Sudhir Narain, J.:— The maintainability of this Special Appeal depends upon the answer to the question as to whether the Rent Contral and Eviction Officer acts as a Tribunal while he determines the question regarding vacancy of a building under the provisions of U.P Urban Buildings (Regulation of Leiting, Rent and Eviction) Act, 1972 (in short the ‘Act’). A special appeal is maintainable under Chapter VIII, Rule 5 of the Rules of the High Court. It bars special appeal against the order of a Tribunal Rule 5 is reproduced below:

“5. Special Appeal.—An appeal shall lie to the court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise or criminal jurisdiction) (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal Court or statutory arbitration made purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matter enumerated in the State List or the concurrent List in the seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act) of one Judge.)”

2. The brief facts and the circumstance under which this special appeal has been filed are that the appellant filed an application for allotment of the accommodation in dispute in his favour under Section 16 of the Act. The Rent Control and Eviction Officer called for a report from the Rent Control Inspector. The Rent Control Inspector submitted a report stating therein that the accommodation in question could not be treated as vacant as the appellant was himself occupying the said accommodation. He recommended that the parties may be summoned. One Kanhaiyalal Kesari also filed an application for allotment Subsequently, the appellant filed an application that he was in possession of the accommodation since the year 1968 and his possession may be regularised under Section 14 of the Act. The landlord filed an objection stating that the possession of the appellant was unauthorised and he was not in occupation with his consent and he is not entitled to any regularisation of his possession under Section 14 of the Act. The Rent Control and Eviction Order held that the possession of the appellant was unauthorised and declared the premises in question as vacant on 11-3-1987. After the passing of this order the landlord moved an application seeking release of the premises in dispute. The application of the landlord for release was allowed and the applications of the applicant and that of Kanhaiyalal for allotment were rejected. The appellant filed writ petition against the order of the Rent Control and Eviction Officer which was dismissed by the learned Judge of this Court by order dated October 28, 1992. This special appeal has been filed against the said order. The Rent Control Officer exercises the delegated power of the District Magistrate under the Act. There is no dispute that the Rent Control and Eviction Officer has power to release an accommodation in favour of the landlord under Section 16 of the Act or allot such accommodation to one of the applicants. This power can be exercised only where there is vacancy. The Rent Control and Eviction Officer has jurisdiction to pass an order only when there is vacancy of such building. The vacancy may be actual or it may be deemed vacancy as contemplated under Section 11 of the Act. It is a deeming provision. By fiction of law certain accommodation is treated as vacant. The relevant provision of Section 12 may be extracted as under:

“12. Deemed vacancy of building in certain cases (1) and landlord or tenant or a building shall be deemed to have ceased to occupy the building or a part thereof if—

(a) he has substantially removed his effects therefrom, or

(b) he has allowed it to be occupied by any person who is not a member of his family, or

(c) in the case of residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.

(2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.

(3) In the case of residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy.

3. Apart from it, a building may have been vacated by the tenant and he might not have intimated the vacancy to the landlord or to the Rent Control and Eviction Officer and might have given its possession to some other person. He might have sub-let without consent of the landlord and even in that situation it shall be treated as vacant under sub-section (2) of Section 25 of the Act. The Rent Control and Eviction Officer has to ascertain the fact of vacancy of the building in dispute Rule 8 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (in short the ‘Rules’) provides procedure for ascertainment of vacancy. Rule 1 may be reproduced as follows:—

“8. Ascertainment of vacancy (Sections 12, 16 and 34(8)(1) The District Magistrate, shall before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected.

(2) The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the mean time any objection is received, not before the disposal of such objection.

(3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce.”

4. The procedure for declaration of vacancy involves inspection of building, notice to the landlord, tenant and the occupier of the building, inviting objections from them hearing the affected parties, applicant and objector in the said proceedings and, after taking evidence, determination of vacancy and after such vacancy is declared, the same has to be published by posting the notice of vacancy on the Notice Board in the office of the Rant Control and Eviction Officer.

5. Rule 8 of the Rules has been held mandatory and failure to follow the procedure prescribed in it vitiates the entire proceedings of declaration of vacancy vide Yogendra Tiwari v. The District Judge, Gorakhpur;1 Smt. Kanti Gupta v. VIIIth, Additional District Judge, Meerut,2 Roman Catholic Diocese of Agra v. Rent Control and Eviction Officer, Agra.3

6. The Rent Control and Eviction Officer is entitled to receive evidence of the parties. Section 34 of the Act empowers the District Magistrate for the purpose of holding any enquiry or hearing, such powers which are vested in the Civil Court under the Cods of Civil Procedure when trying a suit in respect of summoning and enforcing the attendance of any person and examining him on oath, receive evidence on affidavits in respect of a building or its locality, or issuing commission for examination of witnesses or documents.

7. If there is no dispute as to the fact of vacancy, the District Magistrate can proceed either to release or allot the accommodation but if there is dispute as to the existence of vacancy, he has to ascertain the same. The dispute may be between the tenant and the landlord or occupant or a person claiming right of allotment that there is vacancy and in that case again the dispute may be between the tenant and such applicant. The tenant may claim that there is no vacancy either in fact or under the deeming provision.

8. In the light of these provisions the following position emerges:—

(1) There is a lis between the parties.

(2) The District Magistrate has to adjudicate the dispute judicially and has to determine it by a reasoned order.

(3) The order has to be passed after giving an opportunity of hearing to the parties concerned.

(4) The order must be based on evidence.

(5) The District Magistrate is empowered to adopt a procedure which is prescribed under Section 14 of the Act and in consonance with the principles of natural justice.

9. Learned counsel for the applicant contended that the power to allot or release a building under Section 16 of the Act was only an administrative or executive action of the District Magistrate. The procedure prescribed under the Act does not support this contention.

10. The word “Tribunal” has not been defined under this Act, but now it is settled principle of law that a tribunal is a body or an authority which is invested with the judicial power to adjudicate on questions of law or fact affecting the right of parties in a judicial manner.

11. In Hari Nagar Shyam Sunder Mills v. Shyam Sunder,4 the Supreme Court held that an order passed by the Central Government in appeal under Section 111(3) of the Companies Act, 1956 shall be treated as an order of a Tribunal. The reason for holding it is Tribunal is quoted below.

“Pleadings have to be filed, evidence in support of the case of each party has to be furnished and the disputes have to be decided according to law after considering the representations made by the parties. If it be granted that the Central Government exercises judicial power of the State to adjudicate upon rights of the parties in civil matters when there is a lie between the contesting parties, the conclusion is inevitable that it acts as a tribunal and not as an executive body.”

12. Learned counsel for the respondent relied upon the decision of the Supreme Court in Jaswant Sugar Mills v. Laxmi Chand . AIR 1963 SC 677.. The Supreme Court laid down the following criteria to make a decision as judicial.

“To make a decision or an act judicial, the following criteria must be satisfied;

(1) It is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of preexisting legal rules;

(2) it declares rights or imposes upon parties obligations affecting their civil rights; and

(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of law on the presentation of legal argument, and decision resulting in the disposal of the matter on findings based upon these questions of law and fact.”

13. On the facts of the case, it was held that the Conciliation Officer is not a Tribunal as he is not required to sit in public; no formed pleadings are contemplated to be tendered, he is not empowered to compel attendance of witnesses nor he is restricted in making an enquiry:

“He is not required to sit in public; no formal pleadings are contemplated to be tendered; he is not empowered to compel attendance of witnesses, nor he is restricted in making an enquiry, to evidence which the parties may bring before him. The Conciliation Officer is again not capable of delivering a determinative judgment or award affecting the rights and obligations of parties. He is not invested with powers similar to those of the Civil Court under the Code of Civil Procedure for enforcing attendance of any person and examining him on oath compelling production of documents, issuing commissions for the examination of witnesses and other matters.”

14. The declaration of vacancy by Rent Control and Eviction Officer contemplates pleadings and evidence and the Rent Control and Eviction Officer is invested with the power of a Civil Court in regulating the procedure for taking evidence etc. He is also to determine the dispute after taking into account the objections raised by the parties and has to pass a reasoned order.

15. In Bhai Lal v. Additional Deputy Commissioner,6 Hidyatullah, J. as he then was, held that the Rent Controller and the Deputy Commissioner acting under C.P, Berar Letting of Houses and Rent Control Order, 1949 exercises judicial functions as Rent Controller is a legal Tribunal and not merely an Executive Officer. The reasons for holding as Tribunal may be quoted below:

“The Controller hears parties, admits evidence, grants costs and generally exercises all the powers which Courts possess. His orders have legal effect and in deciding the cases before him, he not only ascertains questions of fact as well as questions of law. By this order he imposes labilities and affects the rights of others.”

16. This decision was quoted with approval by the Bombay High Court in Prabhakar Atma Ram v. Bharat.7 The Court held that the Rent Controller while deciding the question as to the existence of relationship of landlord and tenant between the parties before him acts as a Tribunal.

17. In Diwali Rai v. Jai Kumar Gopal Das Jain . A.I.R 1989 Bom. 393 the Court held that the Rent Control authorities act as Tribunal. The authorities under the Rent Control Act are quasi judicial authority adjudicating upon civil rights of parties. The declaration of vacancy requires adjudication of the rights of a tenant or a person occupying the accommodation and claiming himself as a tenant. In Ganpat Rai v. Additional District Magistrate . 1985 II ALR 423 SC. considering the scheme of the Act for declaration of vacancy the Court held that before declaration of vacancy an objector has a right to be heard. The relevant paragraph of the case is quoted below:

“It equally does not appear to be correct to hold that an order notifying the vacancy did no injury and caused no prejudice to the interest of any party because any 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 and that after an order of allotment or release was passed following upon the notification of vacancy, the aggrieved person could file a review application or an appeal under Section 18. In so holding the Court appears to have overlooked that the stage for objecting to a vacancy being notified was not after it was notified but, as provided by Rule 8 before it was notified and that under the said Rule 8 the notification of vacancy could only be after the objections were heard and disposed of. This Court itself pointed out in that case that the Act did not provide for a hearing at the stage when the District Magistrate passed an order of allotment of lease.”

18. The Rent Control and Eviction Officer has to determine the objections as provided under Rule 8(2) of the Rules. The provisions of determination costs duty upon the Rent Control and Eviction Officer to act judicially after considering the pleadings of the parties and after affording them opportunity to lead evidence and further to pass a reasoned order. From the scheme of the Act and the functions and duties cast upon the Rent Control and Eviction Officer leaves no doubt that he acts as a Tribunal. The order of the Rent Control and Eviction Officer shall be treated as an order of Tribunal.

19. The Special Appeal is not maintainable and, therefore, is dismissed. The parties shall bear their own costs.

20. Appeal dismissed.