S.U. Khan, J. - (1.) ON 31.1.1979 a residential accommodation bearing No. 163, Ghosi Mohalla Lal Kurti, Meerut Cantt was allotted by R.C. and E.O., Meerut to respondent No. 3 under section 16 of U.P. Act No. 13 of 1972. At that time the accommodation was in the form of building i.e. roofed structure. Petitioner -landlord filed a revision against the said order of allotment, which was dismissed. Thereafter on 25.4.1979 Cantonment Board demolished the building. Allottee -respondent No. 3 filed an application for taking possession of the allotted accommodation under section 16(4) of the Act. Respondent No. 3 was already residing in the nearby accommodation. R.C. and E.O., Meerut by order dated 12.12.1980 rejected the application for delivery of possession on the ground that w.e.f. 25.4.1979 accommodation ceased to be a building (as defined under section 3(i) of the Act) as it was demolished by Cantonment Board, Meerut and it no more remained a roofed structure. In the said order it was ordered that allottee was at liberty to apply for delivery of possession as soon as on that piece of land structure was raised and it was roofed. Thereafter on 29.12.1980 another application for possession was filed. R.C. and E.O., Meerut passed an order on 13.8.1981 directing delivery of possession of open land. In the said order it was mentioned that respondent No. 3 was residing in adjoining accommodation hence possession of open piece of land could be given to him, which he could use as court -yard or lawn. According to R.C. and E.O. even the open piece of land was building, as it was appurtenant to the building which allottee was already occupying. Against the said order petitioner filed a revision being Revision No. 200 of 1981 under section 18 of the Act. IIIrd Additional District Judge, Meerut through judgment and order dated 16.10.1983 dismissed the revision hence this writ petition. The Revisional Court did not agree with the R.C. and E.O. regarding delivery of possession on the ground that allotted premises was adjacent to the building already in occupation of the allottee. However, Revisional Court dismissed the revision and upheld the order passed by R.C. and E.O. on the ground that at the time when allotment was made premises in dispute was building (i.e. roofed structure). The Revisional Court also observed that taking a contrary view would amount to granting liberty to the landlord to demolish the building after allotment and thus frustrate the allotment order. In the instant case the demolition had been done not by the landlord but by the Cantonment Board. In my opinion the view of the Revisional Court is not correct. Unless building continues to be building until delivery possession in pursuance of allotment order, possession cannot be delivered. Section 29 of the Act is not attracted to the facts of the case as neither building has been destroyed in consequence of fire, tempest flood or excessive rain fall or of the commission of mischief or any other offence in the course of collective disturbance nor tenant has expressed any willingness to construct the destroyed building. It has been held by Supreme Court in V. Ibrayi v. S.K. Hajee : AIR 2003 SC 4453, that firstly in such situation section 108(B)(e) of T.P. Act is not applicable and secondly where premises is governed by the State Rent Act, provisions of section 108 and other provisions of T.P. Act have no application. Under section 38 of U.P. Act No. 13 of 1972 provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in T.P. Act.
(2.) LEARNED Counsel for the petitioner has cited Raichand v. District Judge, 1981 (7) ALR 590, for the proposition that R.C. and E.O. apart from section 16(5) of the Act has got no power to review. Accordingly, writ petition is allowed. Order passed by R.C. and E.O. dated 13.8.1981 and order passed by Revisional Court dated 16.10.1981 are set aside. Application for possession moved by Respondent No. 3 before R.C. and E.O. is dismissed.;