Rule 16 (2) 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.

M. P. SAXENA, J.:- 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:

"21. Proceedings for release of building under occupation of tenant - (1) The prescribed authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely-

(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the object of the trust;

(b) that the building is in dilapidated condition and is required for purposes of demolition and new construction:

Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds mentioned in clause (a) unless a period of three months has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years. Provided further that if any application under clause (a) is made in respect of any building in w