R. M. Sahai, J. - (1.) IN this petition the only controversy that arises for consideration is whether the District Magistrate while deciding an application u/Sec. 18 (3) of U. P. Act XIII of 1972 (hereinafter referred to as Act) for putting parties back in possession in consequence of an order passed in revision u/Sec. 18 could decide the question of possession and if he could was the decision on facts of the case well founded.
(2.) ADMITTEDLY petitioner was in possession as tenant. An application for allotment was made by opposite party no. 2. On enquiry made by the Inspector the shop was found to be vacant. Consequently vacancy was declared and the shop was allotted to opposite party. Against this order petitioner filed revision. It was allowed. The revising authority held that the Rent Control and Eviction Officer declared vacancy without complying with sub-rule (2) of rule 18. Neither petitioner who was sitting tenant nor landlord were contacted or intimated. The finding of vacancy was set aside on merits as well. It was held that petitioner had filed extracts from assessment register of Municipal Board since 1967-79 to show that he was in occupation and paying taxes. Further no adverse inference could be drawn against petitioner as was done by Rent Control Officer non-filing of extract of assessment of 1979-80 as it could not have been in existence. When proceedings were decided, the revising authority did not find any material on record from which it could be inferred that petitioner who was in occupation of the shop till 1979 suddenly vacated it. The order declaring vacancy and allotting it to opposite party was therefore set aside. After allotment order the opposite party had taken possession over the shop. According to petitioner this was done in violation of stay order passed by revising authority. That however is not material. After allowing of revision the petitioner applied for being put back in possession. It was resisted by opposite party, who claimed to be in possession since much before 1979 the date of allotment. Evidence was also led. The Rent Control and Eviction Officer upheld opposite partys objection. He held that opposite party was in possession since much before. He relied on the circumstances that after the interim order was passed in favour of petitioner by the District Judge and the opposite party forcibly entered into possession then why no action was taken. He was of opinion that the petitioner should have taken proceedings for contempt of court against opposite party or at least he should have filed a complaint with the police. It was also observed by him that opposite party was not in forcible occupation as was clear from report submitted by Station Officer in proceedings u/Sec. 145 CrPC. Reliance was placed on licence in favour of opposite party issued under U. P. Krishi Utpadan Mandi Adhiniyam. It is against this order that petitioner has come to this court. Sub-section (3) of Section 18 requires District Magistrate to put back parties in possession which they were, in pursuance of an order passed in revision u/Sec. 18 of the Act. It reads as under :- "Where an order under Section 16 or 19 is recinded, the District Magistrate shall, on an application being made to him on 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, and may for that purpose use or cause to be used such force as may be necessary." It obviously is provision for restitution with additional power of enforcing the same by police force if necessary. It does not empower the District Magistrate however to sit in judgment over the order passed in revision. A court or authority empowered to implement an order cannot have jurisdiction to examine its finding on merits, except probably where the order may be without jurisdiction or might have been obtained by fraud etc. Barring these exceptions the District Magistrate while exercising power under this sub-section is like execution court and cannot go behind the order. It would be against principle of comity as well. Under the scheme of Act a revising or appellate authority is designated as higher in hierarchy and it would be against law and fairness to permit District Magistrate to entertain evidence and decide question of possession which is beynod the pale of power conferred by this subsection. Even on merits the order passed by Rent Control and Eviction Officer does not appear to be well founded. He has recorded finding in favour of opposite party more on assumptions than on evidence on record. Learned counsel for opposite party vehemently argued that even assuming that District Magistrate could not examine the question of possession he could not pass any order under this sub-section unless it was established that opposite party entered into possession in pursuance of allotment order passed u/Sec. 16. According to him even if finding is erroneous it was for the petitioner to establish that possession was obtained by opposite party in pursuance of allotment order and if he failed to do so the application could not be allowed. The argument appears to have no substance in view of finding recorded by revising authority that petitioner was in possession and the opposite party entered into possession in no other manner except on strength of allotment order.
(3.) IN the result this petition succeeds and is allowed. The order passed by Rent Control and Eviction Officer is quashed. He shall implement the order passed by Revising Authority at an early date. Parties shall bear their own costs.;