D.N. Jha, J. - (1.) PETITIONER Saghir Ahmad has filed this petition under Article 226 of the Constitution praying for quashing of the orders dated 7 -6 -1973 and 12 -6 -1973 passed by the Area Rationing Officer, Lucknow, opposite party No. 3.
(2.) THE brief fads are that the dispute between the Petitioner Saghir Ahmad and Smt. Mehar Jahan relates to shop No. 229/47 situate at Chanwal Wali Gali, police station Chowk, Lucknow. The Petitioner is the allottee vide allotment order dated 17 -10 -1968 and opposite party No. 4 Smt. Mehar Jahan is the landlady. Formerly this shop was let out by the landlady Mehar Jahan to one Noor Mohammad who was the father -in -law of Saghir Ahmad on Rs. 50/ - per month through an' agreement reduced in writing. Noor Mohammad remained in occupation of the shop for three months and thereafter on 13 -8 -1968 he intimated the Rent Control and Eviction Officer, Lucknow that he had vacated the shop on 10 -8 -1968 and it may be allotted to any deserving person. No information about vacating the premises appears to have been communicated to the landlady. This shop was ultimately allotted to the Petitioner Saghir Ahmad son -in -law of Noor Mohammad on 17 -10 -1968 under the old U.P. (Temporary) Rent Control and Eviction Act 1947 (hereinafter to be referred to as the old Act). The landlady, however, was not willing to accept the Petitioner as a tenant. The Petitioner in order to strengthen his case moved an application under Section 3 -A of the old Act and the rent of the premises vide order dated 14 -8 -1970 was fixed at Rs. 20/ - per month. The landlady moved an application under Section 7 -B of the old Act for payment of rent amounting to Rs. 1150/ -. It may be mentioned that earlier after the allotment some revision "had been moved before the Commissioner but that was dismissed in default. This application under Section 7 -B also, it appears, was not pursued. Ultimately an application was moved by the landlord for cancellation of the allotment order on the ground of fraud and misrepresentation. In the meantime U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as new Act) came into force and this application was pursued by the landlady in accordance with the provisions of the new Act. Opposite party No. 3 obtained report from the Inspector and after hearing the parties vide order dated 7 -6 -1973 held that Sri Akhlak Ahmad who was the son of Noor Mohammad who was father -in -law of the Petitioner Saghir Ahmad could not be deemed to be a family member of Saghir Ahmad as defined under Section 3(g) of the Act and it was Akhlak Ahmad who was running a business in the name of Akhlak Tent House in the shop in question and hence he came to the conclusion that it will be a case where the lawful tenant ceased to occupy the business and allowed it to be occupied by other person who was not the member of his family and declared the said shop in question as vacant and open for allotment/release. This order is dated 7 -6 -1973 and is Annexure -2. Thereafter the vacancy was notified regarding the shop vide order dated 12 -6 -1973 and objections about it being vacant were required to be submitted by 18 -6 -1973. This order is Annexure -3. It is in these circumstances that the Petitioner has come up before this Court impugning the two orders passed by opposite party No. 3 by means of the present petition. The petition has been contested on behalf of opposite party No. 4 Smt. Mehar Jahan, the landlady and it is asserted in the counter affidavit that the orders passed by opposite party No. 3 are legal, just and proper and call for no interference in exercise of discretionary jurisdiction vested in this Court under Article 226 of the Constitution. It is also asserted that only a vacancy has been declared and it will be open for the opposite party No. 4 to file a review application or challenge the allotment/release order by means of appeal before the District Judge. I have heard the learned Counsel for the parties. The learned Counsel for the Petitioner argued that, the application moved by opposite party No. 4 before opposite party No. 3 was not maintainable as it was not covered within the purview of any of the provisions of the old Act. The second argument of the learned Counsel is that on a facts and grounds had been taken in earlier proceedings and that having been rejected by the Commissioner this present application was barred by principles of res -judicata. The third point pressed by him is that since the Petitioner was admitted as tenant by opposite party No. 4 it was not open to her to challenge the same and on this he relied upon the proceedings initialed by opposite party No. 4 under Section 7 -B of the old Act. I now propose to deal with each of the submissions raised by the learned Counsel for the Petitioner.
(3.) THE learned Counsel for the Petitioner in order to substantiate his first argument about the maintainability of the application referred to the various provisions of the old Act and argued that cancellation of the allotment order on the basis of fraud and misrepresentation was not covered by any of the provisions and as such the application was not maintainable. It may be mentioned that there is an inherent jurisdiction in every authority to recall an order obtained fraudulently as, this power flows from the power which is conferred by statute to exercise it, inasmuch as every authority is required to exercise the power conferred by the statute in an unbiased atmosphere free from fraudulent circumstances. If fraud is exercised on an authority or court it is well recognised that the court or the authority from whom an order is obtained will have inherent power to rectify the mistake and to restore status quo ante. I, therefore, see no force in the contention of the learned Counsel for the Petitioner that the application for cancellation of the allotment order on the ground of fraud and misrepresentation was not maintainable either under the old or under the new Act.;