ORDER K.C. Agrawal, J. - This writ petition is directed against an order of the Third Additional District Judge, Nainital, dated 11th March, 1978, dismissing the revision filed by the petitioner under Section 18 of U.P. Act No. XIII of 1972. 2. The dispute in this case is with respect to a flat in the second floor of the building known as "Uniyal Lodge", Talli Tal, Naini Tal. Uniyal Lodge previously belonged to one B.D. Uniyal. By a sale deed dated 19.2.1975, B.D. Uniyal sold the flat in dispute to Surendra Kumar Bhatia, the petitioner. It however, appears that an application for its allotment was filed by Jagdish Chandra Sharma, respondent No. 3, on 11th July, 1975. On this application, the District Supply Officer asked the Inspector to submit a report about the facts stated in that application. The Inspector inspected the house on 23.7.1975 and submitted a report thereafter on 26.7.1975 to the effect that one B.D. Sharma was previously living in the said flat and that he left the same in March 1975. He also reported that the house was locked. On the basis of the said report, the Rent Control and Eviction Officer declared the flat as vacant and, thereafter, allotted the same to Jagdish Chandra Sharma, respondent No. 3, on 31.10.1975. 3. On 10.11.1975, B. D. Uniyal, the previous owner of the house, moved an application before the Rent Control and Eviction Officer that Uniyal lodge, Talli Tal, was constructed by him in the year 1967, and that it did not come within the purview of U.P. Act No. XIII of 1972. A report was called by the Rent Control and Eviction Officer from the Inspector. On 13.11 1975, S.K. Bhatia also filed an application for cancellation of the allotment order. A report was called from the Rent Control Inspector on this application as well. The Rent Control and Eviction Officer allowed the application of S.K. Bhatia and set aside the allotment order. Against the said order, Jagdish Chandra Sharma filed an appeal to the District Judge. The appeal was allowed on 7.10.1977, and the case was remanded to the District Supply Officer to decide it in the light of the observations made by him in his judgment. 4. Against the said order, Jagdish Chandra Sharma filed an appeal to the District Judge. The appeal was allowed on 7.10.1977, and the case was remanded to the District Supply Officer to decide it in the light of the observations made by him in his judgment. 4. After remand, the Rent Control and Eviction Officer found that the allotment order made in favour of the respondent No. 3 was made in accordance with the provisions of Clause (a) of Sub-Section (1) of Section 16, and rejected the application for its cancellation. Aggrieved by the said order, the petitioner preferred a revision before the District Judge. The revision was transferred to the third Additional District Judge, who by means of the impugned order dated 11th March, 1978, held that the grounds for setting aside the allotment order were not made out and the same was passed in accordance with Section 16 of the Act. Feeling aggrieved. S.K. Bhatia, the landlord, has filed the present writ petition. 4A. Two contentions were raised by the learned counsel for the petitioner. The first was that as the flat in question had been constructed in 1967, and since the period of ten years had not expired on 31.10.1975, when the allotment order was made by the Rent Control and Eviction Officer allotting the premises to Jagdish Chandra Sharma, the order passed was without jurisdiction. Elaborating the submission, the learned counsel urged that U.P. Act No. XIII of 1972 applied to the constructions after the expiry of ten years when it was constructed, and as in the present case the said period had not expired, the Rent Control and Eviction Officer should not have passed any allotment order in respect of it in favour of Jagdish Chandra Sharma. 5. I am not inclined to accept the submission for two reasons. The first reason was that the Rent Control and Eviction Officer and the learned Additional District Judge found as a fact that the house was constructed before 1967, and that the case of the petitioner that it was constructed in the year 1967 was not reliable. This finding was arrived at by the Rent Control and Eviction Officer and the Additional District Judge on the evidence adduced by the parties. The question was essentially one of fact. This finding was arrived at by the Rent Control and Eviction Officer and the Additional District Judge on the evidence adduced by the parties. The question was essentially one of fact. It is not open to me sitting in writ jurisdiction to re-appraise the evidence which the learned counsel for the petitioner wanted me to do, and to record my own finding thereon. The finding of fact, even if erroneous, is binding on me. This Court has no jurisdiction to correct an error of fact. The second reason was that since now the period of ten years has, admittedly, expired, and even if I were to accept the submission of the petitioner's counsel the provisions of U.P. Act. No. XIII of 1972 would be applicable to the premises in dispute. In this view of the matter, I am not inclined to set aside the order of the two courts below on this ground. 6. The second submission which has impressed me was that in the absence of any finding about the vacancy on 31-10-1975, the allotment order made was invalid. In this connection, it may be pointed out that the case of the respondent No. 3 Jagdish Chandra Sharma were that the premises in dispute had been let out to B. D. Sharma by the previous owner B.D. Uniyal, and B.D. Sharma vacated the premises in March 1975. After B.D. Sharma vacated tie flat, Surendra Kumar Bhatia entered into possession without obtaining any order of release. It was urged that as possession of Surendra Kumar Bhatia was unauthorised, the same could not be recognised in law. On this basis the submission advanced on behalf of the respondent No. 3 was that as the house was vacant in October 1975, the allotment order passed could not be set aside on that ground. Controverting the submission made on behalf of respondent No. 3, the learned counsel for the petitioner pointed out that B.D. Sharma was not a tenant of B.D. Uniyal. He was living as a guest in the premises in dispute, and even if it be assumed that B.D. Sharma left the house in March 1975, that would not create a vacancy. A guest is only an agent of the landlord and the possession of a guest would be deemed to be possession of the owner of the landlord. 7. He was living as a guest in the premises in dispute, and even if it be assumed that B.D. Sharma left the house in March 1975, that would not create a vacancy. A guest is only an agent of the landlord and the possession of a guest would be deemed to be possession of the owner of the landlord. 7. The above argument raises a controversy about the status in which B.D. Sharma was occupying the premises in dispute. In this connection, strong reliance was placed by the learned counsel appearing for the respondent No. 3 on the two reports of the Rent Control Inspector dated 26-7-1975 and 11-11-1975. In these reports, the Inspector mentioned that he was informed by the persons present at the time of inspection that B.D. Sharma was living in the portion in dispute as a tenant. Relying on these reports, the learned counsel contended that the position of B.D. Sharma being that of a tenant, the allotment order passed was invalid. It appears difficult to me to accept the reports of the Rent Control Inspector and to decide this question on the basis of the same. Under Rule 8 of the Rules framed under U.P. Act. No. XIII of 1972, and Inspector is deputed for a purpose to make an enquiry about the factual state of vacancy of the premises in dispute. The report submitted by the Inspector could not determine the question of vacancy. This had to be done by the Rent Control Officer himself. In the instant case, the Rent Control and Eviction Officer declared the vacancy on the basis of the said reports and made the order of allotment in favour of respondent No. 3. Even when the application was made by S.K. Bhatia for setting aside the allotment order on the ground that the house was not vacant, the Rent Control and Eviction Officer did not examine the question of vacancy and rejected the application. The learned Additional District Judge did not address himself to the point in issue and give a clear cut finding on the same. 8. Order of allotment cannot be made in respect of a premises unless a vacancy is found. In order, therefore, to sustain the order dated 31st October, 1975 it was essential for the authorities to record a finding thereon. 8. Order of allotment cannot be made in respect of a premises unless a vacancy is found. In order, therefore, to sustain the order dated 31st October, 1975 it was essential for the authorities to record a finding thereon. Under clause (a) of Sub-section (1) of Section 16 of the Act, an allotment could be made only when there is a vacancy. Under Sub-section (5) of Section 16, the authority is required to find whether an order of allotment was passed in accordance with clause (a) of Section 16(1). Accordingly, an application filed under Sub-section (5) of Section 16 cannot be properly decided without deciding the question of vacancy. In Smt. Munni Devi v. Gokal Chand, 1969 R.C.J. 972. the Supreme Court had an occasion to deal with a similar question which arose for decision in a case arising out of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act. The Supreme Court Observed : "An order of allotment can be passed only on the existence of vacancy and if there is no finding with regard to the vacancy, the order of allotment would be without jurisdiction." 9. It is true that the petitioner did not file affidavits, apart from the two letters, to show that the status of B.D. Sharma was of a guest and not of a tenant. But on the facts and in the circumstances of the present case it appears appropriate that the petitioner as well as the respondent No. 3 be given a fresh opportunity to adduce evidence on the said controversy. Accordingly, the order of the learned Additional District Judge is liable to be set aside on the question of vacancy. As I have affirmed the finding given by the Additional District Judge that the house in dispute was constructed before 1967, it would not be necessary for him to go into the said question. He shall confine himself only on the question of vacancy. 10. In the result, the writ petition succeeds in part and is partly allowed. The judgment of the Additional District Judge is quashed to the extant indicated above. The case is sent back to him for deciding the question of vacancy afresh. The parties shall bear their own costs. As the matter is hanging for the last three years, it appears appropriate to direct the District Judge to decide the appeal within a period of three months.