High Court of Judicature at Allahabad
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Sri Banshi Lal v. District Supply Officer/Delegated Authority/Rent Control - WRIT - A No. 45871 of 2006  RD-AH 14341 (24 August 2006)
Hon'ble Rakesh Tiwari, J
Heard counsel for the petitioner and Sri P.K. Jain, counsel for the respondents.
This writ petition arises out of proceedings for release/allotment of the accommodation, in dispute.
Counsel for the respondents urged that as no final order declaring the vacancy, allotment or release has been passed, the present writ petition is premature. In support of his contention, he placed reliance on paragraph 13 of the decision of Hon'ble the Apex Court in Achal Misra v. Rama Shankar Singh and others- 2005 (1) ARC-877, which is reproduced below :
"13. It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision making and in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy's case, which has disapproved the ratio of the decision in M/s. Trilok Singh and Co., cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy's case and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case in Smt. Kunj Lata v. Xth Addl. District Judge, Kanpur Nagar and others(supra) that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court, it would really be a case of election of remedies."
He submits that the petitioner cannot be evicted from the disputed accommodation unless and until the case is decided and final orders are passed.
In this view of the matter, formal interim order is not required to be passed as the petitioner cannot be evicted until final orders are passed.
In view of observations made in Achal Misra's case (supra), to me it appears that the petitioner can challenge the order declaring the vacancy along with the order of allotment/release passed by the Rent Control and Eviction Officer.
The writ petition is accordingly dismissed. However, as and when any allotment/release order is passed against the petitioner, it will be open to him to challenge the order declaring the vacancy in the accommodation, in dispute in appropriate proceeding. No order as to costs.
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