RAM GOPAL GUPTA Vs. DISTRICT JUDGE KANPUR AND

JUDGEMENT

(1.) IT appears that one Bandi Din was the tenant of the premises in question. He died on November 8, 1971. The Rent Control Officer declared vacancy, and after considering the applications, allotted the accommodation in question to the petitioner, Ram Gopal, on June 15, 1972. The allotment order in Form 'B' was actually issued on June 16, 1972. When the petitioner went to take possession, he was obstructed by repondent No. 4, Kishori Lal, On August 21, 1972, Kishori Lal, respondent No. 4, applied to the Prescribed Authority under S. 16(5) of Act 13 of 1972 of the accommodation and that the allotment order be reviewed. The Prescribed Authority, by an order dated May 11, 1973, rejected the application. Aggrieved, respondent No. 4 filed an appeal under Section 18 of the Act of 1972. The Additional District Judge went into the merits of the matter and allowed the appeal. He held that respondent No. 4 was in occupation of the house in dispute along with his father, Bandi Din, and on the death of Bandi Din, he inherited the tenancy. He was hence in lawful occupation. The house was not vacant. The allotment order was illegal. He by an order dated December 19, 1973. allowed the appeal and cancelled the allotment order in favour of Ram Gopal, Aggrieved, Ram Gopal has come to this Court under Article 226 of the Constitution. Learned counsel for the petitioner submitted that Section 16(5) of the Act of 1972 was not at all applicable and the "authorities below had no jurisdiction to entertain the application filed by respondent No. 4. He further submitted that the finding that the respondent was a lawful occupant was vitiated by a manifest error of law. The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972) came into force on July 15, 1972. Section 16 of the said Act relates to allotment and release of Vacant buildings. Sub-section (5) thereof provides: - " (5) (a) Where the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not in accordance with clause (a) or clause (b), as the case may be, of sub-section (1), the; District Magistrate may review the order; Provided that no application under this clause shall be entertained later than seven days after the eviction of such person. (b) Where the District Magistrate on review under this subsection sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted back into possession of the building, and may for that purpose use or cause to be used such force as may be necessary." Ex facie clause (a) contemplates a case whether the District Magistrate has passed an order made in accordance with clause (a) and (b) of Section 16 (i). An allotment order under clause (a) and (b) of Section 16 (i) could be passed only after the Act had come into _ force. No such order could be passed on June 16, 1972, when the impugned allotment order was in fact issued. This construction gains strength from the provisions of Section 43, which provides for repeal and savings. IT repeals the U.P. (Temporary) Control of. Rent and Eviction Act, J947, under whose Section 7(2) the impugned allotment order was passed. Clause (k) of Section 43(2) provides:- "(k) any order passed by the District Magistrate, before the commencement of this Act under sub-section (2) of Section 7 or under Section 7-A of the old Act against which no revision has been filed, shall- (1) if such order was made more than thirty days before the commencement of this Act, be final; (2) in any other case be subject to an appeal to the District Judge, which may be filed within sixty days from the commencement of this Act, and the decision of the District Magistrate shall be final." In a case wrere the allotment order was made more than thirty days beore July 15, 1972, this provision expressly makes it final. IT will be incongruous that an order professedly made final by Section 43 should, by virtue of Section 16(5) be open to review. If it can be reviewed, the order cannot possibly have any finality. In other cases clause (k) provides for an appeal to the District Judge. Section 16 (5) should not be read so as to make a provision for review by the District Magistrate of the same order which has expressly been made appealable. Section 16 (5) is a general provision it provides for review of any or every allotment order within its ambit Clause (k) of Section 43(2) is a special provision which deals with allotment orders passed under Section 7(2) of the old Act. IT specifically refers to the repealed Act as the Old Act. Section 16(5) does not refer to Section 7(2) of the Old Act but confines itself to an ordeir made under clause (a) or clause (b) of Section 16(1). Clause (k) of Section 43(2), being a special provision, will exclude these orders which fall within its purview, from attracting Section 16(5). Clause (b) of Section 43(2) relates to proceedings pending under Section 7 of the old Act immediately before the commencement of the new Act. IT provides that they will be disposed of in accordance with the provisions of Ss. 16 and 17 of the new Act. This makes it abundantly clear that orders in respect of which no proceeding was actually pending on July 15, 1972, were outside the purview of Section 18. Orders passed, which are spoken of in clause (k) and in respect of which no proceeding was pending, could not hence be governed by Section 16. Learned counsel for the respondent relied on Rameshwar Pra-sad Agarwal v. The 1st Addl. Dist. Judge, Allahabad (A.I.R. 1976 All. 323). IT was held in that case that under Section 43 all pending proceedings under Section 7 of the old Act were to be treated as proceedings under Section 16 or Section 17 of the new Act. That was a case in which proceedings under Section 7 of the old Act were pending on July 15, 1972. The case was clearly governed by clause (b), which specifically brings in Section 16. In the present case no such proceedings were pending. Learned counsel invited my attention to Mahesh Kumar v. 1st Additional District Judge (1977 U.P. Rent Control Cases 247,). In that case also proceedings for setting aside the allotment order were initiated under the old Act and were pending when the new Act came into force. They were governed by clause (b) and not by clause (k). The case is not helpful. In Raghuraj v. State of U P. (1977 U.P. Rent Control Cases 553.) the finding was that proceedings under Section 7 were pending when the new Act came into force. Consequently they were liable to be disposed of in accordance with Section 16. The case is clearly distinguishable. IT is thus clear thet the application for review filed on August 21, 1972, was not maintainable. Since the application itself was not maintainable under Section 16(5), no appeal lay. An appeal did lie under sub-clause (2) of clause (k) of Section 43 (2), but no such appeal was filed. The appeal was actually filed after July 1, 1973, much beyond the 60 days' time for it. In the result, the writ petition succeeds and is allowed. The impugned order of the Addl. District Judge as well as the proceedings in virtue of the application for review dated August 21, 1972, are quashed. The petitioner will be given possession in ac-corance with law. The petitioner would be entitled to costs.