A.B.Srivastava - (1.) BY means of this petition under Article 226 of the Constitution of India, the petitioner (allottee) has sought a writ of certiorari quashing the order dated 3-8-1993 of the respondent no. 1 IXth Addl. Distt. Judge Kanpur Nagar in a revision under section 18 of U P. Act 13 of 1972 hereinafter referred to as 'the Act'. Since the parties have already exchanged affidavits, this petition has been finally heard and is being disposed of in accordance with rules of the court.
(2.) THE dispute relates to a portion of house No. 89/140 Dalalpurwa Kanpur which was alleged earlier to be in the tenancy of one Ram Chandra who had ceased to occupy the bulding which was kept locked. An application was moved for allotment of the same by the petioner Abdul Quayyum in the allotment application. Anil Kumar, respondent no. 3 was stated to be owner landlord. THE R. C. & E. O. declared the premises to be vacant on 13-7-1987 and issued an allotment order in favour of the petitioner on 27-7-1987 who entered into possession in pursuance of the same. Subsequently one Rahmat Ullah on 30-11-1988 made application for allotment stating that the respondent no. 2 Saeeda was the landlord. This application was rejected by the R. C. & B. O. by his order dated 8-5-1989 Annexure-4 to the petition. On 30-5-1989, the respondent no. 2 moved an application for review under section 16 (5) of the Act aloagwith an application under Section 5 of Limitation Act, against the allotment order dated 27-7-1987, alleging that she has purchased this building by sale deed dated 8-11-1989 from the previous owner Mahabir Prasad and Raghuvendra and neither her predecessors nor she at any stage was given any notice as required under Rule 8 (2) and the learnt about this allotment on 10-5-1989, when she came to know about rejection of the allotment application of Rahamatnllah, This application was rejected by the R. C. & B. O. by his order dated 26-10-1989 Annexure-7 The respondent no. 2 preferred revision against the said order. The learned IXth Addl. Distt. Judge Kanpur by the impugned order dated 3-8-93 (Annexure-8) found that the R, G. & E O acted illegally in not considering the application of the respondent no. 2 for condonation of delay and proceeding to dispose of the review application, the rejection of which was bad In law and premature. He also found that the conclusion of the R. 0. & E. O. on the point as to who amongst Awl Kumar and Saeeda Begum is the landlord is not bated on any valid reason. He accordingly set aside the order dated 26-10-1989 directing the R. C. & E. O. to decide the application under section 5 of Limitation Act first before deciding the review application. In the same breath however, the learned Judge also cancelled the allotment order dated 27-7-87 in favour of the petitioner. It is this part of the order which is Impugned in this petition. Having heard the learned counsel for both the parties and gone through the record, it is apparent that the learned Addl. District Judge has committed manifest error of law, in so far as his findings and final order are contradictory to each other.
(3.) ONCE it was found that the review application under section 16 (5) of the Act could not be taken up for consideration on merits without first deciding the question of limitation and a direction to that effect was given to the R. C. & E. O. It did not remain within the jurisdiction of the learned Judge In exercise of his powers of revision under section 18, to go behind the matter and quash the allotment order which could be done only after the application under section 16 (5) was found to be entertainable and was heard on merits. Consequently part of the Impugned order which cancels the allotment order dated 27-7-1987 deserves to be quashed and the writ petition succeeds accordingly. The writ petition is partly allowed. The order dated 30-8-1993 of the respondent no. 1 cancelling the allotment dated 27-7-87 in favour of the petitioner is quashed at being premature. The question as to whether the said allotment order is sustainable or not, will be decided by the R. C. & E. O. on considering the application under section 5 of Limitation Act and section 16 (5) of Act No. 13 of 1972 as the case may be.;