- (1.) J. C. Gupta, J. Heard Sri S. N. Verma along with Sri A. C. Tripathi, Counsel for the petitioners and Sri TP. Singh, Counsel ap pearing for respondent No. 3.
(2.) BY means of this writ petition, the petitioners have challenged the order of the Rent Control and Eviction Officer dated 13-2-97 releasing the disputed accommoda tion in favour of the landlord, respondent No. 3 after declaring vacancy by the order dated 27-10-94 and also the order of the revisipnal Court dated 8-7-97 passed by the District Judge, Varanasi dismissing the revision preferred by the petitioners. From the findings recorded by the Courts below, it emerges out that the petitioners came in occupation of the ac commodation in question in the year 1986 with the consent of the landlord and the petitioners' case that they were in occupa tion since the year 1975 as tenant, was not believed. Learned Counsel for the petitioner firstly urged that the Rent Control and Evic tion Officer declared the vacancy on an as sumption that it was a case of deemed vacancy under Section 12 of U. P. Act No. 13 of 1972 which, according to him was not attracted to the facts of the case. On the other hand, learned Counsel for the respon dents argued that even if Section 12 in terms was not attracted, it was still a case of vacan cy, as under the provisions of the present Act, no person can occupy the building after the enforcement of the Act without a valid order of allotment. Section 13 of the Act imposes restrictions on occupation of build ing without an order of allotment or release. It says that where the landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an un authorised occupant of such building or part.
(3.) IN the Full Bench decision in Nootan Kumar and others v. Hnd Additional District Judge, Banda and others, 1993 (2) ARC 204, it was held that where the contract has been entered into in violation of Section 11 of the Act, the possession of the occupant will be unauthorised under Section 13 of the Act. Section 11 puts a total prohibition on let ting without allotment order. It says that no person shall let out any building except in pursuance of an order of allotment issued under Section 16. IN the instant case, as per the findings recorded by the Courts below, the petitioners came into occupation of the building in question in the year 1986 without an order of allotment. It is im material whether they came as licensee or as tenants. IN such a situation the District Magistrate had jurisdiction to pass an order of allotment or release after treating the building vacant. It is well settled that merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other provision of law under which the order could be validly made. Mere recital of a wrong provision of law does not have the effect of invalidating an order which is otherwise within the power of the authority making it. In this view of the matter the mere fact that the Rent Control and Eviction Officer has wrongly proceeded to treat the building vacant as a case of deemed vacancy, he would not loose jurisdiction to pass an order of allotment, as vacancy in law existed by virtue of the provisions of Section 11 read with Section 13 of the Act arisen.;