K.C. Agarwal, J. - (1.) THIS writ petition has been filed against the judgment of the learned Second Additional District Judge dated 21 -2 -1974. The Respondent No. 1 filed an application on 28 -7 -1973 for allotment of a portion of house No. 179 Roshan Bagh, Allahabad belonging to the Petitioner No. 1. The Respondent No. 1 alleged that the said portion of the house was previously in occupation of one Sri Krishna Bhave. Sri Krishna Bhave had vacated the premises and the same was lying vacant. On these allegations the Respondent No. 1 alleged that as he needed the said portion for the purpose of his residence, the same be allotted to him. It appears that the Rent Control and Eviction Officer issued a commission for enquiry into the question as to whether any vacancy occurred at the time or not. A report, in pursuance of the same, was submitted by the Commissioner. Vacancy was consequently notified on 13 -8 -1973. The Petitioner No. 1 thereupon filed an objection contesting the application of the Respondent No. 1 for allotment on the grounds that the house had neither fallen vacant nor was it likely to fall vacant. It appears that the Petitioner No. 2 Trilok Singh also filed an application for allotment of the same premises asserting that in case the Rent Control and Eviction Officer came to the conclusion that there was a vacancy the same be allotted to him.
(2.) BY the order dated 20 -10 -1973 the Rent Control and Eviction Officer found that there was no vacancy in respect of portion in dispute hence he held that the house was not allotable. He directed that all the papers concerning the allotment be filed. Aggrieved the Respondent No. 1 filed an appeal before the learned District Judge. The same was transferred to the learned IInd Addl, District Judge, Allahabad and was decided by means of the impugned judgment and order. It may be noted that the Petitioner No. 2 did not file any appeal against the order and judgment of the Rent Control and Eviction Officer dated 20 -10 -1973 by which his application for allotment should also be deemed to have been rejected. The learned Counsel for the Petitioners urged that the appeal filed by the Respondent No. 1 before the learned District Judge was not maintainable. He submitted that an appeal under Section 18 of the New Act lies against the orders passed under Section 16 of the Act and since the order passed in the instant case by the Rent Control and Eviction Officer was only an order holding that there was no vacancy, therefore, the same was not an order under Section 16 of the Act. Had the matter been confined to this there would have been no difficulty in holding that the order was not appealable. But the fact is that by the impugned order the Rent Control and Eviction Officer did not only hold that there was no vacancy in respect of the portion in dispute but also directed that the papers relating to the allotment of the said premises shall be filed. An order directing the papers to be filed in the circumstances of the present case, would amount to rejection of the application. Since as a result of the order passed by the Rent Control and Eviction Officer, the application made by the Respondent No. 1 for allotment stood dismissed, the said order was covered by Section 16(1) of the Act. The appeal, therefore, filed by the Respondent No. 1 was competent and could not be dismissed on the ground suggested by the learned Counsel for the Petitioner.
(3.) LINKED with the above the submission of the learned Counsel for the Petitioner was that the appeal filed before the District Judge was incompetent also on the ground that the Petitioner No. 2 had not been impleaded as a party. Suffice it to mention that Respondent No. 1 was concerned with his grievance. His grievance was that the order of the Rent Control and Eviction Officer holding that there was no vacancy was incorrect. He further wanted that the premises should be allotted to him and for that purpose there was no provision either in the Act or in the Rules which required him to implead all the applicants for allotment before the District Judge.;