JUDGMENT

SABYASACHI MUKHARJI, J.:— This application for leave to appeal under Art. 136 of the Constitution arises from the judgment and order of the High Court of Allahabad, dated 27th April, 1988. By the judgment under challenge the Division Bench by majority directed the Addl. City Magistrate or the Officer at present exercising the power of Distt. Magistrate under R. 10(9) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 to issue notice on all the five landlords mentioned in the petition within one week of the filing of the certified copy of the Order, and thereafter to make an Order in accordance with law and in the light of the observations made in the said judgment. The petitioner before the High Court, who is the petitioner herein also, was directed not to be dispossessed until disposal of the matter by the High Court.

2. This application is by the tenant petitioner. The premises in question had five co-owners, namely, Veeresh Saxena, R. C. Saxena, D. C. Saxena, Smt. Shanti Saxena and B. S. Saxena, respondent No. 3. Until January, 1978, Veeresh Saxena was in sole and exclusive actual physical possession of the shop and carried on business in it. In January, 1978 the present petitioner filed allotment application for the shop and he was the sole applicant. On 28-1-1978, Veeresh Saxena vacated the shop and sent intimation of vacancy to the Rent Control Officer under the U. P. Urban Buildings (Regulation of Letting and Eviction) Act, 1972 (hereinafter called the Act). The Rent Control Officer, then, directed him to appear in the allotment proceedings. The Inspector reported that Veeresh Saxena was found to be in possession of the shop, discontinuing the business and was going to let out the shop. On the Inspectors report being pasted on the Notice Board of the Rent Control Officer, neither B. S. Saxena nor the other 3 co-owners filed any objection. Veeresh Saxena filed an affidavit before the Rent Control Officer that he wanted to let out the shop to the petitioner. The 3 other co-owners never objected to the petitioners tenancy on the allotment order throughout the last 10 years. The allotment letter was accordingly passed on 12th February, 1978. The possession was, thereafter, taken up, it was alleged by the petitioner in the special leave petition. The petitioner had alleged that he had invested more than Rs. 2 lakhs in the shop, but B. S. Saxena, who was a non-occupant owner, on or about 25th February, 1978 filed an application under S. 16(5) of the Act, after 25 days of allotment, for review of the Order. It was alleged by the petitioner that the evidence was overwhelmingly in support of the fact that he had taken possession of the premises on or about 4/5th February, 1978. The Rent Controller, however, on the said application of B. S. Saxena allowed the review application and cancelled the allotment order. A revision against the said order was filed before the learned Judge under S. 18 of the Act. The learned Addl. Distt. Judge dismissed the revision. The petitioner, thereafter, filed a writ petition in the High Court of Allahabad.

3. The question arose about the maintainability of the review application under S. 16(5) of the Act. It is upon this point that the matter has been agitated before us. There was a difference of opinion about the maintainability of the review application at the instance of a non-occupant owner and the matter was referred to a Bench of 3 learned Judges and by majority the Division Bench came to the conclusion that such, an application was maintainable. The petitioner herein contends that the High Court was wrong in the view it took on the construction of S. 16(5)(b) of the Act.

4. The relevant provisions of the said subsection read as follow:-

"(5)(a) Where the landlord or any other person claiming to be 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 made