JUDGMENT R.H. Zaidi, J.
1. Present petition filed under Article 226 of the Constitution of india, arises out of proceedings under Section 16 (1) (b) of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972) for short 'the Act' and is directed against the order passed by District Judge dated 31.5.91. recalling the rent revision No. 1/91 from the Court of Iind Addl. District Judge and transferring the same to the Court of VIth Addl. District Judge, of which Mr. A. A. Khan was the presiding officer and the order dated 28.10.91 passed by VIth Addl, District Judge, allowing the revision under Section 18 of the Act. and setting aside the order passed by A.D.M. (E) Lucknow acting as Rent Control and Eviction Officer dated 30.12.1986, whereby release application of the petitioners were allowed and the order dated 2.1.1991, whereby review appications filed by respondent Nos. 3 to 6 were dismissed.
2. Relevant facts of the case, giving rise to the present petition, in brief, are that the building No. 7, Dalibagh. Lucknow, (for short 'the building in question') was in the tenancy of the Deputy Cane Commisssioner, Lucknow, who used to pay rent of the said building to Sri Mullack Raj, Sri Banarsi Das and Sri Dwarlka Das, (for short the 'Landlords.') It was on 7.11.84 that the Deputy Cane Commissioner, the tenant, gave an intimation to the landlords that he intended to vacate the building in question, copies of the said intimation notice were also endorsed to the District Magistrate, Lucknow. Senior Superintendent of Police. Lucknow and Addl. District Magistrate (Civil Supplies], Lucknow. respondent No. 2.
3. On the basis of the aforesaid intimation, notices were issued to the landlords, report of the Rent Control inspector was also called for by respondent No. 2. The Rent Control inspector after making local inspection, submitted his report on 12.11.1984 to the effect that the building in question was likely to fall vacant. It was also reported that a portion of first floor of the building was wrongfully occupied by Sri Sanjay Gandhi Awas Samill. Against the unauthorised occupant, an F.I.R. was also alleged to have been lodged by outgoing tenant.
4. After perusal of the report of Rent Control inspector and in view of the fact that nobody filed objection to it, respondent No. 2 vide his order dated 24.11.84 declared the building in question as vacant. Petitioners filed an application on 25.2.86 for release of the building in question in their favour under Section 16 (1) (b) of the Act, claiming themselves to be landlords of the building in question, on the basis of the registered sale deeds executed in their favour by the landlords and by one Smt. Ishwar Kaur. It was pleaded that the building was in dilapidated condition and same was required for demolition and reconstruction. On the release application filed by the petitioners, respondent No. 2 called for the report of the Rent Control inspector. The Rent Control inspector again made the inspection of the building and submitted his report on 3.10.86. Petitioners produced relevant evidence, documentary and oral, in support of their case. The respondenl No. 2 after perusal of the record and hearing the learned counsel for the petitioners, held that the building in question was in dilapidated condition, It needed demolition and that the need of the petitioners for demolition and reconstruction of the building in question was bona fide and genuine. After recording the said findings, respondent No. 2 released building in question in favour of petitioners by his order dated 3.12.1986. On an application filed before respondent No. 2 by the petitioners, proceedings for possession were initiated and Form 'C' was issued to Dr. J. D. Pandey. Sri Brijendra Pandey and Sri Nirendra Pandey. unauthorised occupants of the building, as they objected to and obstructed the petitioners in taking possession by them over the building in question, direction for the eviction of unauthorised occupants of a portion of the building, was also made. Even after service of Form 'C' upon unauthorised occupants, possession could not be delivered to the petitioners. On a report being submitted by the Rent Control inspector, respondent No. 2 issued Form 'D' as without use of police force delivery of possession over a portion of the building was not possible. Thereafter, three sets of review applications under Section 16 (5) of the Act were filed by respondent Nos. 3. 6 and 7, which were registered as case Nos. 202/87, 204/87 and 205/89. First application was filed by Sri Sanjay Gandhi Sahkari Awas Samiti through Sri J. D. Pandey and Sri Brijendra Pandey, claiming that they were owners of the building in question, and that possession over a portion of the building was delivered to them by Deputy Cane Commissioner, the outgoing tenant and that the said building was released in favour of the petitioners without giving them an opportunity of hearing, the second application was filed by Dr. Sawita Saxena, the respondent No. 6 claiming her possession over a portion of the building before the same was vacated by Deputy Cane Commissioner, and claimed herself to be the owner of the same, the third application was filed by Smt. Neeraj Pandey respondent No. 7 pleading that she was in lawful occupation of the building and was not liable to be ejected from the same in pursuance of the order of release. Aforesaid applications were ultimately registered as application Nos. 100/89, 101/89 and 102/87. Respondent Nos. 3 to 8 prayed that the release order dated 30.12.86 be reviewed and set aside.
5. All the three review appications were consolidated by respondent No. 2 notices on the said applications were issued to the petitioners. Petitioners on receipt of the notices filed their objections to the said applications contending that review applications filed by the aforesaid respondents were legally not maintainable, as the applicants were not the landlords or lawful occupants and had no right to file review applications and that said applications were, therefore, liable to be rejected.
6. Parties produced evidence, oral and documentary, in support of their cases. On behalf of applicants, application for issuance of the commission to make local inspection of the building in question was also filed. Respondent No. 2, on the said application directed for the inspection of the building in question by the Rent Control inspector ; but on objections filed by the petitioners against the said application, operation of the order passed by respondent No. 2 for inspection of the building by the Rent Control inspector was stayed. It was directed that application for inspection of the building shall be decided after hearing the parties as by that time, case was not re-opened and only in case the applicants-contesting respondent Nos. 3, 6 and 7 proved their cases.
7. After hearing the parties and perusing the record of the case, respondent No. 2 held that the rent of the building in question used to be paid by the Deputy Cane Commissioner, the tenant, to Sri Mullack Raj, Sri Banarsl Das and Sri Dwarika Das. the landlords, who were duly intimated and given notices before passing the order of release, that only the aforesaid three persons were the landlords of the building in question who have also filed their affidavits in support of the claim of the petitioners before the respondent No. 2. that the status of the contesting respondents was nothing but that of unauthorised occupants of a portion of building in question, as they have failed to substantiate their claim of ownership by filing the original sale deeds alleged to have been executed in their favour and to prove that they were lawful occupants of the said building. He has also noted that the civil suits filed by the parties were pending Suit No. 212 of 1983 was filed by respondent No. 3 for permanent prohibitory injunction. It was also noted that the application for grant of temporary injunction filed in suit No. 212 of 1983 was rejected by civil court. It was further held that contesting respondents had no right to file objections against the application of release, the objections could only be filed by the landlords Sri Mullack Raj, Sri Dwarika Prasad and Sri Banarsi Das and not by the contesting respondents. It was ultimately held that contesting respondents have utterly failed to prove that they were the landlords or co-landlords or lawful occupants of the building in question and that the application filed by them for review of the release order dated 30.12.86. was legally not maintainable. Having recorded the said findings, respondent No. 2 dismissed the three review applications by his judgments and order dated 2.1.1991. The application for inspection of the building was also dismissed as infructuous, as contested respondents failed to substantiate their cases for review of the release order.
8. Aggrieved by the judgment and order dated 2.1.91 respondent Nos. 3 to 7 filed only one revision under Section 13 of the Act, in the Court of District Judge, Lucknow. The said revision was ultimately transferred to the Court of respondent No. 1 by order dated 31.5.91 by District Judge, as the matter was alleged to have been already heard by Sri A. A. Khan Vlth Addl. District Judge, Lucknow, from the Court of IInd Addl. District Judge, Lucknow. The Vlth Addl. District Judge. Lucknow after hearing the parties held that review application could be filed, if the allotment or release order was obtained by fraud and as in the present case, notices were issued to Sri Mullack Raj, Sri Banarsi Das and Sri Dwarika Das, no notice was issued to the occupants, the release order was thus, ex parte and was obtained by concealment of facts. therefore, the review application was maintainable ; that the contesting respondents occupied a portion of the building after the sale deeds were executed in their favour, that the trial court wrongly gave much weight to the affidavits filed by Sri Dwarlka Das and others, that the trial court had no jurisdiction to decide the question of title, that the review application should have been decided on merits. It has also been held that notice on the application filed by the petitioners for the release of the building, should have been issued to the occupants also, which were not issued and the release order was passed, that both sides were asserting title to the building in question, therefore, no release order could be passed, that sale deeds executed in favour of the contesting respondents were earlier in time, therefore, they will prevail over the sale deed executed in favour of the petitioners, and that the application for issuance of commission to make local inspection should have been decided. Having recorded the said finding, the revision filed by the contesting respondent was allowed by the respondent No. 1 by his judgment and order dated 28.10.1991.
9. It may be noted that respondent No. 1 has not only set aside the order dated 2.1.91 passed by respondent No. 2 dismissing the review application, but also the order dated 3.12.1986. whereby building in question was released in favour of the petitioners without passing any further order either releasing the building in favour of the said respondents or directing the respondent No. 2 to proceed further. to consider the application for allotment and release of the building in question. It is also pertinent to note that respondent Nos. 3 to 8 or any one of them till date, did not file any application for release of the building in question, which was admittedly in occupation of Deputy Cane Commissioner, who has admittedly vacated the same.
10. As stated above the present petition was filed challenging the validity of the order passed by the respondent No. 1 dated 28.10.91 and the order dated 31.5.1991.
11. While entertaining the writ petition by order dated 30.11.1991 It was directed by this Court that the disputed accommodation will not be allotted to any person. Notices were directed to be issued to the respondents through Court. Petitioners were also permitted to effect personal service, outside the Court. Service of the notices effected upon the contesting respondents was ultimately held to be sufficient by order dated 18.11.1996 inspite of service, none appeared on behalf of the contesting respondent Nos. 3 to 8, nor any counter-affidavit has been filed on their behalf.
12. I have heard learned counsel for the petitioner and learned standing counsel.
13. Learned counsel for the petitioner vehemently urged that resondent No. 1 has exceeded his jurisdiction in allowing the revision. It was submitted that it was not shown by the contesting respondents nor the respondent No. 1 has recorded findings that respondent No. 2 has exercised jurisdiction not vested in him by law or that he has failed to exercise his Jurisdiction vested in him by law or that the respondent No. 2 has acted in exercise of Jurisdiction illegally or with material irregularity but illegally interfered with and set aside the order passed by respondent No. 2. It was also urged that the respondent No. 1 without reversing the finding recorded by the respondent No. 2 in the order rejecting the review applications, exceeded his Jurisdiction in reversing the order passed by the respondent No. 2. it was also submitted that the building in question was admittedly in occupation of Deputy Cane Commissioner. Lucknow before the same was declared vacant and released in favour of the petitioners. The contesting respondents never applied for release or allotment of the building in their favour nor it was ever released or allotted to them, their status was that of unauthorised occupants, the view taken to the contrary by the respondent No. 2 was manifestly erroneous and illegal. It was also submitted that the question of ownership and title was wholly Irrelevant for the purpose of present proceedings, the respondent No. 1 has acted illegally in dealing with and deciding the question of title. It was urged that even assuming without admitting that the contesting respondents were co-owners of the property in dispute, the remedy for them was by way of a suit for partition only and they had no right to file an application under Section 16 (5) of the Act. The application filed by them was legally not maintainable, and that the question of release was between the landlords and the District Magistrate, outsiders. prospective allottees or co-owners had no right to intervene in the said proceedings. It was also urged that validity of order declaring vacancy could not be challenged by the contesting respondents under Section 18 of the Act, the remedy if any was only by way of suit for partition or by way of petition under Article 226 of the Constitution of india. Respondents never challenged the validity of the said order before this Court, same has, thus, become final and in the eyes of law they ceased to occupy the building. On the said grounds, it was urged that the judgment and order dated 28.10.91 passed by respondent No. 1 was liable to be quashed.
14. The validity of the order of transfer dated 31.5.91 was challenged only formally, no arguments against the said order were made.
15. Learned standing counsel, on the other hand, stated that dispute was between the private parties and that he had no instruction to oppose the petition.
16. I have considered the submissions made by learned counsel for the petitioners and also gone through the record of the case carefully.
17. Admittedly Deputy Cane Commissioner was occupying the building in question as a tenant. He used to pay rent of the said building to the landlords namely Sri Mullack Raj, Sri Banarsi Das and Sri Dwarika Das. Deputy Cane Commissioner gave intimation of the vacancy and thereafter vacated the building in question and by order dated 14.11.84 the said building was declared vacant. Allotment and release applications were filed after declaration of the vacancy. Respondent No. 1, in accordance with law, proceeded to decide the release application filed by the petitioner first and ultimately allowed the same by his order dated 30.12.86. Thereafter, proceedings for delivery of possession were initiated in the said proceedings, contesting respondents resisted and obstructed the delivery of possession in favour of the petitioners and ultimately filed applications under sub-section (5) of Section 16 of the Act, which provides as under :
16. (5) (a) Where the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with clause (a) or clause (b), as the case may be. of sub-section (1), the District Magistrate may review the order :
Provided that no application under this clause shall be entertained later than seven days after the eviction of such person.
(b) Where the District Magistrate on review under this sub-section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant if already evicted, back into possession of the building, and may for that purpose use or cause to be used such force as may be necessary.
18. Under Section 16 (5) of the Act, it is evident that review application could be filed by the landlord or by any other person, who claimed to be a lawful occupant of the building or any part thereof comprised in the allotment or release order and review application could be allowed by the District Magistrate if ultimately he comes to the conclusion that order of allotment or release was not made in accordance with clause (a) or clause (b). as the case may be. of sub-section (1) of Section 16 of the Act. The contesting respondents claimed themselves to be the landlords. It was therefore, obligatory upon them to prove beyond doubt that they were the landlords of the building in question, which was released in favour of the petitioners and that the release order was not passed in accordance with law. Respondent No. 2 afforded full opportunity to the parties to produce evidence in support of their cases and after hearing the parties and perusing the evidence on the record, recorded clear and categorical findings to the effect that only three persons, namely. Sri Mullack Raj. Sri Banarsi Das and Dwarika Das were the landlords, as rent of the building used to be paid by the Deputy Cane Commissioner to the said persons and Deputy Cane Commissioner also intimated aforesaid three landlords that he was going to vacate the building in question. Respondent No. 2 has also rightly referred to definition of the landlord as given in clause 0J of Section 3 of the Act. which reads as under.
3. (i) "landlord", in.relation to a building, means a person to whom its rent is or if the building were let would be payable and includes, except in clause (g), the agent or attorney or such person :
19. Under the facts and circumstances of the present case, in my opinion, respondent No. 2 was right in holding that Sri Mullack Raj. Sri Banarsi Das and Dwarika Das only were the landlords of the building in question. Respondent No. 2 also found that status of contesting respondents was nothing but that of illegal occupants of a portion of the building. Application under subsection (5) of Seciton 16 could be filed only by landlords or lawful occupants. It was also noted that no release application till the matter was decided by respondent No. 2 was filed by the contesting respondents. Status of a person is a question of fact, thus the finding recorded by respondent No. 2 on the status of parties, were all findings of fact, which were based on appraisal of relevant evidence. oral and documentary, on the record. Respondent No. 1. therefore, had no jurisdiction to interfere with the said findings in exercise of his power under Section 18 of the Act.
20. Provisions of Section 18 of the Act are part materia with and analogoub to Section 115 of the C.P.C. Section 18 of the Act and Section 115 of the C.P.C. are quoted below :
18. Appeal against order of allotment or release.--(1) No appeal shall lie from any order under Section 16 or Section 19. whether made before or after the commencement of this section but any person aggrieved by a final order under any of the said sections, may within fifteen days from the date of such order, prefer a revision to the District Judge on any one or more of the following grounds namely
(a) that the District Magistrate has exercised a jurisdiction not vested in him by law ;
(b) that the District Magistrate has failed to exercise jurisdiction vested in him by law ;
(c) that the District Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity.
(2) The revising authority may confirm or rescind the final order made under sub-section (1) or may remand the case to the District Magistrate for rehearing and pending the revision, may stay the operation of such order on such terms. If any as it thinks fit.' Explanation--The power to rescind the final order under this sub-section shall not include the power to pass an allotment order or to direct the passing of an allotment order in favour of a person different from the allottee mentioned in the order under revision.
(3) Where an order under Section 16 or Section 19 is rescinded, the District Magistrate shall, on an application being made to him on that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose use or cause to be used such force as may be necessary.
Section 115 (C.P.C.) (only relevant quoted]
115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise jurisdiction so vested, or
(c) to have acted in the exercise of its Jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
21. Scope of Section 115 C.P.C. came to be considered before the Supreme Court in Sri M. L. Sethi v. R. P. KapoorAlR 1972 SC 2379. wherein it was ruled by the Apex Court, as under:
8.......The jurisdiction of the High Court under Section 115 of the C.P.C. is a limited one. As long ago as 1884. in Rajah Amir Hosson Khan v. Sheo Baksh Singh. (1884) 11 ind. App 237 IPC). the Privy Council made the following observations on Section 622 of the former Code of Civil Procedure, which was replaced by Section 115 of the Code of 1908.
"The question then is, did the Judges of the lower courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect Jurisdiction to decide the question which was before them, and they did decide it. Whether they decided rightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly, they did not exercise their Jurisdiction illegally or with material irregularity.' In Balakrlshna Udayar v. Vasudeva Aiyar. 44 ind. App 261 : AIR 1917 PC 71, the Board observed :
"It will be observed that the Section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of Jurisdiction is not involved."
In N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, (1949) 76 ind App 67 : AIR 1949 PC 156, the Judicial Committee said that Section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its Jurisdiction ; (b) that the case is one in which the Court ought to. exercise jurisdiction and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied on those three matters, It has no power to interfere because it differs from the conclusions of the subordinate court on question of fact or law.
9. This Court, in Mardndra Land and Building Corporation Ltd. v. Bhutnatfi Banerjee. AIR 1964 SC 1336 and Abbasbhai v. Gulamnabt, AIR 1964 SC 1341. has held that a distinction must be drawn between the errors committed by subordinate courts in deciding questions of law which have relation to, or are concerned with questions of jurisdiction of the said Court, and errors of law which have no such relation or connection. in Pandurang Dhondi v. Maruti Hart Jadha v. (1966) 1 SCR 102 : AIR 1966 SC 153. this Court said :
"The provisions of Section 115 of the Code have been examined by Judicial decisions on serveral occasions. While exercising its jurisdiction under Section 115. it is not competent to the High Court to correct errors of fact however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As clauses (a) (b) and (c) of Section 115 indicate, It is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court and so an erroneous decision on these pleas can be said to be concerned with questions of Jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of Jurisdictions of that Court, cannot be corrected by the High Court under Section 115."
22. While dealing with a case under Delhi Rent Control Act, similar view was taken in M. L. Sethi's case (supra) was taken by the Apex Court in Chaman Prakash v. 'ishwar Das, 1995 Supp. (4) SCC 445. This Court while dealing with the cases under the Act. followed the view taken by the Apex Court in the case noted above. Reference in this regard may be made to the decisions in Kumari Madhu Saxena v. 1st Addl. District Judge, Rampur and others, 1983 ARC 84. Chand Sharma v. Ilnd Addl. District Judge, Malhura and others 1979 ARC 176. Lallu Lal Gupta v. IXth Addl. District Judge. Allahabad and others. 1979 ARC 180. Nand Kishore v. Additional District Judge and others, 1979 ARC 497.
23. in view of the provisions of Section 18 and the decisions referred to above, learned counsel for the petitioners is right in his submission that respondent No. 1 exceeded his jurisdiction in interfering with the finding of fact recorded by respondent No. 2 and substituting his own findings in place of findings recorded by respondent No. 2, without holding that respondent No. 2 has exercised jurisdiction not vested in him by law or he has failed to exercise jurisdiction vested in him by law or has acted in exercise of his Jurisdiction Illegally or with material Irregularity. Respondent No. 1 was not heating appeal but revision under Section 18 of the Act. It was, therefore, not open to the said respondent to reappraise the evidence on the record, to set aside the findings recorded by the respondent No. 2 and to substitute his own findings in place thereof. The contesting respondents having failed to prove that they were landlords of the building in question, the applications for review of the release order filed by them were legally not maintainable. The observations made and the findings recorded to the contrary by respondent No. 1 are manifestly erroneous and Illegal.
24. Whole building in question was in the tenancy of the Deputy Cane Commissioner. There may be open land, lying in its compound but the same cannot be dealt with and treated separately inasmuch as. term 'building' has been defined in clause (1) of Section 3 as under :
"3. (I) 'building', means a residential or non-residential roofed structure and includes--
(i any land (including any garden), garages and outhouses appurtenant to such building :
(ii) any furniture supplied by the landlord for use in such building :
(iii) any fitting and fixtures affixed to such building for the more beneficial enjoyment thereof."
25. It is evident from the definition that land appurtenant to the building is also included in the definition of the building, therefore, even if a portion of open land was purchased by respondent No. 3. it had no right either to take possession over the said land, except in accordance with law. Admittedly, land alleged to have been purchased by respondent No. 3 was never surrendered by Deputy Cane Commissioner, nor the same was declared vacant, therefore, the status of respondent No, 3 and other respondents, who are transferees from respondent No. 3 and from others cannot be better than unauthorised occupants.
26. Admittedly, and according to the findings recorded by the authorities below, intimation of vacancy was given by the outgoing tenant. Deputy Cane Commissioner, to the landlords Sri Mullack Raj, Sri Banarsi Das and Sri Dwartka Das and also to District Magistrate. Notices on the intimation of vacancy given by Deputy Cane Commissioner, were issued by the respondent No. 2 to the landlords and after getting the building inspected, tt was declared as vacant vide order dated 14.11.84. The said order became final as validity ol said order was not challenged by anybody. The effect of the order was that respondent Nos. 3 to 8 who claimed their possession on a portior of the building ceased to occupy it. It was, therefore, not necessary to issut notices of the release application to them.
27. On the release application filed by the petitioners, notices wen issued to the necessary parties, t.e., to the landlords and the outgoing tenant. It was a case of actua vacancy, therefore, according to the provisions of Section 15 of the Act. read with Rule 9. on receipt of intimation of vacancy, vacancy could be entered in the relevant register and could be notified in accordance with law and it was not necessary to issue notice to the unauthorised occupants. The view taken to the. contrary by respondent No. 1. thus, is illegal and cannot be accepted. Sub-rule (3) of Rule 9 of the Rules provides as under :
"9. Notice of Vacancy (1). (2) ................................
(3) Immediately after the receipt of intimation of vacancy of any building in the office of the District Magistrate, the vacancy shall be entered in a register which shall be maintained in that behalf and be notified for the information of the general public by pasting a copy of the list of the vacant buildings on the notice board of that office, specifying therein the date on which the question of allotment will be considered. He shall also issue a notice to the landlord intimating him the date so fixed. On the date so fixed the District Magistrate shall consider the cases of all applicants registered in the register mentioned in Rule 10 and shall pass an order under Section 16 in accordance with Rules 10 and 11."
28. Reference in this regard may be made to the decision of Bhopol Singh v. A.D.J., 1983 (I) ARC 634. Geep industrial Syndicate v. R.C.E.O.. 1982 (1) ARC 585 and Geep industrial Syndicate v. Vinod Kumar, 1907 (1) ARC 396 and Raj Kumar v. VIIIh A.D.J.. 1997 (2) ARC 558. wherein it has been held that unlawful occupant is not entitled to any notice before declaration of vacancy, therefore, there was no occasion for giving any notice to the contesting respondent Nos. 3 to 8 either before building in question was declared vacant or before the same was released in favour of the petitioners. The revision filed by them was also legally not mintainable. and respondent No, 1 had no jurisdiction to go into the validity of order declaring vacancy dated 14.11.84 in the proceedings under Section 18 of the Act.
29. in view of the aforesaid facts, findings recorded by the revisional authority that release order was obtained by fraud, misrepresentation or concealment of facts also cannot be sustained.
30. Respondent No, 1 has commented upon respondent No. 2 that he wrongly dealt with the question of title of the parties over the building in question. It was held that in the proceedings under Section 16 of the Act, the District Magistrate had no jurisdiction to deal with the question of title, but he himself committed same error, which is apparent on the face of the record, in entering into the question of title of the parties over the building in question, permitting the contesting respondents to file additional evidence in the form of photostat copies of the alleged sale deeds, in perusing the same although execution of the said sale deeds was not proved in accordance with law and in holding that the contesting respondents were owners or co-owners of the building in question and further that both the parties were asserting title to the building in question, therefore, same could not be released in favour of the petitioners. He has also erred in law in holding that the sale deeds executed in favour of the contesting respondent No. 3 will prevail over the sale deeds executed in favour of the petitioners, without noticing the fact that none of the landlords executed any sale deed in favour of the said respondent No. 3. According to the findings recorded by the authorities below, suit for partition is pending disposal in the civil court. in case contesting respondents felt that they are entitled to any share in the building in question, their remedy was before the civil court and not in the proceedings under Section 16 ol the Act.
31. It is well settled in law that release of a building is a matter between the landlord and the Distric Magistrate, the prospective allottees, outsiders and the persons claiming through them have got no right to intervene in the said proceedings. A reference in this regard may be made to the following decision :
Talib Husaln and Others v. 1st Addl District Judge, 1986 (1) ARC 1 (FB) ; Vijai Kumar Sotikar v. incharge District Judge, 1995 (2) ARC I (SC) and Geep industrial Syndicate Ltd., v. Vinod Kumar Agrawal, 1997 (1) ARC 396.
32. Respondent No. 1 has thus acted illegally and in excess of his jurisdiction in setting aside the orders passed by respondent No. 2 whereby the building in question was released in favour of the petitioners and the application filed by the contesting respondents under Section 16 (5) of the Act was dismissed. The contesting respondents having utterly failed to prove their case, there was no occasion for issuing commission to inspect the building at their instance. Observations made and the findings recorded to the contrary by the respondent No. 1 are illegal and erroneous.
33. Before parting with the case, it may be observed that in case the application under Section 16 (5) of the Act is allowed either by the District Magistrate or revisional authority, it is obligatory upon them to pass consequential order, either permitting the landlords and lawful occupants, if they are in occupation to continue to occupy it. If already ejected put them back into possession or to direct proceedings for allotment or release to be conducted, in accordance with law. Respondent No. 1 failed to apply his mind to the provisions of Section 16 (5) of the Act and without passing any order in accordance with law. in effect permitted unauthorised occupants to continue in occupation of the building in question. although such occupation is totally prohibited by Sections 11 and 13 of the Act as also ruled by a Full Bench of this Court in Nootan Kumar v. IInd Additional District Judge, Banda and others, 1993 (2) ARC 204 (F.B.).
34. in view of the aforesaid discussions, writ petition deserves to be allowed.
35. According to the findings recorded by authorities below. Form 'D' was already issued when the review applications were filed and the interim order staying operation of release order was obtained from the respondent No. 2 by the contesting respondents, therefore, the proceedings for delivery of possession shall be reinitiated from the stage, they were stayed.
36. Writ petitioner succeeds and is allowed. Judgment and order passed by respondent No. 1 dated 28/10.1991 is, hereby, quashed. Orders passed by respondent No. 2 dated 2.1.19991 and 13.12.1986 are restored. The respondent No. 2 is directed to issue and execute From 'D' and get the possession of the building in question delivered to the petitioners, fn accordance with law.
No orders as to costs.