G.P.Mathur - (1.) THE writ petition is being disposed "of finally at the admission stage in accordance with Chapter 22 Rule 2 of the Rules of the Court as the parties have exchanged affidavits. THE petitioner has sought quashing of the order dated 27-5-1989 passed by IVth Additional District Judge, Saharanpur in Rent Control revision no. 46 of 1983.
(2.) THE dispute relates to shop No 651 Subzi Mandi, of which panchayati Dhara Phira Hediyan, Jwalapur is the owner and landlord. One Rampal Singh moved an application on 3-8-1981 for allotments of the shop on the ground that the same was in the tenancy of Pyare Lal Sharma, but he had illegally sublet the same to Krishna Lal Khurana (respondent no. 2) and as such, the shop was legally vacant. THE Rent Control Inspector submitted his report after inspecting the shop. THE Rent Control and Eviction Officer passed an order dated 5-7-1982 declaring vacancy and invited applications for allotment on 16-7-1982. THE landlord moved an application for release which was rejected by the order dated 17-12-1982. Since this order was not challenged by the landlord, the same became final. It appears that as many as 13 persons applied for allotment of the shop in their favour and the Rent Control and Eviction Officer passed an order dated 10-6-1983 allotting the shop in favour of the petitioner Sushil Kumar Gupta. THE allotment order was challenged by three persons namely Krishna Lal Khurana respondent no 2, Pyare Lal Sharma and Ram Gopal Sharma by filing three separate revisions. THE revision filed by Krisban Lal Khurana has been allowed by the impugned order and it has been held that the shop is not vacant and respondent no. 2 was the tenant of the shop by virtue of section 14 of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). Sushil Kumar Gupta in whose favour the allotment order had been passed by the Rent Control and Eviction Officer has filed the present writ petition. The first contention of Shri Vinod Swarup learned counsel for the petitioner is that respondent no. 2 had filed revision against the order dated 10-6-1983 passed by R. C. and E.O. by which shop had been allotted in favour of the petitioner and in this revision, it was not open to the Addl. District Judge to go into the correctness or validity of the order dated 5-7-1982 declaring vacancy. The impugned order shows that the learned District Judge has, after appraisal of evidence, held that Kishan Lal Khurana respondent no. 2 was in possession of the accommodation as a sub-tenant but with the consent of the landlord and as such, he was entitled to the benefit of section 14 of the Act. After arriving on this finding, learned Addl. District Judge held that the order of R.C. and E.O. dated 5-7-82 declaring vacancy, was, therefore, illegal. After the allotment order had been passed on 10-6-1983 in favour of petitioner, respondent no. 2 filed a revision against the said order under section 18 of the Act. In the memorandum of revision, copy of which has been filed as Annexure 11 to the writ petition, it is described as a revision under section 18 against the order dated 10-6-83 of R.C. and E. O. The Scheme of the Act does not contemplate a revision against an order declaring vacancy, section 18 provides that any person aggrieved by the final order passed under section 16 or 19 may prefer a revision to the District Judge on any one or more of the grounds enumerated in the section. Therefore, it is clear that no revision lies against the order declaring vacancy. In Ganpat Roy v. Addl. District Magistrate, AIR 1985 SC 1635, it was held as follows in para 12 of the reports "Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous of res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under section 18 is against an order of allotment or release and not against a notification of vacancy and a issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision." The above observation of Honourable Supreme Court shows that the correctness of the order declaring vacancy cannot be examined in the revision filed against the order of allotment even at the instance of a tenant whose objections to notification of deemed vacancy have been rejected and subsequently vacancy has been declared- In Hair Prasad Verma v. Illrd A.D. J., 1984 (1) ARC 65, it has been held by Honourable R. M. Sahai, J. that no revision lies against the order declaring vacancy. Similar view was taken by Honourable S. D. Agarwala, J. in Amar Nath Thakur v. Vinod Kumar Sharma, 1988 (2) ARC 57. The question as to whether the correctness of the order declaring vacancy can be exaimined in a revision filed against the final order of allotment was recently considered by Honourable S. G. Veema, J. in Raghunath Prasad v. Smt Krishna Dixit, 1991 ALJ 91, and it was held that it is not open to the learned District Judge to go into the correctness or otherwise of the order declaring vacancy in a revision filed under section 18 of the Act against an order of allotment. In this view of the matter, learned District Judge has erred in examining the validity of the order declaring vacancy and in holding that the order passed by the R. C. and E O on 5-7-82 directing the notification of vacancy was illegal.
(3.) SHRI K. M. Dayal learned Senior Counsel appearing for respondent no 2 has submitted that it is open to the learned District Judge to examine the correctness of the order declaring vacancy in a revision filed against the order of allotment as the Act does not contemplate any appeal or revision against an order declaring vacancy itself. In support of his submission, he placed reliance upon a decision given by a learned Single Judge of this Court in Krishna Gopal Sharma v. IVth A.D.J , 1990 (1) ARC 561. In this case neither this question was raised nor there is a decision that in a revision under section 18 of the Act against a find order of allotment the correctness of the order declaring vacancy can also be examined. Therefore, the case cited is not an authority for the proposition advanced by learned counsel for the respondent. The Jaw on the point seems to be well settled by the decision of Honourable Supreme Court in Ganpat Roy's case (supra) and a series of decisions of our Court. It may also be noticed here that Kishan Lal Khurana respondent no. 2 moved an application on 19-8-82 before the R. C. and E O praying that his possession may be regularised, but this application was rejected on 1-9- 1982 and it was directed that further proceedings may be taken in accordance with the order dated 5-7-82 declaring vacancy. Copy of the application and the order have been filed as Annexures-7 and 8 to the writ petition. The respondent no. 2 did not challenge the order dated 1-9-82 which became final;