JUDGMENT J. C. Gupta, J.
1. All these writ petitions arise out of the same proceedings and hence taken up together and since counter-affidavit and rejoinder-affidavit have been exchanged, they are disposed of finally by this common order.
2. In Writ Petition No. 17432 of 1997, a prayer has been made for quashing the order dated 5.1.1996 and 4.4.97 (Annexures-'8' and '10' respectively to the writ petition) passed by respondent No. 1.
3. Facts relevant may be stated in brief. The dispute relates to a shop. Respondent Nos. 2 and 3 of this writ petition, namely Jai Klshan and Arun Kumar (for convenience sake to be referred as J.A.) came into occupation of the disputed shop on 19.6.85 under a lease deed executed between them and the landlord, but admittedly without any allotment order in their favour by the District Magistrate. Since provisions of U. P. Act No. XITI of 1972 (briefly, the Act) were applicable, vacancy was declared by the Rent Control and Eviction Officer (R. C. & E. O.) by his order dated 11.10.91 treating J.A. to be in unauthorised occupation in contravention of the provisions of the Act. The order declaring vacancy became final and the same was never challenged by J.A., rather it is admitted to them in the connected writ petitions that a vacancy in law had actually occurred. J.A. applied for allotment of the shop in question whereas the landlord, father of the petitioner applied for the release of the same for the bona fide need of one of his sons, namely, Raj Kumar. By the order dated 16.4.92, the shop was allotted in favour of J.A. The landlord filed revision before the District Judge challenging the said order of allotment on the ground that there has been no consideration of his release application before making allotment order. The revision was allowed by the District Judge by his order dated 17.4.1995 and the order of allotment made in favour of J.A. was quashed and the case was remanded to the R. C. & E. O. for consideration of landlord's application for release. This order also became final as the same was never challenged by J.A. During the pendency of the proceedings before the R. C. & E. O. after remand, the landlord Jageshwar Dayal expired on 29.6.95. The application for substitution was then moved by the petitioners as legal heirs of the deceased landlord Including Raj Kumar for whose benefit the release was sought. The substitution application was allowed by the order dated 17.10.95 and the legal representatives were ordered to be brought on record. It appears that no formal amendment, however, could be carried out in the release application, accordingly the petitioner moved an application on 1.12.95 for permission to incorporate the said formal amendment in the release application. This application was allowed by the R, C. & E. O. on payment of Rs. 50 as costs by the order dated 1.12.95. It may be relevant to mention here that J.A. themselves in their application for allotment had also applied for substitution of the names of the petitioners as the legal representatives of the deceased landlord. The release application was ultimately allowed by the R C. & E. O. by his order dated 5.12,1995.
4. On 4.4.1996, J.A. filed a revision under Section 18 of the Act against the order dated 1.12.95 of the R. C. & E. O. whereby permission had been granted to the petitioners to carry out the formal amendment in their release application- The Incharge District Judge, while dismissing the revision summarily, still set aside the orders dated 17.10.1995 and 1.12.1995 by an ex parte order dated 5.1.1996 without affording any opportunity, of hearing to the petitioners. The petitioners moved an application for recalling the order dated 5.1.1996 but the same has also been rejected ,by the learned District Judge by the order dated 4.4.97 with the observation that as a matter of fact the revision was not rejected but was only disposed of. These two orders, namely, dated 5.1.1996 and 4.4.7 passed by the revlslonal court have been challenged in this writ petition.
5. J.A. also filed another revision against the final order of release dated 5.12.1995 and the same was dismissed by the District Judge by the order dated 24.1.1998. This order has been challenged in Writ Petition No. 4151 of 1998. Since no stay order was granted in the said writ petition, the R. C. & E, O. Initiated eviction proceedings and issued Form 'C' against J.A. on 23.3.98, Against this order, J.A. filed revision before the District Judge but the same was dismissed on 7.4.98. Against this order, Writ Petition No. 13531 of 1998 has been filed.
6. I have heard learned counsel for the parties at length.
7. First of all I take up the Writ Petition No. 17432 of 1997 whereby the order of the District Judge setting aside the order dated 17.10.1998 and 1.12.1995 passed by the R. C. & E. O. while dismissing/disposing of the revision has been challenged. At the outset, I may state that the learned District Judge has transgressed his powers in passing the order dated 5.1.1996 as revision Itself was not legally maintainable under Section 18 of the Act. Section 18 (1) of the Act reads as under :
"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."
8. A bare perusal of this provision would show that the revision is maintainable only against final orders passed under Section 16 or 19 of the Act and not against any other order which may be passed at any intermediate stage of the proceedings. Neither the order dated 17.1.95 whereby the substitution application was allowed could be termed as a final order made under Section 16 nor the order dated 1.12.1996 permitting the legal representatives to formally amend their names in the release application would fall within the category of final order made under Section 16 of the Act. It is well-settled that there is no inherent right of appeal or revision. The appeal and revision are creature of statute. Section 115, C.P.C. has not been made applicable to the Act either by Section 34 (1) or by means of Rule 22 nor the R. C. & E. O. Is a civil court subordinate to the Court of District Judge within the meaning of Section 115, C.P.C. It is obvious, thus, no revision was maintainable against the aforesaid orders and the learned District Judge committed a manifest error of law in entertaining the revision and consequently, setting aside the order dated 17.10.1995 and 1.12.1995.
9. Apart from the fact that the revision itself was not maintainable, even otherwise also the orders of the District Judge dated 5.1.1996 and 4.4.97 cannot be sustained for more than one reasons. Firstly, the said orders were quashed behind the back of the petitioner. Secondly, there was no error of Jurisdiction in the said orders. There was no dispute about the death of landlord Jageshwar Dayal and the parties were also not in dispute that the petitioners were the legal representatives of the deceased. J.A. themselves had substituted them in their application for allotment. Thirdly, in the matter of consideration of release application, J.A. had no locus standi to contest the satd application and fourthly, in the revision filed by the J.A. only the order dated 1.12.95 was challenged by which the R. C. & E. O. had simply allowed the petitioners to formally amend the release application by substituting their names in place of deceased landlord. Once a substitution application has been allowed, the formal amendment in the release application is only consequential and is a ministerial act and simply because the amendment was not formally made in the application, the rights of the parties cannot be allowed to be defeated. For all these reasons, the order dated 5.1.95 and 4.4.96 passed by respondent No. 1 cannot be sustained and are liable to be quashed.
10. Now coming to other writ petitions filed by J.A., I find no force in them. J.A. were inducted as tenant in the shop in question under the lease deed on 19.6.85, that is. after the commencement of the Act. Such a letting was prohibited under the provisions of the Act. In the Full Bench decision of this Court in the case of Nootan Kumar v. Additional District Judge, Banda. 1993 SC and FB RC 334, it has been held that an agreement of lease between landlord and tenant for letting an occupation of a building in contravention of the provisions of the Act is void. Section 11 of the Act imposes prohibition or restriction against letting out any accommodation without an allotment order. Section 13 of the Act provides and places restriction on occupation of the building without allotment order. A combined reading of Sections 11 and 13 of the Act imposes prohibition on letting without allotment. The conclusion is that neither the landlord can let out the premises without allotment order nor any one can occupy the same. In the case of Savendrapal Jaggi v. Additional District Magistrate. (Civil Supplies), Meerut and another. 1993 (1) ARC 489. It was held that the vacancy in such circumstances will come into existence by operation of law.
11. It is also well-settled law that an applicant for allotment does not possess an absolute right in himself and such a right arises only after rejection of landlord's application for release Ved Prakash v. VIIIth Additional District Judge, Ghaziabad and others. 1993 (I) ARC 442. The Apex Court in Swaroop Narain Srivastava v. IVth Additional District Judge and others, JT 1994 (5) SC 221, has observed that nowhere it is provided that an application for allotment of a vacant building should be considered in preference to the application made for release of the vacant building by the landlord. On the other hand. Rule 13 which provides the procedure for consideration of the application made for release of a vacant building by the landlord, by its sub-rule (4) requires that landlord's application for release under the Rules shall, as far as possible, be decided within one month from the date of its presentation and no allotment in respect of a building covered by an application in that Rule shall be made unless such application has been rejected. Therefore, the order of allotment made in favour of J.A. was Illegal and without Jurisdiction and was rightly quashed by the revislonal court in the revision filed by the landlord against the order of allotment. The R. C. & E. O. was directed to consider the landlord's application for release. The R. C. & E. O. considered the claim of the landlord and has released the shop in question in favour of the landlord for the benefit of Raj Kumar, one of the legal representatives of the deceased landlord. The status of the petitioners J.A. who had entered Into occupation of the shop in question in contravention of the provisions of the Act was that of unauthorised occupation. They also applied for allotment. In these circumstances, they had no right to contest the claim of the landlord for the release of the shop in question. In the Full Bench decision of Talib Hasan and another v. 1st Additional District Judge, Nainital and others, 1986 (1) ARC 1. It has been held that the prospective allottee has got no right to be heard in the proceedings for release under Section 16 (1) (b) of the Act. In such matters, he has no right either to file objection or to adduce evidence in support thereof. The matter of release is between the District Magistrate and the landlord. In the cases of Jitendra Nath Garg v. R. C. & E. O., Kanpur and others. 1992 (2) ARC 148 and Brij Bhushan Lal Srivastava v. IIIrd Additional District Judge, Varanasi and others, 1995 (1) ARC 158, the view taken was that prospective allottee has no locus standi to file revision against an order of release. Learned counsel for the petitioners J.A. argued before me that the position of the petitioner is, however, different as at one stage an order of allotment had been made in their favour. Firstly, I may state that the said order of allotment was made in contravention of the mandatory provisions of the Act and was a non-est order. The J,A. continued to be in unauthorised occupation. In a recent decision in the case of Narayani Devi v. Mahendra Kumar Tripathi and others. 1998 (1) ARC 153, it has been held by the Supreme Court that the final order of release made after declaration of vacancy is not open to revision at the instance of the sitting tenant who has been held to be in unauthorised occupation. In this view of the matter, this Court is of the view that the petitioners J.A. had no right in them to contest the claim of the landlord for the release of the shop in question nor revision at their instance was legally maintainable before the District Judge and has rightly been dismissed. The other Writ Petition No. 13531/98 is also to be dismissed as once the shop in question has been released in favour of the landlord by a valid order, that order has to be enforced after eviction of the petitioners J.A. from the shop in question. Therefore, both these Writ Petition Nos. 4151 and 13531 of 1998 are liable to be dismissed.
12. For the reasons stated above, Writ Petition No. 17432 of 1997 is allowed and connected Writ Petition Nos. 4151 and 13531 of 1998 are dismissed. The petitioners of the writ petitions which have been dismissed are allowed time upto 15th August, 1998 to vacate the disputed shop subject to their filing an undertaking in writing on affidavit within a period of three weeks from today before the R. C. & E. O. that they shall hand over vacant possession of the disputed shop to the landlords on or before 15th August, 1998 and shall not induct any third person therein and will clear off the entire arrears of rent Upto date within the aforesaid period of three weeks. In case the said underaking is not filed or the other condition of paying or depositing rent is not compiled with, this order extending the period for delivery of possession shall stand automatically cancelled. In case the undertaking is filed and honoured, dispossession of the said petitioners from the shop in question shall remain stayed till 15th August, 1998 falling which the landlords shall be at liberty to get the order of eviction enforced forthwith.
A copy of the order may be issued to the parties' counsel on payment of usual charges within a week.