building has been reconstructed and the provisions of the Act are applicable or not cannot be determined in the present petition and it is ignored. Petitioner may get this question of being new building adjudicated in future iii appropriate proceedings, if at all required. The application is hereby rejected. ;
The Writ Petition is allowed. No order as to costs,