G.P. Mathur, J. - (1.) THIS writ petition is being disposed of finally at the admission stage as the parties have exchanged affidavits. The dispute is about shop No. 32/142 Maniram Ki Bagiya, Kanpur, of which Mandir Lakshmi Narain Trust is the landlord. The shop was let out to Onkar Nath Agrawal (husband of petitioner No. 1 and father of petitioner Nos. 2 to 6) who was carrying on business therein under the name any style of "Shobha Vastra Bhandar". A partnership deed was executed between Onkar Nath Agrawal and Radhey Shyam Gupta, respondent No. 2 on 9 -7 -1973 where by it was agreed to start partnership business of hosiery and readymade garments under the name and style of "M/s. Purshottamdas Pawan Kumar" in the said shop. Onkar Nath Agrawal died on 8 -3 -1985. Raj Kumar Gupta, respondent No. 3 who is the son of Radhey Shyam Gupta respondent No. 2 moved an allotment application for allotting the shop in dispute to him presumably on the ground that as Onkar Nath Agrawal had admitted Radhey Shyam Gupta, who was not a member of his family, as a partner, he shall be deemed to have ceased to occupy the building in view of Section 12(2) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act), It appears that the things moved at a fast speed and the Rent Control Inspector submitted a report and thereafter vacancy was declared on 6 -4 -1985. The shop was then allotted to Raj Kumar Gupta on 8 -5 -1985 and he took possession of the same on 17 -5 -1985. The petitioners moved an application under Section 16(5) of the Act before the Rent Control and Eviction Officer for review of the allotment order. This application was contested by Raj Kumar Gupta alone. The Rent Control and Eviction Officer by order, dated 2 -4 -1986 reviewed and set aside the order, dated 6 -4 -1985 by which vacancy was declared and the order, dated 8 -5 -1985 by which the shop was allotted in favour of Raj Kumar Gupta. This order was challenged by Raj Kumar Gupta by filing Rent Revision No. 38 of 1986 before the District Judge, Kanpur, Nagar but the revision was dismissed by order, dated 28 -8 -1986. Raj Kumar also approached this Court by filing writ petition but the same was dismissed summarily on 4 -9 -1986. After the dismissal of the revision the petitioners moved an application before the Rent Control and Eviction Officer on 1 -9 -1986 for restoration of possession of the shop to them on which an order was passed for issuing Form C on 4 -9 -1986. Subsequently the petitioners moved another application on 12 -9 -1986 under Section 18(3) of the Act praying that Form D be issued for restoration of possession of shop to them. Petitioners filed another application on 27 -9 -1986, making the same prayer. Subsequent thereto Radhey Shyam Gupta, respondent No. 2 also moved an application on 30 -9 -1986 under Section 18(3) of the Act praying that he may be put in actual physical possession of the shop as the allotment order passed in favour of Raj Kumar on 8 -5 -1985 had been set aside. Raj Kumar respondent No. 3 also filed a counter -affidavit on 3 -12 -1986 stating that Radhey Shyam Agrawal being a partner of the firm was also a tenant of the premises and as the petitioner had not impleaded him as a party in the application moved by them for restoration of possession the application was liable to be rejected and further the provisions of Section 18(3) of the Act were not applicable and as such the question of delivering possession to the petitioners did not arise. After hearing the parties the Rent Control and Eviction Officer passed an order on 6 -2 -1986 directing that the possession of the shop be restored to the heirs of late Onkar Nath Agrawal and Radhey Shyam Gupta respondent No. 2. The petitioners have filed the present writ petition for quashing of that part of the order by which possession has been directed to be restored to Radhey Shyam Gupta as well.
(2.) SHRI R.K. learned Counsel for the petitioners has submitted that after the allotment order passed in favour of Raj Kumar had been set aside the petitioners alone were entitled to the possession of the shop. Shri K.M. Dayal, learned Senior Advocate appearing for respondent No. 2 has on the other hand contended that after the allotment order was set aside the Rent Control and Eviction Officer has rightly placed the parties back in the position which they had occupied prior to passing of the allotment order, and therefore, the impugned order which has directed that the heirs of Onkar Nath as well as Radhey Shyam shall be put jointly in possession is perfectly correct. It appears from the record that the petitioners moved application on 12 -9 -1986 under Section 18(3) of the Act for restoration of possession to them and in the impugned order as well the Rem Control and Eviction Officer has mentioned that the order for restoration of possession is being passed under Section 18(3) of the Act. However, in my opinion Section 18(3) had no application to the facts of the present case. Sub -section (1) of Section 18 provides that any person aggrieved by a final order made under Section 16 or 19 may prefer a revision to the District Judge on any or more of the grounds enumerated in the section. Sub -section (2) of Section 18 provides that the revising authority may confirm or rescind the final order or may remand the case to the District Magistrate for rehearing. Sub -section (3) of Section 18 provides that when an order under Section 16 or 19 is rescinded the District Magistrate shall, on application being made to him in 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, obviously subsection (3) of Section 18 will apply when a final order made under Section 16 has been rescinded by the District Judge in a revision preferred before him. Admittedly in the present case no revision had been filed by the petitioners before the District Judge nor the District Judge has rescinded any order of allotment. It is not in dispute that a review application had been filed by the petitioners under clause (5)(a) of Section16of the Act which was allowed by the Rent Control and Eviction Officer on 2 -4 -1986 and the allotment order made in favour of Raj Kumar on 8 -5 -1985 was set aside. In such a situation it is clause (b) of sub -section (5) of Section 16 of the Act which gives power to the District Magistrate to put the applicant back in possession of the building. It is, therefore, obvious that when the petitioner moved in application before the Rent Control and Eviction officer for restoration of possession to them they invoked the jurisdiction of the authority under clause (b) of sub -section (5) of Section 16 and not under Section 18(3) of the Act. The language used by the legislature in Section 16(5)(b) is different from the language used in Section 18(3) of the Act. While clause (b) provides that where the District Magistrate on review sets aside the order of allotment he shall put the applicant back into possession of the building. Sub -section (3) of Section 18 provides that where an order under Section 16 is rescinded the District Magistrate shall place the parties back in the position which they would have occupied but for such order. The word 'applicant' in clause (b) of sub -section (5) of Section 16 obviously refers to the person who has filed the review application under clause (a) of sub -section (5) of Section 16 of the Act. In the present case the review application had been filed by the petitioners alone and not by Radhey Shyam, respondent No. 2. In fact Radhey Shyam was not even party to the review application. Therefore, the Rent Control and Eviction Officer could put only the petitioners back into possession of the shop in dispute and that part of the order which directs Radhey Shyam also to be put in possession of the shop along with the petitioners is clearly illegal and cannot be sustained in law. It is true that the application moved by the petitioners for being put back in possession of the shop was described as one under sub -section (3) of Section 18 of the Act and the Rent Control and Eviction Officer has also mentioned in the impugned order that he was exercising power under the aforesaid section, but his order in so for as it directs the petitioners to be put back in possession is within his jurisdiction and can be sustained under clause (b) of sub -section (5) of Section 16 of the Act. The order directing restoration of possession to the petitioners cannot be held to be illegal merely because a wrong section has been mentioned in the application moved by the petitioners or in the order passed by the Rent Control and Eviction Officer. In Vice -chancellor, Jammu University v. D.K. Rampal, : AIR 1977 SC 1146 it was held as follows: - - Where an authority makes an order which is otherwise within the competence it cannot fail merely because it purports to be made under a wrong provision of law if it can be shown to be within its powers under any other provision, a wrong label cannot vitiate an order which is otherwise within the power of the authority to make. Similar view has been taken in Hukum Chand Mills v. State of M.P. : AIR 1964 SC 1329 and P. Balakotaiah v. Union of India : AIR 1958 SC 232. Therefore, the impugned order, dated 2 -4 -1986 can be sustained only is so for as it directs restoration of possession to Radhey Shyam, respondent No. 2, cannot be sustained and must be quashed.
(3.) SHRI K.M. Dayal has submitted that after the constitution of the firm on 9 -7 -1973 the firm became the tenant which in effect means that all the partners of the firm became tenants of the shop held in Pooran Chand v. Rent Control and Eviction Officer, 1959 ALJ 343 and Sangam Lal Gupta v. 1st A.D.J., 1984 (2) ARC 558 With the enforcement of U.P. Act 28 of 1976 on 5 -7 -1976 the possession of all the partners of the firm became regularised and they all became tenants of the shop and, therefore, both Onkar Nath Agarwal and Radhey Syam Gupta shall be deemed to be the tenants of the shop in dispute. It is thus submitted that not only the heirs of Onkar Nath Agarwal but Radhey shyam Gupta, respondent No. 2 as well, is entitled to the possession of the shop. In may opinion the submission made by the learned Counsel is wholly untenable in law for three reasons. Firstly, as shown above sub -section (3) of Section 18 of the Act is not at all applicable to the facts of the case. Secondly, a deemed vacancy had occurred on 9 -7 -1973 on account of the fact that the original tenant Onkar Nath Agarwal had taken a partner, namely, Radhey Shyam Gupta, and had constituted a firm. This disqualification attached to the original tenant Onkar Nath Agrawal on account of his unilateral act of taking a partner. There is no material on record to show that the landlord accepted either the firm or both the partners as tenant of the shop. The record shows that the landlord continued to issue the rent receipts in the name of "Shobha Vastra Bhandar". Along with the rejoinder -affidavit a rent receipt, dated 3 -1 -1984 for the period 1 -11 -1983 to 31 -12 -1983 has been filed and in this receipt the name of the tenant has been mentioned as "Shobha Vastra Bhandar". Thus it is clear that the landlord never recognised or admitted Radhey Shyam either as a co -tenant or a joint tenant. The possession of Radhey Shyam over the shop in dispute was, therefor, not with the consent of the landlord. The effect of Section 14 of the Act, therefore, is that the disqualification attached to the original tenant Onkar Nath Agrawal stood removed and his tenancy stood regularised on 5 -7 -1976 and he alone became the tenant of the shop. It may be noticed at this stage that in Rent Revision No. 38 of 1986, Raj Kumar Gupta v. Smt. Meera Agrawal and others, decided by the 9th ADJ on 28 -8 -1986 a finding has been recorded that rent receipts were always issued in the name of ''Shobha Vastra Bhandar" and his tenancy became regularised under Section 14 of the Act. In the writ petition filed by Raj Kumar Gupta in this Court, challenging the aforesaid order, it was observed that the occupation of Onkar Nath Agrawal became regularised under Section 14. Therefore, it is clear that Radhey Shyam never acquired status of a tenant of the premises and the question of restoration of possession to him does not arise. The third reason for rejecting the submission of the learned Counsel is that the proceedings under sub -section (3) of Section 18 of the Act are in the nature of restitution proceedings and not for determining the status of a person as to whether he is a tenant or not. The question whether a person has become an authorised tenant by virtue of Section 14 of the Act is wholly beyond the purview of the jurisdiction conferred upon the District Magistrate by the aforesaid provision and he cannot embark upon such inquiry when an application is moved before him for restoration of possession after a final order under Section 16 or 19 of the Act has been rescinded in a revision by the District Judge. It has been held in Abdul Gafoor v. R.C. and E.O., 1984 (1) ARC 327 that the District Magistrate while exercising power under Section 18(3) is like executing Court and cannot go behind the order nor can entertain evidence and decide question of possession which is beyond the pale of power conferred by this sub -section.;