JUDGMENT R.M. Sahai, J. - Little realising that termination of tenancy for non-payment of rent in exercise of his legal right shall land him in litigation which is yet as fresh as it was in 1965. Ayodhya Prasad Tewari, since deceased, served notice under section 106 of Transfer of Property Act on 20-12-1964 on M/s. Central India Radio and Talkie Services through Sri J. Saxon. How did the appellant know Saxon is not clear but he certainly became interested in the premises, a shop, situated at, The Mall Road, Kanpur. In fact anybody having commercial interest would be. May be to achieve this objective he not only rendered ,financial assistance to Saxon but ultimately even purchased his interest on Jan., 1965. And Saxon being obliged to him was willing to vacate the premises in his favour only. What legal effect it had on the right of parties shall be examined later. As the shop was governed by Act III of 1947 the willingness or even consent of Saxon could not have resulted in allotment or possession of appellant therefore he moved an application on 16-1- 1965 for allotment of the shop before Rent Control & Eviction Officer, (hereinafter referred to as R. C. & E. 0.) as the shop was likely to fall vacant. On this the inspectorial movement in the office was swift. May be little abnormal. But neither illegal nor immoral. 17th was Sunday. And on 18th when the Inspector made spot inquiry Saxon informed him that he had already intimated R. C. & E. O. that as he has suffered loss in business he was intending to close it. He also informed that he was willing to vacate, `provided it was allotted to the appellant'. The Inspector submitted his report on the same day and apart from intimating likely vacancy he made a recommendation in favour of appellant. In doing so he definitely went beyond the inquiry. The authorities however, do not appear to have taken any notice of it or acted upon it. But the report of likely vacancy was neither incorrect nor inaccurate. Even the appellate court found that there was a vacancy. 2. After ascertainment of vacancy the second phase, namely, allotment of the premises in the office of District Magistrate was set in motion by notifying vacancy and inviting applications up to 23rd Jan. 1965. No one turned up. But the report of likely vacancy was neither incorrect nor inaccurate. Even the appellate court found that there was a vacancy. 2. After ascertainment of vacancy the second phase, namely, allotment of the premises in the office of District Magistrate was set in motion by notifying vacancy and inviting applications up to 23rd Jan. 1965. No one turned up. It surprised the Additional District Magistrate (hereinafter referred to as A.D.M.) obviously because the shop is located in the busiest business centre of Kanpur. He expressed it in the report to District Magistrate (hereinafter referred to as D.M.) and suggested that the premises be allotted to Air India who were in search of accommodation probably on Mall Road. This was approved by D.M. and an order was passed on 27-1-1965 to contact District Sales Manager, Air India. Efforts went on thereafter, the local manager was contacted, he expressed his willingness also but when asked to move formal application he refused. Then the A.D.M. suggested notification of vacancy in, newspapers to ensure wide publicity which was done through assistance of District Information Officer on 11th Feb. 1965 inviting applications till 20-2-1965. Unfortunately the press note which appeared in National Harald on 16th Feb. was wholly unsatisfactory. Nobody could have followed anything form it. Nor any application was filed. But when the file was submitted to D.M. he again insisted that Manager of Air India be persuaded. These efforts finally failed on 8th March, 1965 and the District Magistrate allotted the premises to appellant on 18th March, 1965 who obtained possession, on 26th March, 1965 in pursuance of formal order issued by R.C. & E.O. on 23rd of March, 1965. 3. With allotment and taking of possession the second phase came to an end. On 30-3-1965 the landlord filed an application before District Magistrate in the nature of complaint against Saxon. It was stated that Saxon was under heavy liability and was trying to transfer the tenancy to some other person in lieu of handsome amount. Against such step he had warned Saxon but despite his warning he now wants to transfer the said tenancy on the same old rent when the current prevailing rent of shop was near about Rs. 500/- per month. The landlord further expressed his apprehension as he saw a fresh sign-board hanging on the shop. He complained that he wanted the shop to be released in his favour. 500/- per month. The landlord further expressed his apprehension as he saw a fresh sign-board hanging on the shop. He complained that he wanted the shop to be released in his favour. Therefore, he requested the D.M. not to allow Saxon to take law in his own hand. This application set in motion, the third phase which led to cancellation of allotment and release of accommodation in favour of respondent. On 3rd April, 1965, the D.M. stayed implementation of the allotment order and directed R.C. & E.O. to make personal enquiries regarding the person, who gave the intimation about vacancy'. `What enquiry was made to check up vacancy', `if owner or the tenant did not give the intimation', what action was taken to publicise the vacancy, 'who was the inspector who made the enquiries,' and `was he permanent or temporary'. In the end it was observed, I understand, with the connivance of the previous tenant and after paying heavy premium the only candidate in this case managed to get the allotment order. On 5th April, 1965 R.C. & E.O. submitted his report and suggested that as allottee has entered into possession the landlord, the allottee and the previous tenant may be called and heard and the matter be decided on merits. On 8th April, 1965 the landlord filed application for release and the District Magistrate without issuing notices or hearing any of the parties, cancelled the allotment order, ex parte because he was acting administratively. Pursuant to this order he directed R.C. & E.O. to get possession restored and release accommodation in favour of landlord on 15- 4-1965. Being faced with one after the other order passed ex parte, without hearing, the appellant had no way out except to file the present suit for perpetual injunction challenging the orders cancelling the allotment order directing R.C. & E.O. to get the possession restored and release the accommodation in favour of landlord. The trial court decreed the suit. It repelled the contention that the suit was barred by S. 16 of Act III of 1947 as the order cancelling allotment was without jurisdiction. On merits it was held that allotment order was not vitiated by fraud, collusion and concealment or misrepresentation. In appeal the finding on jurisdiction was not set aside. In fact it does not appear to have been raised even. On merits it was held that allotment order was not vitiated by fraud, collusion and concealment or misrepresentation. In appeal the finding on jurisdiction was not set aside. In fact it does not appear to have been raised even. The appellate Court held that on the date when allotment order was made i.e. 18th March, 1965 vacancy of the shop did exist, but he held the allotment order to be vitiated by fraud, collusion, concealment, mis- representation etc. It did not find any merit in the argument of the appellant that no specific allegation in respect of fraud was raised in the written statement. It was held that it was not necessary t ) give details or particulars of fraud although a perusal of the pleadings indicated it beyond doubt that it was `littered with' allegations of fraud. The appellate Court found that `in isolation' every circumstance or fact may look innocent but their cumulative effect may be sufficient to draw inference of collusion etc. The appellate Court based the finding on fraud etc. on incorrect address of the landlord in the application for allotment moved by the appellant, absence of intimation of vacancy on 16-1-1965, visiting of R.C. & E.O. Office by appellant several times before allotment, taking delivery of allotment order by hand, `ugly haste' in enquiry and report recommending allotment in favour of appellant and Saxon's willingness to vacate premises in favour of appellant only. 4. Before considering whether the finding of appellate court that allotment order was obtained by fraud, collusion, concealment or mis-representation, certain legal objections raised by learned counsel for respondent maintainability of the suit and jurisdiction may be disposed of. Learned counsel urged that S. 16 of U. P. Act III of 1947 expressly barred the jurisdiction of Civil Court in respect of any order passed under the Act. According to him the order cancelling the allotment or releasing the premises in favour of respondent was an order made under the, Act therefore, the suit filed in Civil Court' was not maintainable. S. 16 read as under : "No order made under this Act by the State Government or the District Magistrate shall be called in any Court." It, therefore, expressly barred jurisdiction of Civil Court in respect of any order passed under the Act. S. 16 read as under : "No order made under this Act by the State Government or the District Magistrate shall be called in any Court." It, therefore, expressly barred jurisdiction of Civil Court in respect of any order passed under the Act. The question however, is whether the orders which are under challenge can be said to be orders passed under the Act and even if they were, can they be considered to be such which could be considered beyond the pale of Civil Court's jurisdiction. Controversy on exclusion of Civil Court's jurisdiction arose before the Supreme Court in Dhulia Bhai v. State of M.P., (AIR 1969 S C 78). At page 89, the Hon'ble Court after reviewing diverse view called certain principles. One of the principles laid down was : "Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." From this it is clear that the jurisdiction or otherwise of Civil Court depends on whether the order under challenge was in conformity with fundamental principles of judicial procedure. It is admitted that order passed by District Magistrate cancelling allotment was ex parte. This was despite report of R.C. & E.O. that appellant had entered into possession and the order should be passed after hearing him. Prima facie the order of District Magistrate was contrary to the principles of natural justice, therefore, the order was within the mischief of principles laid down by Hon'ble Court. Whether Civil Court has jurisdiction to declare such an order nullity in collateral proceedings shall be considered later. But it certainly did not oust the jurisdiction of Civil Court. Presumably, it was for this reason that the finding of the trial Court was not challenged in appeal. 5. The next legal objection was that on facts disclosed in plaint no decree of permanent injunction could be granted. Learned counsel maintained that the appellant should have filed a suit for declaration. Presumably, it was for this reason that the finding of the trial Court was not challenged in appeal. 5. The next legal objection was that on facts disclosed in plaint no decree of permanent injunction could be granted. Learned counsel maintained that the appellant should have filed a suit for declaration. According to him the appellant could not be permitted to adopt the subterfuge of seeking declaration in the garb of injunction. The controversy, however has to be decided on pith and substance of the, allegations made in the plaint. (See Mohd. Usman Khan v. Mohd. Ghani, AIR 1980 All. 89 . The primary relief sought is of injunction. Mere declaration would have been of no consequence. On the allegations relief of declaration is ancillary only. 6. It was then urged that under S. 38 of the Specific Relief Act there must be a breach of Nigation which had been defined in sub-cl. (2) of S. 2 of the Act as including `every duty enforceable by law'. Learned counsel urged that as the suit did not contain any pleading on sub-secs. (2) and (3) of S. 38. the suit was liable to be dismissed. The argument does not appear to have any substance. The appellant has filed the suit and based his claim, on allotment order which was cancelled ex parte by the D.M. If order allotting premises in favour of appellant is found to be valid then its cancellation, release of premises etc. were acts without authority and there arose an obligation in favour of appellant which he was entitled to enforce by suit for permanent injunction. It would also be covered under sub-cl. (3) of the S. 38 as the respondent invaded or threatened to invade the appellant's right to, or enjoyment of property. 7. It was also urged that appellant was prevented from seeking assistance of Court on principle of part delicto. He urged that appellant was in possession in pursuance of an order which was vitiated by fraud and collusion, therefore, he was not entitled to approach a Court of law to get his grievance redressed. According to learned counsel, fraud, collusion, misrepresentation etc. are various shades of the same thing, namely whether consent obtained was free and if it is found in negative then the order should be taken to be vitiated. According to learned counsel, fraud, collusion, misrepresentation etc. are various shades of the same thing, namely whether consent obtained was free and if it is found in negative then the order should be taken to be vitiated. And the party who is responsible for it should not be permitted to enforce the illegal act by way of suit. The argument proceeds on assumption that appellant was guilty of fraud. For applicability of principle of part delicto fraudulent act must arise out of illegal act of both and then the question arises whether the party who is guilty of fraud fails because he comes to the Court first. Even where such situation arises it was held in Immani Appa Rao v. G. Rama Linga Murthi, (AIR 1962 S C 370), "therefore we are inclined to hold that the paramount consideration of public interest requires that the plea of fraud should be allowed to be raised and tried and if it is upheld, the estate should be allowed to remain where it rests". The appellant is not enforcing any cause of action which arose out of fraudulent plan to which he and respondent or D.M. who passed the order allotting or cancelling that order were party or to quote the words of Immani Appa Rao's case (Supra) were confederates in fraud. 8. It was also urged that the order of D.M. passed in exercise of powers conferred under the Act could be challenged under that Act only and not by way of civil suit. According to learned counsel if the order was bad it could not be set aside as it was utmost an error in exercise of jurisdiction and not inherent lack of jurisdiction. For highlighting the difference in the two the learned counsel placed reliance on well known dictum of Sir Ashutosh Mukerji in H. Nath Roy v. R.C. Barna Sarana, (AIR 1921 Cal. 34 (36)) (F B). Reliance was placed on Gokaraju Rangaraju v. State of A.P. (AIR 1981 S C 1473), Ramji Bas v. Trilok Chand. (AIR 1971 S C 2361), Anisminic Ltd. v. Foreign Compensation Commissioner (1969) 1 All E R 208) and Anisminic Ltd. v. F.C. Commissioner ((1967) 3 All E R 986). 34 (36)) (F B). Reliance was placed on Gokaraju Rangaraju v. State of A.P. (AIR 1981 S C 1473), Ramji Bas v. Trilok Chand. (AIR 1971 S C 2361), Anisminic Ltd. v. Foreign Compensation Commissioner (1969) 1 All E R 208) and Anisminic Ltd. v. F.C. Commissioner ((1967) 3 All E R 986). The former was placed in extenso and attention was drawn to paragraphs G and J at page 225 G at 228, F and G at page 229, E at 232 and F at 233. Reliance was placed on Judicial Review of Administrative Act by De Smith lVth Edition p. 110 and Wades Administrative Law 14th Edition (ivth) p. 28. The learned counsel urged that violation of principle of natural justice and error apparent on the face of records may furnish material for issuing a writ in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India but they cannot be ground on which a Civil Court can declare an order to be invalid or grant an injunction on it. 9. An order passed under an Act may be challenged in appellate or revisional jurisdiction for testing legality, correctness or propriety of it. But an order without jurisdiction or an order based on erroneous assumption of facts as a consequence of which jurisdiction is, although it is lacking, can be challenged by way of suit. In (1969) 1 All E R 208 (233) it was observed by Lord Pearce, J., "Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice, or it may ask itself the wrong questions: or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction." The order of the D.M. examined on this touchstone was without jurisdiction. It was against fair play and natural justice to pass an order against a person who entered into possession on assumption that the order was obtained by fraud without affording any opportunity to appellant to prove otherwise. Thereby it would step outside its jurisdiction." The order of the D.M. examined on this touchstone was without jurisdiction. It was against fair play and natural justice to pass an order against a person who entered into possession on assumption that the order was obtained by fraud without affording any opportunity to appellant to prove otherwise. The threatened invasion on strength of such an order could always be challenged. It was not an `error in exercise of jurisdiction' as was in Ramji Das's case, (AIR 1971 S C 2361) (supra). The argument therefore, that the order cancelling allotment could not be challenged in collateral proceedings cannot be accepted, as an order passed in violation of principles of natural justice is an order passed without jurisdiction. Such an order is liable to challenge both in writ jurisdiction and before Civil Courts. 10. Having cleared various legal obstacles which the learned counsel attempted to create to avoid any examination of the finding recorded by appellate court on question of fraud, collusion etc. it may now be seen If the finding that allotment order was obtained by fraud can be said to be well founded and can be sustained. It cannot be disputed as has been found by appellate court that fraud has to be inferred from the circumstances of the i case and proved facts. But fraud, mis- representation, collusion and mistake are different concepts in law. They have been defined in Sections 17 to 20 of the Contract Act. They do not overlap except that their effect may be common. Presence of any one of them may render the agreement void. When applied to judicial proceedings it may make the order unenforceable or liable to be ignored. But uniformity in result does not render them one and the same. Each of them arises in different set of circumstances and in order to record a finding that any one or all of them is established there has to be different facts. The circumstances on which the finding has been recorded have been pointed out above. They may now be examined one by one to find out if any of them individually or collectively could result in the finding that the order was vitiated by fraud, collusion mis-representation etc. It is surprising that appellate authority has recorded what may be termed, as cumulative finding in this regard. They may now be examined one by one to find out if any of them individually or collectively could result in the finding that the order was vitiated by fraud, collusion mis-representation etc. It is surprising that appellate authority has recorded what may be termed, as cumulative finding in this regard. That it has committed an error of law in recording such finding cannot admit of any doubt. 11. Coming to the various circumstances from which inference of fraud and collusion have been raised the mention or omission to mention the name of landlord in the application for allotment could not lead to the conclusion that it was fraudulent or collusive. This is on the assumption that address was not given at the time of filing of application. Although appellant's case has been that in the application as prepared the address was not mentioned but this was done after ascertaining prior to filing of application. In any case assuming the finding of appellate Court to be correct how did it result in any mis-representation because of which the D.M. allotted the premises to the appellant? At least the name and address was there when D.M. passed the order. There is no finding that it was interpolated after the order was passed. 12. It was then found that appellant had visited the Rent Control Office several times before the allotment. He took hand delivery of the allotment order. It is thus evident that he had approaches in Rent Control Office'. These observations belie complete ignorance of working in the offices. Any person anxious to get a house or shop by allotment in big cities has not only to visit these offices a number of times but every day, may be morning or evening. Moreover, was there anything inherently wrong in it? Did the appellant act fraudulently in visiting the R.C. & E.O's. office a number of times? Was taking delivery of allotment order by hand contrary to any rule or in violation of any official or moral principle, could these things establish, `approaches of appellant in the office of Rent Control Officer? Going in the office regularly for any work may make a person familiar with persons in the office but to infer from it, that the person has approaches or the' appellant in such circumstances obtained order by means which were otherwise is a little too much. Going in the office regularly for any work may make a person familiar with persons in the office but to infer from it, that the person has approaches or the' appellant in such circumstances obtained order by means which were otherwise is a little too much. There appears to be no basis for it. 13. The appellate court further saw ugly haste' in the enquiry made by the Inspector. Why because movement was fast. Assuming that enquiry was made as appellant was interested then does it by itself render the enquiry fraudulent or collusive? Who would not be interested in getting the shop allotted situated at Mall Road, Kanpur? How the anxiety of the appellant to get the shop allotted and to request the Inspector to submit report at the earliest could result in any collusion or mis-representation? The basis of allotment order is vacancy or likely vacancy of a premises. If the shop was likely to fall vacant and the appellant approached the Inspector to submit an early report how could inference be drawn that the movement of Inspector was for reasons otherwise. Could the enquiry made on 18-1-1965 i.e. two days after filing of application stand on a different footing than if the enquiry would have been made, say after 15 days? In fact after coming to know of likely vacancy the Inspector should normally have moved on his own at the earliest but in deteriorating efficiency in our offices if the Inspector moves only because the request is made by a person interested then it did not render the enquiry in `ugly haste' or in `hateful hurry'. For enquiring likely vacancy the Inspector was not required to contact the landlord. If he would have, probably that would have been better but his failure to do so did not establish that the Inspector was in collusion with the appellant even if his movement was generated by appellant. Letting or non-letting of an accommodation under the Act is the jurisdiction of District Magistrate. Landlord comes in the picture only if he occupies a portion of the premises. Failure on the part of Inspector to contact the landlord, therefore, could not give rise to collusion between the Inspector and appellant nor could it establish that there was a pact between appellant and Saxon, under which Saxon agreed to oblige to vacate it in favour of appellant. Failure on the part of Inspector to contact the landlord, therefore, could not give rise to collusion between the Inspector and appellant nor could it establish that there was a pact between appellant and Saxon, under which Saxon agreed to oblige to vacate it in favour of appellant. Once Sexon intimated that the shop was likely to fall vacant the jurisdiction to allot arose. He might have refused to oblige anyone and to vacate the shop only if it was allotted to the appellant. May be for certain consideration or as alleged by respondent for a hand some'pugree' which has become an order of the day in commercial towns where there is dearth of shops in good locality. But this could not result in obtaining collusive order from the D.M. Authorities have not acted on the report of the Inspector that Saxon was willing to vacate it in favour of appellant only : Then the appellate court found that the local Sales Manager of Air India did not apply for allotment of the premises as Saxon was willing to vacate it only in favour of appellant. This was also taken as a circumstance to conclude that appellant was in collusion with Saxon. As pointed out earlier whatever relation the appellant might have developed with Saxon this could' not render the order of D.M. collusive or fraudulent. The appellate Court further found that publication in newspaper was wholly unsatisfactory. May be so but how the appellant could be responsible for it? In any case there was no procedure provided under the Act or Rules for notifying the vacancy through papers. It is apparent that the D.M. did not act in ignorance of any fact. There is no finding that facts on which he passed the order were untrue. Rather, the fact of vacancy was found to be true. The D.M. was all the time aware that no one was willing to make an application for the premises and that A.D.M. had not only expressed his apprehension but suggested for allotment to Air India and then publication in newspapers. Then D.W. 5 admitted that on Mall Road there was common talk, `Charcha' regarding vacancy of the shop in dispute. It has not been found that appellant suggested any fact to the District Magistrate which he believed not to be true. Then D.W. 5 admitted that on Mall Road there was common talk, `Charcha' regarding vacancy of the shop in dispute. It has not been found that appellant suggested any fact to the District Magistrate which he believed not to be true. Nor any material has been brought on record to prove concealment of a fact of which appellant had knowledge or belief. On the material on record no finding of fraud could be recorded. Similarly it is not a case where it could be held that appellant misrepresented by asserting any fact which was not warranted by the information which he had. Nor could it be held that the report of the Inspector, which was the basis of vacancy and the allotment, was based on information which were incorrect. As pointed out above the fact of vacancy has been found to be correct not only by trial Court but by appellate court as well. After intimating vacancy the Inspector had no control over what happened thereafter. Even fact of notifying vacancy is not disputed but its effect has been attempted to be minimised because of unsatisfactory publication in newspaper. Then the basic fact that large number of applicants were not coming forward to apply for allotment was known to District Magistrate. He did not act on information which was concealed from him. In a case where the entire fact is known to the authority and the order is passed on it, it is difficult to say that such an order can be called to be fraudulent or collusive. The finding of appellate court that the order was obtained by fraudulent means, collusive ness or mis- representation or concealment cannot he upheld. 14. It may now be considered if order dated 9th April, 1965 cancelling allotment order in favour of appellant can be upheld. Admittedly it was ex parte and without affording any opportunity to appellant to show that allotment order passed on 26th March. was in accordance with law. While considering legal objection raised by learned counsel for respondent it has been seen that such an order suffers from error of jurisdiction. It was, however, urged by the learned counsel for respondent that the order being in exercise of administrative power it could not be held to be invalid or beyond jurisdiction only because it was passed without issuing any notice to appellant. It was, however, urged by the learned counsel for respondent that the order being in exercise of administrative power it could not be held to be invalid or beyond jurisdiction only because it was passed without issuing any notice to appellant. Reliance was, placed on R.S. Jog v. R.C. & E.O. (1964 LJ (F B) 2012(?). and Prabhu Mal v. State of U. P. (1975 All L R 659) and it was urged that the right of landlord to get the allotment order cancelled or get the premises released is not affected by allotment order and even allottee's entering into possession does not take away this power. The principle was extended further and it was urged that if observations in these decisions are correct then the appellant could not claim right of hearing in cancellation proceedings nor could he challenge it on the ground that it was ex parte. The only decision which touches the controversy is Prabhu Mals' case. Even in this it was laid down that allottee should have entered in possession surreptitiously. In A.R. Ansari v. S. Mahmmud, (1971 All L J 1042) it was held that an authority passing an allotment order has inherent jurisdiction to recall it but that order must be passed after giving notice and hearing the allottee. An order passed in violation of this principle is without jurisdiction. In C.M.N. No. 5213, Gokul Chand Sarraf v. R.C. & E.O. decided on 1-3-1966 an allotment order was cancelled ex parte on representation of landlord that premises had already been released in his favour and the order was obtained by misrepresentation of fact. It was held by Hon'ble R.S. Pathak, J. as he then was,'it was necessary in the interest of justice and fair play that the petitioner should have been heard before the allotment order was cancelled.' 15. Even on merits the order of D.M. cannot be maintained. From 25-1-1965 when the A.D.M. brought to the notice of D.M. that no one else has applied for the premises and premises be allotted to Air India, till 18-3- 1965 when the allotment order was made every proceedings took place under the direction of D.M. He did not smell any rat in it. But suddenly on 30-3-1965 when a complaint was received from Ayodhya Prasad Tewari, everything became clear to him. But suddenly on 30-3-1965 when a complaint was received from Ayodhya Prasad Tewari, everything became clear to him. He not only called for a report, and stayed the proceedings but went to the length of making enquiry whether the inspector who made the enquiries was permanent or temporary and then probably terminated his services, as well. He did not have the patience to wait for the report of R.C. & E.O. on a complaint which according to D.W. 6 was handed over in office but also formed an opinion that allotment order was obtained, with the connivance of the previous tenant after paying heavy premium. From where did he get this information? How did this dawn upon him because Karuna Shanker Tewari D.W. 6 son of Aydhoya Prasad Tewari admitted that he or his father never met the D.M. He also stated that he was told by his father that the complaint was handed over by him in the office of D.M. and not personally to him.' What could be other possible source from which the information percolated to D.M. about heavy premium and connivance? At least there is nothing on record. In fact from his order it appears he had made up his mind on 30-3-1965 the moment the complaint was received about the action he proposed to take. The principle of fair play and natural justice was thrown to the winds. To quote his own words. "I have also made confidential enquiries into the matters and since these are not judicial proceedings I am entitled to utilise the information so gathered in dealing with this matter administratively.' The entire allotment record was before Courts below and certified ,Copplies of each document were filed but there does not appear to be any whisper or note or anything to indicate what confidential enquiry was made by D.M. If he was drawing on his personal knowledge even that should have been placed on record. There is nothing to indicate what was that confidential enquiry which made him adopt such an extraordinary procedure of passing an order against a person who had entered into possession without hearing him and ignoring the report of R.C. & E.O. However high an authority may be and whatsoever the nature of power he may exercise, administrative, judicial or quasi-judicial he cannot act arbitrarily. That which is contrary to the principles of natural justice and basic requirement of hearing a person against whom an order iv passed is arbitrary. It cannot be countenanced in a court of law. Even where orders are required to be passed on subjective consideration it has to be based on material on record (See Baruim Chemical Ltd. v. Company Law 'Board, (AIR 1967 S C 295). Administrative exercise of power is not an umbrella for arbitrariness. 16. An attempt was made to argue that the D.M. was a relation of appellant and the unusual manner in which the order was cancelled was due to this reason. To support this, certified copy of respondents' statement in another suit paper No. (Ext.A-33) was filed. Respondent also filed another certified copy of the same statement. There is conflict in the two. But it is not necessary to decide this controversy as the order of D.M. has not been found to be in accordance with law irrespective of the consideration whether he was related to respondent or not. It may however, be observed that D.W. 6 did not act fairly in casting aspersion on A.D.M. in his statement only because he happened to be of same caste as appellant because from what has been narrated above it cannot be disputed that A.D.M. always placed the record straight before D.M. 17. Learned counsel for respondent urged that there was no bar in releasing an accommodation even if allottee was in possession. Reliance was placed on Masood Ahmad v. R.C. & E.O., (AIR 1972 S C 631). Sajjan Singh v. Rameshwar Sahai ( AIR 1972 All 354 ) and Mangal Sen v. R.C. & E.O., (1972 All L J 587). The jurisdiction to release even if allottee is in possession cannot and has not been disputed. But it could not be done without intimation to allottee. He acquires right to remain in possession under the Act. That could be taken away in accordance with law and not behind his back in ex parte proceedings. 18. For the reasons stated above the decree and order passed by the appellate Court setting aside the order and decree of trial Court and dismissing the suit is set aside. The plaintiffs suit shall now stand decreed. He shall be entitled to costs.