N.D.AHUJA, J. - (1.) THE petitioner is the landlord of accommodation which was in the tenancy of a Post Office. The accommodation in question was vacated by the Post Offic some time in August, 1979. An intimation was received by the petitioner in the third week of September, 1979 from the Rent Control and Eviction Officer that applications for allotment of the aforesaid accommodation will be received up to 25th September, 1979. It appears that an order of declaring vacancy had already been passed by the Rent Control and Eviction Officer. On 25th September, 1979 an application was made on behalf of the petitioner for one months' time to the file objection against the order of declaration of vacancy. However, only a fortnight time was granted and 11th October, 1979 was fixed apparently for further proceedings in the matter. However, even before the time which had been granted to the petitioner for filing the objection had expired an order of allotment was passed in respect of the accommodation in question in favour of Sushil Kumar Sharma respondent No. 2 on 27th September, 1979, notice was received by the petitioner on 27th September, 1979.
(2.) IT appears that 30th September, 1979 to 2nd October, 1979 were holidays for Dashahra and birthday of Mahatma Gandhi. On 3rd October, 1979 the petitioner filed a revision before the District Judge against the order of allotment dated 27th September, 1979 passed by the Rent Control and Eviction Officer allotting the accommodation in question in favour of respondent No. 2. On the same day he filed an application for review before the Rent Control and Eviction Officer as also for releasing the accommodation in question in his favour. The revision filed by the petitioner was admitted by the District Judge and interim order saying the operation of the order dated 17th September, 1979 was passed. However, respondent No. 2 put in appearance and the interim order of stay was vacated by the District Judge the very next day namely, on 4th October, 1979. The revision filed by the petitioner was ultimately allowed on 10th December, 1979 and the order of allotment dated 27th September, 1979 was set-aside by the District Judge. That order was challenged by respondent No. 2 before the Code in Civil Misc. Writ Petition No. 10236 of 1979 which was dismissed on 17th April, 1980. Thereafter, an application was made by the petitioner on 28th April, 1980 before the Rent Control and Eviction Officer under Section 18(3) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred as to the Act) with a prayer that the petitioner may be put back in possession over the accommodation in question the order of allotment in favour of respondent No. 2 under Section 16 of the Act having been rescined. It has been stated in paragraph 21 of the writ petition that no order passed by the Rent Control and Eviction Officer on the application dated 28th April, 1980 till 4th September, 1980 when another application had to be made with the same prayer. The application made by the petitioner were opposed by respondent No. 2 on the ground that it was expedient that till final orders were passed on the application for release and allotment he should be allowed to continue in possession over the accommodation in question inasmuch as there was apprehension that the petitioner on getting possession over the said accommodation may demolish the same. The objection taken by respondent No. 2 found favour with the Rent Control and Eviction Officer and he took the view that till the application for release and allotment were finally decided it was expedient to permit respondent No. 2 to continue in occupation of the accommodation in question, notwithstanding the fact that the order of allotment passed in his favour under Section 16 of the Act has been rescinded. On this finding the Rent Control and Eviction Officer dismissed the two application dated 28th April, 1980 and 4th September, 1980 filed by the petitioner by this order dated 6th March, 1981. It is this order of the Rent Control and Eviction Officer which is sought to be quashed in the present writ petition.
(3.) IT has been urged by counsel for the petitioner that the provisions of Section 18(3) of the Act were mandatory in nature and the Rent Control and Eviction Officer has committed manifest error of law in dismissing the application made by the petitioner for being put back in possession over the accommodation in question under the said Section 18(3) of the Act consequent upon the order of allotment passed in favour of respondent No. 2 under Section 16 of the Act being rescinded. On behalf of respondent No. 2 on the other hand, it has been urged by this counsel that Section 18(3) of the Act applied only to those cases were the landlord was in actual physical possession over an accommodation before the order of allotment which was subsequently rescinded had been passed and possession delivered to the allottee in pursuance of such order of allotment.;