D.N. Jha, J. - (1.) THIS petition has been directed Under Article 226 of the Constitution feeling aggrieved by the order contained in Annexure -6 passed by the District Judge, Lucknow on 21.02.1978.
(2.) BRIEFLY stating the dispute in the instant writ petition relates to part of the ground floor of House No. JB/988 -Mahanagar, Lucknow. Admittedly toe said premises fell vacant on 3.01.1976 on being vacated by Sri Sen. the said premises has been allotted to the Petitioner on 02.02.76. This allotment order had been challenged by the landlord as he prayed for the release of the said premises. A review has also been filed Under Section 16(5) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The Additional District Magistrate (Civil Supplies) rejected the release application on 15.12.1976. The allotment order made in favor of the Petitioner was maintained. This order was challenged by the landlords opposite parties 2 and 3 in revision. The learned District Judge, Lucknow vide order dated 21.02.1978 rejected the revision preferred by the landlords against the order of the Additional District Magistrate (Civil Supplies) which was numbered as revision No. 52 of 1976 and with respect to the allot meant order the revision was allowed. The operative portion so far as is relevant reads as under ; Nothing in this order shall in any way prejudice any lawful right of the present allottee Dr. Deepak Kumar to seek allotment. Parties shall bear their own costs of these revisions.' This is how the Petitioner is before this Court through this petition. In the instant case a lot of effort has been made to effect service on the landlord that is the opposite parties 2 and 3. I do not think that now any interest of opposite parties 2 and 3 survives so as to detain the disposal of this writ petition on the ground of service. The interest of the landlord opposite parties 2 and 3 was connected with the release of the premises in their favour and that having been rejected no interest of these persons survives in any manner especially by reason of the fact that they did not challenge the order passed by the District Judge, Lucknow before this Court. On being satisfied that all efforts made by the Petitioner to effect service on opposite parties 2 and 3 miserably failed and there is no alternative but to dispose of this writ petition on merits as it pertains to year 1978 and involves the interest of the Petitioner alone which as urged has been adversely affected by the District Judge, Lucknow,
(3.) I have heard the learned Counsel for the Petitioner at length and gone through the impugned orders and various materials brought on the record, of this case. Learned Counsel vehemently urged that in passing the impugned order the learned District Judge committed jurisdictional error. To support his allegations he placed reliance on the explanation of Section 18(2) of the Act. Learned Counsel urged that the District Judge while disposing of the appeal had no power to recommend allotment in favor of persons other than the Petitioner and by his observation in the operative part of the order the premises would be thrown open to the persons other than the Petitioner and, therefore, the order suffers from manifest jurisdictional error. I am unable to subscribe to this submission. Section 18 of the Act has to be read as a whole which reads as under : No appeal shall lie from any order Under Section 16 or Section 19 whether made before or after the commencement of this section, but any person aggrieved by a final order under any of the said sections, may, within 15 days from the date of such order, prefer a revision to the District Judge on any one or more of the following grounds, namely (a) that the District Magistrate has exercised a jurisdiction not vested in him by law ; (b) that the District Magistrate has failed to exercise a jurisdiction so vested in him by law ; (c) that the District Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity. (2) The revising authority may confirm or rescind the final order made Under Sub -section (1) or may remand the case to the District Magistrate for rehearing, and pending the revision may stay the operation of such order on such terms, if any, as it thinks fit. Explanation - The power to rescind the final order under this Sub -section shall not include the power to pass an allotment order or to direct the passing of an allotment order in favor of a person different from the allot tee mentioned in the order under revision. (3) Where an order Under Section 16 or Section 19 is rescinded, the District Magistrate shall, on application being made to him on that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has been rescinded, and may for that purpose use or cause to be used such force as may be necessary. On the reading of the whole Section the basic powers conferred on the provisional authority is either to confirm the order or to rescind the final order and it further empowers him to remand the case to the District Magistrate for rehearing as per Sub -clause (2). There is also power to stay. This Sub -section has to be read in conjunction with the explanation. The submission of the learned Counsel for the Petitioner is that the District Magistrate m his operative part has resorted to indirectly giving due for allotment to persons other than the Petitioner such an interpretation of the operative part would tantamount to distortion of the very spirit of the Section. The District Judge has been vested with the power to remand the case to the District Magistrate. The word 'remand' has to be liberally construed. If the word 'remand' has to be construed as urged by the learned Counsel for the Petitioner then the entire powers would be reduced to redundancy because if per chance the District Judge rescinds the order, directions can be issued to the Subordinate Authority i.e. to the District Magistrate for rehearing. The word 'rehearing' also envisages something more than merely considering the question of allotment of the disputed premises to the person who was already allot tee. If such a narrow construction is to be applied to the provision then the whole purpose of revising authority would be rendered nugatory. if an authority is vested with the power to do or to undo and to order rehearing then the scope cannot be interpreted to limit the jurisdiction. The question under challenge before the District Judge was allotment made in favor of the Petitioner. The learned Judge after applying his mind to the facts of the case reached the conclusion that authority had acted with material irregularity and, therefore, the allotment order made in favor of the Petitioner could not be sustained in the eyes of law. If the allotment order could not be sustained then obviously the field has to be left open to the District Magistrate for allotment to other persons including the Petitioner and that is what precisely has been done by the learned District Judge In fact the curb that has been put on the powers of the District Judge while hearing a revision through the explanation relates to the question of allotment. The Legislature in its wisdom has not vested the District Judge with the power of allotment and that is why it has been provided that the power to rescind the final order shall not include the power to pass an allotment order and thereafter, therefore, the word used is 'or' that is to say in the alternative not to make choose in the matter of allotment from amongst various applicants who might be a party to the allotment of the premises. The phrase "or to direct the passing of an allotment order in favor of the person different from the allot tee mentioned in order under revision" clearly shows that no selection in the matter of allotment can be made by the revising authority. If Sub -section (2) is read in consonance with the explanation this is the only interpretation that can reasonably be reached. It is well settled that explanation to a particular Sub -section or proviso has to be read harmoniously with the main provision so that the real purpose provided under the section is not defeated. If harmonious construction is not made then explanation would override the general power vested in the revising authority as per Sub -section (2) of Section 18 of the Act.;