NIREN KUMAR DAS Vs. DISTRICT JUDGE PILIBHIT

JUDGEMENT

(1.) RESPONDENT No. 4 Jamil Ahmad is the landlord of an accommodation of which respondents 5 and 6 were the tenants. Respondent No. 4 filed a suit for ejectment of respondents 5 and 6. The suit was decreed. Before, however, even an application for execution of the decree was made by respondent No. 4 an application was made by respondent No. 5 before the Rent Control and Eviction Officer intimating him that he was going to vacate the accommodation aforesaid. It appears that another application was made by the petitioner for allotment of the said accommodation. An order of allotment was passed by the Rent Control and Eviction Officer in favour of the petitioner on December 21, 1971. Coming to know of the order of allotment respondent No. 4 made an application before the Rent Control and Eviction Officer on January 4, 1972, for setting aside that order. As is apparent from the order of the Rent Control and Eviction Officer dated August 25, 1972, a copy of which has been filed as Annexure IV to the writ petition, the said application had been made on the ground that the accommodation in question was neither vacant nor was likely to fall vacant and that the petitioner and respondents 5 and 6 were in collusion and by practising fraud obtained the order of allotment referred to above. This application was contested by the petitioner and was dismissed by the Rent Control and Eviction Officer by the aforesaid order dated August 25, 1972. Against that order respondent No. 4 filed an appeal before the District Judge under Section 18 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The appeal was allowed on July 19, 1973, on the finding that the accommodation in question was neither vacant nor was likely to fall vacant on the date when the order of allotment was passed in favour of the petitioner and consequently the said order was without jurisdiction. It is this order of the District Judge which is sought to be quashed in the present writ petition.

(2.) THREE submissions were made by counsel for the petitioner- (1) that the order of allotment having been passed on December 21, 1971, i.e., before the coming into force of the U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, no application for review was maintainable inasmuch as under the old Act, viz., U. P. (Temporary) Control of Rent and Eviction Act, 1947 (U. P. Act III of 1947) there was no provision for filing an application for review against an order of allotment. As such the application which had been made by respondent No. 4 on January 4, 1972, could not have been treated to be an 'application or proceeding' within the meaning of Section 43 (2) (b) of the new Act and could not be decided in accordance with the procedure laid down in Section 43 (2) (b); (2) even the appeal which was filed before the District Judge under Section 18 of the new Act was not maintainable; and (3) that the finding of the District Judge that the accommodation in question was neither vacant nor was likely to fall vacant was erroneous.

(3.) SO far as the first submission is concerned it is true that there was no specific provision entitling the Rent Control and Eviction Officer exercising the delegated powers of the District Magistrate to review an order passed by him under Section 7 of the Act. Even so the Rent Control and Eviction Officer was held to be entitled to recall or review an order passed under Section 7 in certain circumstances. Considering the relevant law on the point a Division Bench of this court in Suraj Narain v. District Magistrate (1958 All LJ 283) took the view that no exception can be taken to the general proposition that the power in an administrative officer to pass an order includes the power to reconsider or cancel it and that in exercising this power the officer concerned should use his own free and independent judgment and should not act at the bidding of some one else. It was also decided in the said case that there can be no doubt that ordinarily an order of allotment can be modified or cancelled only if in pursuance of it the allottee has not taken possession. There, however, appears to be no warrant for the assumption that fraud or misrepresentation of the allottee are the only grounds on which the order of allotment can be cancelled or modified after it has been acted upon. Mistake, ignorance of the real facts, collusion, and inadvertence appear to stand on the same footing as fraud or misrepresentation of facts and can be equally good grounds justifying the modification or the cancellation of an order. If fraud or misrepresentation of the allottee himself is a good ground for the reconsideration of the matter, there appears to be no reason why the allottee should be allowed to take advantage of the fraud or misrepresentation of someone else and to maintain the order of allotment in his favour if it was passed on the basis of that fraud or misrepresentation. If the Officer who passed the order finds that the order has been passed by mistake or under misapprehension of facts and should not have been passed at all there is no reason why he should not have the power to correct his own mistake, and to set matters right. The order does not become sacrosanct and immune from reconsideration simply because the allottee managed to get possession on its basis and was not himself guilty of fraud or misrepresentation. In this view of the matter there can be no manner of doubt that the application which respondent No. 4 had made before the Rent Control and Eviction Officer on January 4, 1972, was maintainable on the facts stated therein. Even though the said application had been made on January 4, 1972, it could not be decided till the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, was passed and was pending on the date of the commencement of the said Act. Section 43 (2) (b) of the new Act provides that notwithstanding the repeal of U. P. Act III of 1947 any application or proceeding pending immediately before the commencement of the new Act before the District Magistrate under Section 7 of the old Act or under Rule 6 of the Control of Rent and Eviction Rules, 1949, made under Section 17 of the old Act shall be disposed of by him in accordance with the provisions of Sections 16 and 17 of the new Act.