R.M.Sahai, J - (1.) DISPUTE in this petition filed by petitioner who claims to have been in possession prior to July 1976 and the allottee has to be decided primarily on jurisdiction of Rent Control and Eviction Officer to review his order and also if this Court should interfere if as a result of quashing of revisional order another illegal order is restored. In September 1976, opposite -party no. 2 applied for allotment. On 24th September, 1976 the landlord intimated that certain tenant had vacated and premises were available for allotment. They were inspected on 11th October, 1976. The Inspector found the shop to be vacant. He also mentioned in the report that when he contacted opposite -party no. 2 he informed him that he had sent the intimation about vacancy on 24th September, 1976. On receipt of report vacancy was declared on same day. On 15th October, 1976 petitioner filed objection claiming to be in possession along with certain tenant who vacated the premises in June, 1976 whereafter the opposite -party settled it with him on 1st July, 1976. His claim was purported to be supported by an application filed by the landlord in 1977, affidavit of certain tenant and rent receipts issued by opposite -party for the month of July, 1976. Parties filed other evidence as well. The Rent Control and Eviction Officer after examining them in detail found that premises were vacated by certain tenant in September, 1976. Reliance was placed on intimation of vacancy sent by landlord on 24th September 1976. His subsequent denial and issuing of receipt in favour of petitioner were held to be after thought. He held that as petitioner was willing to pay Rs. 80/ - per month instead of Rs. 40/ - the landlord issued him receipts subsequently to help him. It was found that shop was not vacated in May, 1976 as claimed by petitioner. Therefore there was no question of petitioner's occupation as licensee or tenant in July, 1976 consequently there was no question of its regularisation under section 14 of the Act. It was also held that petitioner was never in occupation of the shop although he carried on business in front of the shop in dispute since much before. Against this order petitioner filed a revision application and claimed that certain important facts to establish his occupation of the premises and its settlement by the landlord prior to July, 1976 could not be brought on record. The Rent Control and Eviction Officer thereby recalled his order. It was held that shop could not be held vacant as petitioner used to carry on business with earlier tenant and after her vacation he continued in possession and paid rent to landlord since June, 1976. Therefore his tenancy stood regularised under section 14 of Act XIII of 1972. Dispossession of petitioner from the shop or its allotment was held not to be in interest of justice. In revision the order was set aside being without jurisdiction. It was held that Rent Control and Eviction Officer was not empowered to review his order as the only provision which permits review was sub -section (5) of Section 16 of the Act but neither the application was under that section nor circumstances of that sub -section existed. In absence of any statutory provision a court or an authority exercising judicial or quasi judicial power cannot review his order except in those exceptional cases where the mistake is of Court. Jurisdiction apart the order of review is not sustainable even on merits. Even if the Rent Control and Eviction Officer would have had authority to recall his order due to error of law or fact the order was liable to be quashed as it is bereft of any finding. No reasons has been given to ignore the letter of landlord sent on 24th September, 1976 intimating vacancy. Nor the report of inspection has been examined. In absence of any material which could render the findings of fact erroneous, the Rent Control and Eviction Officer could not review his order merely because he felt that it was not in interest of justice to dispossess petitioner. The finding is so palpably erroneous that it is doubtful if it could have been maintained even if would have been recorded in original order,
(2.) THE learned counsel for the petitioner argued that the finding recorded by the Rent Control and Eviction Officer that premises were vacant since September, 1976 was erroneous on face of it. He relied on the objection filed by the petitioner before the Rent Control and Eviction Officer, copy of which has been filed as Annexure 'T' to the writ petition, copy of the affidavit filed by the landlord as Annexure 'IX' to the writ petition, statement of the earlier tenant and the letter sent by the landlord copy of which has been filed as Annexure 'II' to the writ petition and urged that these affidavits, letters and documents established beyond dobut that the shop was vacant since July 1976 and the landlord had permitted the petitioner to occupy it. After hearing him at length and going through these documents it appears that the contention is without any merit. All these documents came into existence after the vacancy was declared in October, 1976. This declaration of vacancy was preceded not only by an application for allotment but also by inspection by Rent Control Inspector. In his report the Rent Contorol Inspector has clearly mentioned that the shop vacated on 1st September, 1976 and intimation of it was sent by the landlord on 24th September, 1976. He had further mentioned that when he verified from the landlord he stated that letter dated 24th September, 1976 was written by him. THEse recitals in the report of the Rent Control Inspector were not challenged before the Rent Control and Eviction Officer nor any material has been brought on record to show that the Inspector submitted the report without going at the spot or without contacting the landlord. If this report is believed as was done by the Rent Control and Eviction Officer then it is apparent that these documents and affidavits which have come on record later were after thought in order to help the petitioner, and they could not be believed. The learned counsel then urged that no revision lay against the order passed by the Rent Control and Eviction Officer recalling his earlier order and dismissing the allotment application filed by the opposite -party. Reliance is placed on Santosh Kumar Misra v. Sri Ramanuj Darshan Mahavidyalaya, 1977 Allahabad Rent Cases 77. It is not necessary to go into this controversy as even assuming that revision was not maintainable, the petition can not succeed. The learned counsel was asked time and again to satisfy that the second order passed by the Rent Control and Eviction Officer by which he reviewed his earlier order, was sustainable in law and if the second order can not be sustained then it is well settled that an order which is illegal cannot be quashed or set -aside in writ jurisdiction if quashing of it results in bringing on record another illegal order. Therefore, the learned counsel was given opportunity but as pointed out earlier despite his lengthy and strenous argument be failed to satisfy that the order of the Rent Control and Eviction Officer which was passed by him earlier suffers from any error which could result in miscarriage of justice apparent on the face of record or could justify its recall or review.
(3.) IT is then urged that the second order passed by the Rent Control and Eviction Officer was under sub -rule (3) of Rule 8 and, therefore, the Revising Authority committed an error in treating it as an order of review. The contention again is without any merit. The vacancy was declared on 11th October, 1976, intimation of which was sent to the landlord and to all persons concerned. In pursuance of this vacany objection was filed under sub -rule (2) which was decided by the Rent Control and Eviction Officer under sub -rule (3). The first order passed by him, therefore, was under these sub -rules and it can not be said that the second order was under sub -rule (3). In the end the learned counsel urged that Section 14 was ultra vires as it discriminates between tenants who came into occupation with the consent of the landlord in July 1976 and other tenants. According to him the mention of the date was arbitrary. The submission is not only devoid of any substance but is misconceived. It has been raised by way of supplementary affidavit filed after the petition had been heard once. No proper foundation for it has been laid. No opportunity could be given to the counsel for the opposite -parties. If the petitioner desired to challenge the vires of the section then he should have filed an application of which notice could be issued to the learned Advocate General but as he has not complied with the procedure, the submission cannot be entertained. Even otherwise, there appears no substance in it. The Act was amended in 1976 and the legislature in its wisdom provided that any person who was in occupation prior to July, 1976 with the consent of the landlord shall be entitled to continue in occupation and his tenancy shall be regularised. It does not create any discrimination between any person who might come in occupation subsequent to this date. There is no similarity between the person who might be in occupation prior to July, 1976 and who might come in occupation after 1976. The learned counsel for the petitioner urged that his interest may be safeguarded as he is in possession and a direction may be given that so long proceedings are not finalised he may not be evicted. It is not necessary to give any direction as the order of the Revising Authority has not been quashed which itself says that the Rent Control Inspector shall now take up the matter and decide the allotmet proceedings afresh.;