- (1.) J. C. Jupta, J. Heard Shri B. N. Agrawal for the petitioner and Shri H. S. Nigam for the contesting respondent No. 2.
(2.) THIS is landlord's writ petition. The dispute relates to House No. 27 (old No. 22) situated in Mohalla Gandhi Nagar, Orai, of which petitioner is admittedly the landlord. It is stated in the writ petition that the said house was con structed in the year 1985 and a portion thereof was let out to the Leprosy Depart ment which vacated the same on Zl-7- 1994. Respondent No. 2 succeeded in procuring a collusive order of allotment in his favour by the order dated 7-10-1994 made by respondent No. 1 and on the same day the said respondent also succeeded in obtaining possession. Respondent No. 2 applied for allotment in the capacity of President, District Samajwadi Party, Orai, and it is alleged in the writ petition that the house in question has been grabbed by respondent No. 2 under the colour of allot ment order, which was made in total dis regard of the provisions of the Act and without following procedure prescribed under Rules. At no stage of the proceed ings before the Rent Control and Eviction Officer upto the time of taking possession, the landlord-petitioner was served any notice whatsoever. After coming to know of the said order of respondent No. 1, the petitioner filed rent revision No. 53 of 1994 which was heard by the District Judge and the same was allowed by the order dated 24-7-1995. The District Judge was pleased to set aside the order of allotment made in favour of respondent No. 2 and directed the Rent Control and Eviction Of ficer to proceed in the matter afresh ac cording to law and the parties were directed to appear before the said officer on 31-7-1995. After the order of the revisional Court, the petitioner made an application under Section 18 (3) of the Act before Rent Control and Eviction Officer on 7-9-1995 restoration of possession through police help but the same has not yet been disposed or by respondent No. 1 as first of all respondent No. 2 was invited to file objection and thereafter on an applica tion made by respondent No. 2 directed the parties to adduce evidence by passing the impugned order. According to the petitioners contention, the provisions of Section 18 (3) are mandatory and there was neither any requirement nor the necessity of taking any evidence and the respondent No. 1 has been allowing respondent No. 2 to remain in unauthorised occupation of petitioner's house despite the fact that the order of allotment made by respondent No. 1 in his favour has been cancelled in revision by the order of the District Judge. The petitioner has, thus, prayed for a writ of mandamus directing the respondent No. 1 to put back the petitioner in vacant possession of the house in dispute after dispossessing the respondent No. 2. The counter-affidavit it is not dis puted that the order of allotment made in favour of respondent No. 2 has been set aside by the revisional authority.
(3.) LEARNED Counsel for the petitioner argued before this Court that the im pugned order of respondent No. 1 is wholly illegal and without jurisdiction as in the circumstances of the present case neither any evidence was required to be adduced nor the same was necessary in the proceed ings initiated on an application under Sec tion 18 (3) of the Act. He further argued that the whole object of passing the im pugned order was simply to allow the respondent No. 2 to continue to remain in occupation unlawfully despite the fact that the order on the basis of which he came to occupy the building, has been cancelled by the District Judge in revision. It was sub mitted that once the order of allotment has been cancelled by the revisional Court respondent No. 2 has no right to remain in occupation of the disputed house and the petitioner is entitled to the restitution as fie is admittedly the owner and landlord of the disputed house. Shri H. S. Nigam, learned Counsel for the respondent No. 2, on the other hand contended that the revisional Court has not specifically set aside the order of Rent Control and Eviction Officer, whereby vacancy was declared nor under law he could do so as he has no power to go into the question of validity of the said order, therefore, after the remand the only course open to the Rent Control and Eviction Officer is either to make an order of release or an order of release or an order of allotment and since no person other than respondent No. 2 has applied for allotment, the house in question is liable to be allotted to him again and, therefore, in the circumstances he could not be dispossessed in the proceedings initiated under 18 (3) of the Act. It was further contended that the writ petition is premature as no final order on the applica tion of the petitioner made under Section 18 (3) of the Act has yet been made by respondent No. 1. It is not disputed before me that the order of the revisional Court, whereby the order of allotment made in favour of respondent No. 2 was set aside, has be come final as the same was never chal lenged by the respondent No. 2. When the said order of allotment had been set aside, the petitioner was entitled to make an application under Section 18 (3) of the Act and in that event the District Magistrate was duty bound to Act as per the provisions of Section 18 (3 ). Section 18 (3) of the Act runs as follows: "18 (3 ). Where the order under Section 16 or Sec. 19 is rescinded, the District Magistrate shall, on an 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 res cinded, and may for that purpose use or cause to be used such force as may be necessary. ";