K.C. Agrawal, J. - (1.) THIS writ petition has been filed by Chandra Shekhar, the tenant of premises No. 87/141, Chandika Devi Road, Kanpur. Respondent No. 3 is, admittedly, its landlord and owner. An application under Rule 6 of Rules framed under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 was filed by Respondent No. 3 on 18 -11 -1971. During the pendency of this application U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the new Act') came into force with effect from 15 -7 -1972. The application under Rule 6 of the old Act made by Respondent No. 3 was converted into one under Section 16 of the new Act. The dispute which arose for decision before the Prescribed Authority after the conversion of the application into one under Section 16 of the new Act, was whether the premises in question was vacant to which Section 16 of the said Act could apply.
(2.) THE case of Respondent No. 3 was that the Petitioner had allowed the said premises given to him in his occupation as a tenant to be occupied by one Rafiq and as the possession of Rafiq was all exclusive for himself, therefore, the building was to be deemed to have ceased to be occupied by the Petitioner. The application was contested by the Petitioner on the ground that he was the real and genuine tenant of the premises in question and Rafiq was simply holding the premises on his behalf, and, therefore, there was no vacancy which could entitle the Respondent No. 3 to file an application for release in his favour. Being of the opinion that the premises was not required by Respondent No. 3, the application filed by him was rejected on 3 -12 -1972. Against the judgment of the Prescribed Authority, an appeal was filed by Respondent No. 3 before the District Judge under Section 18 of the new Act. The Petitioner also filed a cross objection against the finding of the Prescribed Authority holding that he was not in occupation of the premises. Both the appeal and the cross objection were decided by means of a common judgment dated 18 -1 -1974. The appeal filed by Respondent No. 3 was allowed whereas the cross objection preferred by the petitioner was dismissed. As a result of the order made by the learned District Judge the application for release of Respondent No. 3 in respect of the shop in dispute stood allowed. Aggrieved, the Petitioner has filed the present writ petition. Learned Counsel for the tenant Petitioner contended that the appeal filed by Respondent No. 3 before the learned District Judge was not maintainable and, therefore, the judgment given in his favour by the learned District Judge was a nullity. The provision which may be referred in order to consider the above submission of the learned counsel for the Petitioner is Section 43(2)(b) of the new Act. By the said clause, an application or proceeding pending immediately before the commencement of the new Act pending under Section 7 of the old Act or under Rule 6 of the Rules framed under the old Act were directed to be disposed of by the District Magistrate in accordance with the provisions of Sections 16 and 17 of the new Act. It has not been disputed before me that on account of the implementation of the aforesaid section, the application made by Respondent No. 3 under Section 6 was rightly decided in accordance with the procedure prescribed by Section 16 of the new Act. The submission of the learned Counsel for the Petitioner, however, was that the words "in accordance with the provisions", only meant that the manner and the mode prescribed for deciding an application under Section 16 of the new Act would be applicable to an application filed under Rule 6 of the Rules framed under the old Act as well. He urged that the Prescribed Authority, therefore, could decide the application made under the old provision in accordance with Section 16 of the new Act, and nothing further could be inferred from the language employed in Sub -clause (b) of Section 43(2). Learned Counsel for the Petitioner contended that a right of appeal is a creation of Statute and it has to be conferred specifically on a litigant. The same cannot be impliedly found in any provision or Statute unless there is a specific provision for the same in the Statute. The submission of the learned Counsel for the Petitioner has no substance. A close reading of Clause (b) of Section 43(2) of the new Act will disclose that the intention behind this provision is that any application or proceeding pending under Rule 6 or Section 7 of the old Act has to be decided or disposed of in accordance with the provisions of Section 16 or Section 17 of the new Act. As a necessary consequence, an application made under the old Act will be treated as one made under the new Act for all intents and purposes. It is not possible to accept the submission of the learned Counsel for the Petitioner that the words "in accordance with the provisions" only referred to the manner in which the application had to be decided by the Prescribed Authority. While it cannot be disputed that an application made under the old provision has to be decided in accordance with the procedure prescribed for the disposal of the application under the new Act, it also at the same time cannot be doubted that the procedure for the disposal of such an application would apply for all purposes and, therefore, if an order passed under Section 16 has been made appealable under the new Act, it follows as a necessary corollary that the order passed on the application under Rule 6 of the old Act will also be one appealable under Section 18 of the new Act. A look at the provision of Section 43(2)(i) and (j) fortifies my opinion that the intention of the legislature was that an order passed under Section 43(2)(b) should be appealable as those covered by Clauses (i) and (j) of Sub -section (2) of Section 43 of the new Act. These Clauses (i) and (j) of Section 43(2) are those where orders were passed before the enforcement of the new Act, but no revision had been preferred under the old Act challenging the correctness of those orders. When the legislature provided that orders of the above categories could be appealable to the District Judge under Section 18, as mentioned in Clause (q) of Section 43(2), there is no reason to find that an order passed under Clause (b) of Section 43(2) of the new Act will not be appealable. I, therefore, overrule the first submission made by the learned Counsel for the Petitioner.
(3.) COMING to the merits, submission of the learned Counsel for the Petitioner was that the District Judge did not properly consider the case set up by the Petitioner. He urged that the Petitioner as well as Respondent No. 3 had made an admission from which it was clear that the Petitioner was accepted to be a tenant of the premises by Respondent No. 3. He contended that from that admission it was also clear that Respondent No. 3 agreed that Rafiq had no concern with the disputed shop. The submission made by the learned Counsel for the Petitioner has not impressed me. Reading the statement made by the counsel before the learned District Judge, it appears that the Respondent No. 3 did not admit that the Petitioner had not ceased to occupy the premises, and that the same was not in the exclusive possession of Rafiq. The crux of the matter is that the Respondent No. 3 did not make any such statement. So far as the merits of the case are concerned, the learned District Judge found that the Petitioner had ceased to occupy the premises, and that he had allowed it to be occupied by Rafiq, who was admittedly not a member of his family. This finding of the learned District Judge is one of fact and it is not possible to reverse the same in these proceedings as the High Court exercising the powers under Article 226 of the Constitution does not sit as an appellate court.;