ORDER
1. This writ petition under Art. 226 of the Constitution of India arises out of proceedings for ascertainment of vacancy and allotment of the premises No.71/177 A Sutarkhana Kanpur Nagar under Ss. 12 and 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (In short the 'Act) and is directed against the order dated 9-10-1991 passed by Special Judge (E.C. Act) Addl. District Judge, Kanpur Nagar in Rent Revision No. 131 of 1985, Ram Prasad Singh v. District Magistrate, Kanpur Nagar and another setting aside the order dated 14-8-1985, whereby the V Addl. City Magistrate/Rent Control and Eviction Officer, Kanpur Nagar had held that the shop in dispute was not vacant inasmuch as Mohd. Idris alias Banne Mian had been in occupation thereof from before July 1976 and carrying on tea-stall/ Dhaba business therein.
2. The summed up facts necessary to highlight the controversy between the parties and to decide the questions raised at the bar, may he set out as they emerge from the record of the case.
3. Mst. Zohra Khatoon (at some places she is described as Zohra Begum) was admittedly the original tenant of the premises in question. She is said t6 have died in the year 1981. Mohd. Idris claims himself to be the son-in-law of Mst. Zohra Khatoon. It is said that Smt. Kastoori Begum, the wife of Mohd. Idris alias Banne Mian, is the daughter of Mst. Zohra Khatoon. It appears that one Abdul Rehman had applied for allotment whereupon the Rent Control Inspector submitted a report dated 19-4-1983 to the Rent Control and Eviction officer stating therein that Smt. Zohra Khatoon, the original tenant, had either died or gone away elsewhere; that Banne Mian alias Mohd. Idris was said to be in unauthorised occupation in the premises which was owned by Abhai Trust and managed through its Pujari Sri Susheel Chaturvedi; and further that Banne Mian alias Mohd. Idris could not show any rent receipt of the period prior to July 1976. The Rent Control Inspector as would transpire from the perusal of the record took down the statement of Mohd. Idris and submitted the same alongwith his report to the Rent Control and Eviction Officer. A copy of the statement is annexed as Annexure C.A.1 to the counter affidavit. On the basis of the aforesaid report, the Rent Control and Eviction Officer passed the following order on 20-4-1983.
"I have seen the report of R.C.I. First report findings are based on receipts produced by the occupant. All the receipts are of post July 76 period. On that basis he cannot be treated as regular tenant.
In subsequent report the position......
vacancy seems in the premises u/S. 12(1)(c). Let the vacancy be notified and put up for further necessary action on 5-5-83.
Sd/-S.S. Sengar 20-4-83.
R. C. & E.O."
4. It further transpires from the record that the Rent Control and Eviction Officer thereafter allotted the premises to Abdul Rehman on 15-5-1983. But when Abdul Rehman went to take possession of the premises he found that the petitioner Mohd. Idris alias Banne Mian was in its occupation and carrying on restaurant business therein since long. Accordingly, he moved an application-before the Rent Control and Eviction officer on 9-6-83 praying that the allotment order dated 15-5-83 made in his favour be cancelled. The petitioner also filed objection along with his affidavit before the Rent Control and Eviction Officer on 9th June 1983 challenging the factum of vacancy on the ground that his-mother-in-law Smt. Zohra Khatoon had died in 1981 leaving behind her daughter Smt. Kastoori Begum Who happens to be his wife; It was alleged in the objection that Smt. Kastoori Begum being daughter, inherited the tenancy u/ S. 3(a)(2) of the Act and that he was the tenant of the shop on monthly rent of Rs. 25/-,
5. The Rent Control and Eviction officer passed the following order on the application of Abdul Rehman:
"In view of the application filed by the allottee, allotment order dated 13-5-83 is cancelled. R.C.I. please enquire and report about the vacancy.
Sd/- Illegible".
9-6-83.
6. Thereafter the Rent Control Inspector is said to have submitted a fresh report dated 26-5-1984 stating therein that Mohd. Idris had been in occupation of the premises from the lifetime of Zohra Khatoon. The Rent Control and Eviction Officer on consideration of the report and other materials on record including water tax receipts pertaining to the years 1965, 1968, 1973 and 1974 and other documents filed by Mohd. Idris alias Banne Mian, held that Mohd. Idris alias Banne Mian had been in occupation of the premises in dispute from before July 1976 and that the premises in dispute was not liable to be declared vacant. It may be recalled that S. 14of the Act Was substituted by S.8 of U.P. Urban Building (Regulations of Letting Rent and Eviction) (Amendment) Act, 1976 with effect from Ist July 1976 and the section so substituted provides that notwithstanding anything contained in the Act or in other law for the time being in force, any licensee or tenant in occupation of a building with the consent of the landlord immediately before the commencement of the U.P. Urban Building (Regulations of Letting Rent and Eviction) (Amendment) Act 1976, not being a person against whom a suit or proceeding was pending before any court or authority on the date of such commencement, shall be deemed to be an authorised licensee or tenant of such building. The Rent Control and Eviction officer seems to have given benefit of the said provisions to Mohd. Idris by his order dated 18-4-1985. The question regarding devolution of tenancy upon Smt. Kastoori Begum was not gone into.
7. Ram Prasad Singh respondent preferred a revision against the aforesaid order which h.as been allowed by the Special Judge (E.C. Act)/Addl. District Judge Kanpur Nagar vide judgment and order dated 9-10-1991. Mohd. Idris alias Banne Mian has filed the instant petition challenging the aforesaid order.
8. The learned counsel for the petitioner urged before me that the order dated 14-8-1985 passed by the Rent Control and Eviction officer declaring that the premises in dispute was, in the circumstances of the case, not liable to be declared vacant, being an order u/S. 12 was not revisable u/S. 18 of the Act. The learned counsel for the respondent could not seriously dispute the contention of the petitioner's learned counsel that the order dated 14-8-85 was not revisable u/S. 18 but he urged that the order dated 14-8-85 is tantamount to a review of the earlier order dt. 5-5-83 for which the Rent Control and Eviction officer had no jurisdiction under the Act. His contention is that vacancy once declared by the Rent Control and Eviction officer vide order dated 5-5-83 (Annexure C. A.3) was not liable to be reopened and the Rent Control and Eviction Officer acted in excess of jurisdiction in reopening the issue about deemed vacancy.
9. Having given my anxious consideration to the submissions made at the bar, I am of the opinion that the contention of Sri K. M. Dayal, learned Senior Advocate appearing for the respondents, that the vacancy once declared by the Rent Control and Eviction officer is not liable to be reopened is too broad a proposition of law to be accepted. Sub-sees. (1) to (3-B) of S. 12 of the Act provide circumstances under which a landlord or tenant shall be deemed to have ceased to occupy the building or a part thereof and sub-sec. (4) provides that any building or a part which a landlord or tenant has ceased to occupy within the meaning of sub-sec. (1), (2), (3), (3-A), or (3-B), shall, for purposes of release and allotment under S. 16 of the Act, be deemed to be vacant. In fact the vacancy occurs automatically on the happening of any of the events mentioned in sub-sees. (1) to (3-B) of S. 12. It is not dependent upon any order of the Rent Control and Eviction Officer who is required only to ascertain, for the purpose of S. 16, as to whether any such event has happened. Rule 8 of the Rules made under the Act, provides procedure and manner for ascertainment of vacancy. Sub-rule (1) provides that the District Magistrate shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under S. 12 or to be otherwise vacant or likely to fall vacant, get the same inspected. According to sub-rule (2), conclusion of inspection report is to be pasted ; 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 expiration of 3 days from the date of such pasting and if in the meantime any objection is received, not before the disposal of such objection. Sub-rule (3) provides that any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce. It is thus evident from the rule that a separate formal order declaring vacancy is not required to be passed under S. 12 read with Rule 8 of the Rules. What is required is that the conclusion of the Inspection report shall be pasted on the notice Board of the office of the District Magistrate for the information of the general public. Mere pasting of conclusion of the report on the notice board is enough. It serves as notification of vacancy for purposes of S. 16 of the Act which provides for allotment and release of vacant building. The Rent Control and Eviction officer may also relying upon the inspection report, pass an order declaring vacancy for the purposes of proceeding u/S. 16. But such order, if passed without notice to the landlord and tenant would be nothing more than a mere notification of the conclusion of the Inspector's report as to vacancy with the command of the Rent Control and Eviction Officer super-added to it. It would be reviewable under the proviso to S. 16(1) and sub-rule (2) of Rule 8 of the Rules. The Expression 'an order of allotment may be passed not before disposal of such objection' occurring in the last part of sub-rule (2) is significant. The expression, in my opinion, empowers the Rent Control and Eviction Officer to review an ex parte order declaring vacancy under the 1st part of sub-Rule (2) of the Rules read with S. 12 of the Act merely on the basis of the report and without affording opportunity of hearing to the landlord and tenant, for otherwise the last part of sub-rule (2) and the proviso to S. 16(1) may be rendered illusory and redundant. It cannot be comprehended that objection against notification of a vacancy is received under the sub-rule only for purposes of being dismissed and if the objection against notification of vacancy is to be allowed on the facts of a given case, it would necessarily imply to be review of notification of vacancy made in the earlier part of the sub-rule. District Magistrate or for that purpose his delegate, the Rent Control and Eviction Officer, while disposing of the objection under Rule 8, has the power to review his earlier order, if any, declaring vacancy ex parte merely on the basis of the inspection report. The power of review of an ex parte order declaring vacancy is also implicit in the proviso to sub-sec. (1) of S. 16 of the Act, which reads as under:--
"Provided that in the case of a vacancy referred to in sub-section (4) of S. 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, for showing that the said section is not attracted to his case before making an order under clause (a)."
Clause (a) of S. 16(1) of the Act, provides that the District Magistrate may by order, require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building having no appurtenant land, to any person specified in the order to be called an allotment order. It cannot be gainsaid that the stage of allotment comes after notification vacancy under Rule 8 of the Rules read with S. 12 of the Act. The proviso therefore clearly comprehends that any such notification or order declaring vacancy on the basis of the Inspector's report can be reviewed by the District Magistrate on an objection of the landlord or the tenant as the case may be, in exercise of his powers under the proviso to sub-sec. (1) of S. 16 read with Rule 8 of the Rules as also under S. 16(5) of the Act. If the contention of Sri K.M. Dayal, learned Senior Advocate that an order declaring vacancy is in no circumstance liable to be reopened is accepted, then the proviso to sub-sec. (1) and sub-sec. (5) of S-16 would also become illusory and redundant. However, if the vacancy is declared while disposing of the objection filed either under sub-rule (2) of Rule 8 or under the proviso to S. 16(1) than in that event the order declaring vacancy would not be open to review except on the ground that it was obtained by fraud or misrepresentation of facts amounting to fraud on court, for any authority vested with administrative judicial or quasi-judicial powers has the implied power to review its order, if it is found that the order has been obtained by fraud or by misrepresentation of facts. The order dated 5-5-83 in the instant case was passed on the basis of the Inspector's report, and no notice was given either to the landlord or to the tenant. It was nothing but the conclusion of the inspection report with the command of the Rent Control and Eviction officer super-added to it. It did not preclude the Rent Control and Eviction officer to entertain objection any say that S. 12 of the Act was not attracted. Accordingly, the petitioner who claims himself to be the tenant, was entitled to file objection both under the proviso to Section 16(1) and the latter part of Rule 8(2) of the Rules in opposition to the application for allotment/release and the Rent Control and Eviction officer committed no error of jurisdiction in passing the order dated 14-8-1985.
10. Sri K. M. Dayal, learned Senior Advocate placed reliance upon the following observations made by Hon. A, Banerji, J. (as he then was) in C. L. Gopal v. Ashwani Kumar 1982 (2) ARC 131.
"(8) Review is a creature of statute. There could be no review of an order unless the statute specifically provides in the same. On examination of the provisions of the Act. I do not find any provision of review of an order under S. 14 of the Act. Specific provision of review is there in S. 16(5) and S. 24-C (8) of the Act but there is no general provision in the Act or the rules for review of any order passed by an authority under the Act. The provision of order 47 of the Code is, therefore, neither applicable nor attracted."
It is evident that the aforesaid decision is not applicable to the facts of the present case inasmuch as proviso to S. 16(1) of the Act and R. 12(4) read with Rule 8(2) of the Rules were not up for consideration before the learned Judge in the case of C. L. Gopal (supra). There in that case, the Court was concerned with the question whether an order passed under S. 14 of the Act in respect of regularisation of tenancy was reviewable or not. The court was not called upon to discuss the question whether an order declaring vacancy under S. 12 read with Rule 8 on the basis of inspector's report without notice to the tenant can be reviewed in proceedings for allotment or release of the building.
11. Sri K. M. Dayal, also placed reliance upon another decision of this Court in Mahendra Vikram Singh v. 4th Addl. District Judge Bareilly, 1984 (2) ARC 361 wherein it was held that in the absence of any statutory provisions a court or an authority exercising judicial or quasi judicial power cannot review its order except in those exceptional cases where the mistake is of court. The said authority does not at all help the learned counsel, for as observed hereinbefore, the Rent Control and Eviction Officer shall be deemed to have been vested with the power to review his order declaring vacancy, on the basis of Inspector's report, during the course of proceedings for release or allotment of the building, if the order declaring vacancy was not the one covered by the proviso to S. 16(1) or the latter part of sub-rule (2) and sub-rule (3) of rule 8 of the Rules. The learned counsel for the respondent then placed reliance upon a decision of Hon. B. N. Sapru, J. in Sri Krishna Bhagwan v. 4th Addl. District Judge, Bulandshahr. In the said case of Sri Krishna Bhagwan v, 4th Addl. District Judge, Bulandshahr, the Rent Control and Eviction Officer had declared the vacancy after hearing the concerned parties. The declaration of vacancy was not ex parte nor was it based solely on the Inspector's report. The tenant in that case had contested the proceedings for declaration of vacancy and the Rent Control and Eviction officer declared the vacancy under his order dated 20-10-1978 after giving hearing to the tenant, Dr. Chandrika Nidhi on whose application for recall of the order dated 20-10-1978 on the ground that it was erroneously made, the order was recalled by the successor Rent Control and Eviction Officer vide order dated 12-12-1979. The decision in the said case has no application to the facts of the present case inasmuch as in the facts of that case, the court was concerned with the scope of sub-section (5) of S. 16 whereas in the instant case, we are concerned with the proviso to S. 16(1) and the latter part of Rule 8(2) of the Rules. Reference to Rule 8 in the said decision, as would be evident from para 13 of the decision, was made in the contest of the argument that the rule had not been complied with before making of the order dated 20-10-1978 declaring the vacancy.
12. The observation in the said decision that the rule does not refer to the stage where the vacancy is to be declared appears to have been made under the implied assumption that there exists some provision either in the Act or in the Rules (other than S. 12 read with Rule 8), for declaration of vacancy. In fact the learned counsel could not invite my attention to any provision in the Act or the Rules under which the District Magistrate/Rent Control and Eviction officer may be required to make an express and separate order of declaration of vacancy for the purpose of S. 16 except the one contained in the proviso to S. 16(1) and Rule 8 of the Rules. At the risk of repetition. I may do serve that what is required under the law for the purpose of initiation of proceeding under S. 16 is only this that the conclusion of the Inspection report shall be pasted on the notice board of the office of the District Magistrate/Rent Control and Eviction Officer and if the District Magistrate/ Rent Control and Eviction Officer passes an ex parte order declaring vacancy on the basis of inspection report, it is nothing but an order amounting to notification of vacancy for information of the general public. The District Magistrate/Rent Control and Eviction Officer gets the power by virtue of last clause of sub-rule (2) of Rule 8 read with sub-rule (3) and the proviso to S. 16(1) which enjoin upon the Rent Control and Eviction officer a duty to decide the objection before making an order of allotment. Therefore, the power to review an earlier order notifying vacancy has to be read in the last clause of sub-rule (2) of Rule 8 and the proviso to S. 16(1) of the Act in the case of Sri Krishna Bhagwan (supra).
13. It may also observe that the order dated 8-5-83 lost its efficacy in view of the order dated 9-6-1986 which has been allowed by the parties to attain finality. It may be recalled that on the application moved by Abdul Rehman, the Rent Control and Eviction Officer passed an order on 9-6-1983 cancelling the allotment order dated 13-5-83 and requiring the Rent Control Inspector to 'enquire and report about vacancy." The order dated 9-6-83 thus reopened the issue of vacancy and since the said order has become final, it is now not open to the learned counsel for the respondent to advance his submissions on the basis of an earlier order dated dt; 8-5-83 of the Rent Control and Eviction Officer declaring vacancy. Once the question of vacancy stood reopened on the basis of the order dated 9-6-83, the petitioner was quite justified in filing objection before the Rent Control and Eviction Officer and the matter was well within his jurisdiction to hold, upon consideration of the facts and circumstances of the case, that there was no vacancy. The order dated 14-8-1985 cannot thus be assailed by the learned counsel for the respondent on the ground that it amounted to review of an order which as held above became non est in view of order dated 9-6-1983.
14. The learned counsel for the respondent also tried to assail the order dated 14-8-85 on the ground that the provisions of S. 14 of the Act were not attracted on the facts of the case and the petitioner was not entitled to get the benefit of the said section. He urged that the petitioner was not in occupation of the premises from before U.P. Act 28 of 1976, whereby S. 14 of the Act was substituted regularising occupation of the existing tenants or licensees. The learned counsel contended that occupation of the petitioner, if any, was not with the consent of the landlord. The consent, if any of the pujari of the Trust cannot be equated with the consent of the landlord for purposes of S. 14 of the Act. I do not consider it necessary to go into this submission of the learned counsel for the respondent. Suffice it to say that the authority of the Pujari is not being questioned by the landlord and in my opinion a prospective allottee cannot challenge the tenancy on the ground that there was no valid agency or authority in favour of the Pujari to give consent on behalf of landlord for the purposes of S. 14. Further, the order passed by revisional court is without jurisdiction inasmuch as the order dated 14-8-85 was not revisable under S. 18 of the Act as it was not an order either of allotment or of release which order alone is revisable under S. 18 of the Act. The contention of the learned counsel for the respondent that the order dated 14-8-85 was without jurisdiction on the ground that it amounted to a review of an earlier order declaring vacancy having not been accepted by me, the learned counsel for the respondent cannot be permitted to urge that S. 14 of the Act was not applicable for the reasons aforesaid besides the reason that the validity of the said order was not challenged by the respondent before appropriate forum.
15. The learned Addl. District Judge has placed reliance upon a decision in Smt. Ganga Devi v. 11th Addl. District Judge, Kanpur Nagar, 1988 (2) Alld, Rent Cases, 456 to hold that vacancy once declared, cannot be reopened again. But in the said case, the vacancy was declared after contest and a writ petition impugning the order was dismissed by the High Court. Thereafter, a fresh application was made by Smt. Ganga Devi for review of the earlier order. The review application was rejected. The High Court while dismissing the writ petition, held that the vacancy once declared cannot be reopened. The decision aforesaid is not applicable to the facts of the present case.
16. In view of the above discussion the argument of Sri K. M. Dayal that interference by this Court would result in perpetuity of an illegality committed by the Rent Control and Eviction Officer, does not survive. I may observe here that the petitioner had set up tenancy by succession u/S. 3(a) (2) in favour of his wife being the daughter of Mst. Zohra Khatoon and in himself by induction, with the consent of the landlord, after the death of Mst. Zohra Khatoon as would be evident from his objection (Annexure III) filed under Rule 8(2) of the Rules. But since the learned counsel for the respondent did not urge before me that the order dt. 14-8-85 was vitiated also on the ground that the Rent Control and Eviction Officer made out a new case of regularisation u/S. 14 of the Act in favour of the petitioner, I do not consider it necessary to go into this question. It was for the respondent to assail the order before appropriate forum. It is not a fit case in which invalidity of the order dt. 14-8-85 may be considered in favour of the respondent for the purpose of refusal to interfere with the patently illegal revisional order passed against the petitioner. The order dt. 14-8-85 has not resulted into any miscarriage or failure of justice rather it has done justice to a person who has been in bona fide occupation of the premises in dispute under the colour of a bona fide claim of tenancy right. As such interference by this Court under Art. 226 of the Const would not result in perpetuity of any injustice to any party. Rather the non-interference may do it.
17. In the result, the petition succeeds and is allowed. The impugned order dated 9-10-91 (Annexed to the petition) is quashed. No costs.
18. Petition allowed.