An order of allotment passed without complying with the proviso to sub-section (1) of Section 16 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, is void ab initio and can be set aside by the revisional court.

S. R. Singh, J.

1. Petition on hand stems from the order dated 13-9-91 passed by 8th Addl. District Judge Varanasi, whereby the orders dated 5-4-86 and 15-4-86 passed by Rent Control and Eviction Officer, Varanasi have been set aside in revision preferred under Section 18 of the U. P. Act, 3 of 1972.

2. SHORN of unnecessary details, the facts as they are germane to the controversy involved in the case are that the Rent Control and Eviction Officer, Varanasi, by means of the order, dated 5-4-90, notified the premises at S-8/120-A Radhakunj Khajuri, Varanasi to be vacant under Section 12 (4) of the Act and by means of the subsequent order dated 15-4-1986, the said premises was allotted to the petitioner- Ravindra Pratap Singh. The respondent-landlord, Narain Das Rastogi (since dead and now represented through Legal Representatives - Smt. Rani Devi and others), went up in a revision. The learned Addl. District Judge Varanasi, returned a verdict that the notification of deemed vacancy and allotment of the building in question, were embarked upon without notice to the landlord i.e. without abiding by the procedure prescribed by the Rules framed under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and the proviso to Sec. 16 (1) of the Act. Accordingly, the orders dated 5-4-1986 and 15-4-1986 were set aside by means of the impugned order dated 13-9-1991.

Sri Ravi Kiran, Jain, learned Senior Advocate, appearing for the petitioner began his arguments canvassing that the revision against declaration of vacancy was not legally maintainable and further that the revisional court, while exercising power under Section 18 has no jurisdiction to go behind the order declaring vacancy, actual or deemed, under Section 12 of the Act and therefore, proceeds the submission, learned Addl. District Judge entertained the revision de hors jurisdiction and illegally set aside the order dated 5-4-1986passed by the Rent Control and Eviction Officer, declaring vacancy in respect of premises in question. Sri Shyarn Narain, learned counsel appearing for the respondents emphatically repudiated the submissions made by Sri Jam, adding with emphasis that the power conferred upon the District Magistrate under the proviso to sub-section (1) of Section 16, can be exercised even by the revisional court and by virtue of the said power, the revisional court could indulge into the question whether or not, sub-section (4) of Section 12 of the Act was attracted to the facts of the case.

3. WITH a view to appreciating the submissions made at the bar, it would be useful to notice the related statutory provisions and consider the imprimature of the rulings cited across the bar. Rules 8 and 9 (3) of the Rules being relevant are quoted below : "8. Ascertainment of vacancy (1) The District Magistrate, shall, before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected. (2) The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of such objection. (3) Any objection under sub-rule (2) shall be decided after consideration of any evidence that the objector or any other person concerned may adduce. 9. Notice of Vacancy:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) ******* (2) ******* (3) Immediately after the receipt of intimatio