K. M. Dayal, J. - (1.) THIS petition has been filed by one Rajjan Lal. He applied for allotment of the premises No. 15/221 Civil Lines, Kanpur. The allotment order was passed after due inspection of the aforesaid building. Subsequently the possession was also delivered in pursuance of the aforesaid order. Thereafter respondent no. 3 filed application purporting under section 16(5) of U. P. Act No. XIII of 1972. That application was moved on the ninth day after the possession was delivered to the petitioner. In that application it was contended that premises No. 15/221 was different premises whereas the applicant was evicted from premises No. 15/220. Notice was issued to the allottee and thereafter both the courts below have recorded a finding of fact that the allotment order was passed in respect of premises no. 15/221 whereas the respondent no. 3 was evicted from premises no. 15/220 for which there was no allotment order. They ordered the respondent no. 3 to be put back under possession as he was wrongly evicted under section 16 (4) of the aforesaid Act. The present petition has been filed by the allottee Rajjan Lal.
(2.) THE learned counsel for the petitioner argued that the court below has relied upon the receipt issued by Wajahat Hussain, Munim of landlord. THE petitioner had made an application for cross-examining the aforesaid Munim but the Prescribed Authority rejected that application. That order shows that several times summons were issued to Wajahat Hussain but he did not appear. After looking to the judgment of the revisional court (Annexure 18) and of Prescribed Authority (Annexure 16) it is clear that the version of Wajahat Hussain was not very material. THE question that was involved was whether the opposite party no. 3 was evicted under a valid allotment order issued under section 16 ? If he was not evicted otherwise than under a valid allotment order, the question of tenancy in favour of Gwal Das or the petitioner was not material. In the present case the finding of fact recorded by both the authorities is that Gwal Das was in occupation of premises No. 15/220 aforesaid as a tenant. His goods were found in the accommodation when possession of the same was delivered to the petitioner and that the petitioner was never allotted premises No. 15/220. Under the circumstances the evidence of Wajahat Hussain or any of the landlords was of no consequence. The last and important argument of the petitioner was that under section 16 (5) of Act No. XIII of 1972 the application for dispossession could not be moved after seven days. The learned counsel argued that in this case application was moved oh 9th day and, therefore, that application was not maintainable. I may point out that under sub-section (5) of section 16 an application is to be made by a person who has been evicted from a premises comprised in the allotment or release order. In the instant case the respondent no. 3 was evicted from an accommodation which was not comprised in the allotment or release order. His eviction was under a mistake that the premises was 15/221 and not 15/220. Under the circumstances the provisions of section 16 (5) of the Act were not attracted. The provisions of section 151 of the Civil Procedure Code have been made applicable to the proceedings under the Act by Rule 22 (f) framed under the Act. If a mistake was detected by any authority, it could certainly be rectified by the authorities concerned. In the instant case it is evident that there was a grevious mistake of fact, inasmuch as he was evicted without any order in respect of the same. It was, therefore, the duty of the authorities under sections 16 and 18 to put the person back in possession and undo the wrong which was committed by the office. The learned counsel for the respondent argued that section 5 of the Limitation Act was made applicable by Section 35 of the Act. As rectification and correction could be ordered under section 151 of the Civil Procedure Code, I need not go into that question. The learned counsel for the petitioner argued that section 5 of the Limitation Act would not apply.
(3.) THE learned counsel for the petitioner further relied upon certain documents which he has filed along with the rejoinder affidavit. From those documents it appears that the respondent no. 3 had given out that he had not been doing any business earlier. Those documents were not filed before the authorities concerned. However, even if those documents are accepted at its face, they only go to show that respondent no. 3 was not doing any business in the disputed accommodation. THEy do not prove that he could not be in occupation of the accommodation. THErefore these documents are not relevant for the present controversy. In the result, the present petition fails and is dismissed with costs. Petition dismissed.;