ORDER B.N. Sapru, J. - This writ petition has been filed by Shyam Dass to whom a shop belonging to Jai Deo Sharma situate at Chauraha Jagannath, Station Road, Najibabad, District Bijnor was allotted under an allotment order dated 5-7-1976. 2. One Munnu Halwai was a tenant of the aforesaid shop Jai Deo Sharma who is the landlord, filed a suit for ejectment against Munnu Halwai. The suit was pending when the allotment proceedings were initiated and an order was made. According to the petitioner, Munnu Halwai vacated the shop sometime in the year 1975 and handed over possession to the landlord Jai Deo Sharma. The petitioner's case is that he made an application for allotment of the shop on the ground that it was vacant on 7-1-1976. On this application by an order dated 18-6-1976 a report was called by the Rent Control Inspector. The Rent Control Inspector visited the shop and submitted his report dated 24-6-1976 stating that Munnu Halwai had vacated the shop. It was also mentioned in the report that at the time of inspection there was a lock on the shop which had not been closed. 3. After the receipt of the report of the Rent Control Inspector, a vacancy was notified on the notice board on 25-6-1976. A notice was sent to the landlord intimating the vacancy and was directed to be served through the process server. The case of the petitioner is that Jai Deo Sharma though he was present in the house did not accept the notice and his family members also refused to do so. In the circumstances, the notice was pasted on the notice board. A report to the effect was submitted by the process server. 4. The petitioner urges that the notices must be deemed to have been duly served in accordance with R. 28 of the Rules framed under the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act. 1972, (hereinafter referred to as `the Act'). 5. The matter was then taken up on 3-7-1976 and one Varshney Kumar also made an application for allotment. The District Magistrate by an order dated 5-7-1976 made an allotment order. 6. On 7-7-1976 an application was filed by Jai Deo Sharma under S. 16 (5) of the Act praying that the allotment order be cancelled. 5. The matter was then taken up on 3-7-1976 and one Varshney Kumar also made an application for allotment. The District Magistrate by an order dated 5-7-1976 made an allotment order. 6. On 7-7-1976 an application was filed by Jai Deo Sharma under S. 16 (5) of the Act praying that the allotment order be cancelled. This application was rejected by an order dated 16-9-1976 on the ground that no application under S. 16 (5) of the Act would lie at the instance of the landlord as he was not in occupation of the building. 7. Against the order dated 16-9-1976, Jai Deo Sharma filed a revision which was numbered as Revision No. 106 of 1976. The revisional authority was of the view that before rejecting the application an enquiry should have been made whether the allotment order was made in accordance with cl. (a) or (b) of sub-sec. (1) of S. 16 of the Act after giving opportunities to the parties to produce evidence. Then revision was allowed and the matter was remanded back. 8. Consequent upon the order of the revisional authority, an application under S. 16 (5) of the Act was taken up for consideration. The parties were given an opportunity to produce evidence and they produced evidence and arguments were heard. 9. This time the authority found that Munnu Halwai had become a tenant of the shop under the rent deed dated 27-3-1962 and his tenancy continued till 4-7-1978 and on 5-7-1978 Munnu Halwai in collusion with one Shyam Dass gave possession of the shop to Shyam Dass, the petitioner, after taking a premium. It further found that a suit for eviction was filed by Jai Deo Sharma being Suit No. 583 of 1973 which was pending in the Civil Court at the time when possession was handed over to the petitioner. It further found after considering the evidence on record that there was no notification of vacancy and pasting of the finding of vacancy on the notice board. It further found that neither Jai Deo Sharma nor any member of his family had any notice of the summons which had been sent to him intimating him about the vacancy as they were not living in Najibabad at the time. It further found that neither Jai Deo Sharma nor any member of his family had any notice of the summons which had been sent to him intimating him about the vacancy as they were not living in Najibabad at the time. The further finding was that Munnu Halwai gave possession to Shyam Dass after taking a premium as he was afraid that the suit for eviction could be decreed against him. Having recorded these findings the authority cancelled the allotment order passed in favour of the petitioner, Shyam Dass. Aggrieved Shyam Dass, the petitioner, filed a revision. 10. The revisional authority rejected the case of the petitioner that Munnu Halwai had vacated the accommodation in 1975. It agreed with the finding of the District Magistrate that the tenant had illegally transferred possession of the disputed shop to Shyam Dass. It, however, found that Munnu Halwai when he vacated the shop and handed over the possession to Shyam Dass, there was a deemed vacancy under S. 12 of the Act. It accordingly found that the authority was wrong in holding that there was no vacancy when the allotment order was made. 11. The , revisional authority then considered the fact whether the order of allotment was vitiated because of the non- compliance of R. 8 (2) of the Rules framed under the Act. It found that R. 8 (2) requires that an inspection of the building shall be made so far as possible in the presence of the landlord or the tenant or any other occupant. It found that since the landlord was not living at Najibabad when the inspection was done, the absence of the landlord at the time of inspection would not vitiate the inspection and the report of the Inspector. It relied upon a decision of this Court in the case of Mohammed Nasim v. V. Addl. Disrict Judge, 1980 All Rent Cas 70 : 1980 UPLT NOC 109 wherein it was held that as the rule provides that the inspection shall, so far as possible, be made in the presence of the landlord it also contemplated a situation where an inspection can lawfully be made in the absence of the landlord if the circumstances so justified. The revisional authority, however, held that R. 9 (3) was violated as the date on which the question of allotment was considered, was not intimated to the landlord. The revisional authority, however, held that R. 9 (3) was violated as the date on which the question of allotment was considered, was not intimated to the landlord. It held that it could not interfere with the finding of fact recorded by the District Magistrate that no such notice was served on the landlord. It accordingly set aside the allotment made in favour of the petitioner, Shyam Dass. 12. In this situation, the petitioner, Shyam Dass filed the writ petition. He has challenged, and prayed for quashing, the order dated 16-1-1978 of the revisional authority as well as the final order of the revisional authority dated 15-7-1980 under which the allotment has been cancelled. 13. The learned counsel for the petitioner Sri Girdhar Malviya has urged, that the order of the revisional authority dated 16-1-1978 (Annexure 7 to the writ petition) was bad in law and consequently all the subsequent proceedings were bad including the second order of the revisional authority dated 15-7-1980. 14. The argument of the learned counsel for the petitioner is that an application for review under S. 16 (5) of the Act could not have been filed by Jai Deo Sharma as he was not an occupant of the building as admittedly the shop was in the tenancy of Munnu Halwai and thereafter in the occupation of the petitioner and consequently Jai Deo Sharma was not an occupant of the building. S. 16 (5) of the Act runs as follows :- "16 (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 made in accordance with cl. (a) or cl. (b), as the case may, of sub-s. (1), the 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." 15. The learned counsel has placed reliance upon a decision of a learned single Judge of this Court in the case of B. Solomon v. Syed Illifat Hussain, 1981 All Rent Cas 421 wherein it was observed as follows : "A plain reading of the above provision makes it apparent that an application for review can be maintained only by the person who claims to be the occupant of the building. In the present case landlord may claim to be in possession of the property through opposite party No. 1 but the landlord cannot be said to be in occupation of the building. In this view of the matter I am of the opinion that the petitioner is justified in saying that the review application at the instance of the landlord who did not claim to be in occupation of the property in dispute, was not maintainable. Since the review application itself was not maintainable, the revision also could not be maintained. In my opinion, therefore, the learned District Judge committed manifest error in allowing the revision of the landlord." 15A. Section 16 (5) (a) has been quoted above. Clause (a) of sub-sec. (5) of S. 16 refers to category of persons who are competent to file an application, one is the landlord and the other is a person claiming to be a lawful occupant of the building. It cannot be urged that a landlord who is not in occupation of the building is excluded from the purview of the person competent to file an application under S. 16 (5) of the Act. 16. What is generally known as an order of allotment is made under S. 16 (1) (a) and it requires a landlord to let a building. The landlord is vitally affected by the making of an order under S. 16 (1) (a). The legislature, therefore, intended that he can file an application under S. 16 (5) (a). Similarly, a person claiming to be a lawful occupant of a building can be vitally affected by both an order under S. 16 (1) (a) and (b). Under S. 16 (1) (a) an allotment order is made which would affect the person who is in occupation of the building possibly being evicted. Similarly, when an order of release is made under S. 16 (1) (a) releasing the whole of a part of a building in favour of the landlord, the person in occupation of the building is vitally affected. I am, therefore, unable to agree with the view taken in the case of B. Solomen, 1981 All Rent Cas 421 (supra) that unless the landlord is in physical occupation of the building, he cannot file an application under S. 16 (5) of the Act. I would, therefore. I am, therefore, unable to agree with the view taken in the case of B. Solomen, 1981 All Rent Cas 421 (supra) that unless the landlord is in physical occupation of the building, he cannot file an application under S. 16 (5) of the Act. I would, therefore. hold that an application under S. 16 (5) can be filed by a landlord even if he is not in physical occupation of the building in question. 17. However, I am not making a reference to a larger Bench because I am of the view that the petitioner having submitted to the order dated 16-1-1978 and having permitted further proceedings to go on, cannot now be permitted to challenge the order particularly when this writ petition has been filed only on 23-7-1980. 18. The next submission of the learned counsel for the petitioner is that the revisional authority erred in applying R. 9 (3) of the Rules framed under the Act and he further urges that the revisional authority was in error in setting aside the order on the ground that R. 9 (3) had not been complied with. He submits that R. 9 (3) has no application as neither the landlord nor the tenant of the building, namely Munnu Halwai had given a notice of the vacancy in writing to the District Magistrate as required by S. 15 (1) and (2) respectively. 19. The learned counsel has placed reliance on certain decisions of this Court in support of his argument. The first decision is in the case of Brij Mohan Sharma v. District Judge, Pauri Garhwal, 1979 All Rent Cas 308. In that case. a learned single Judge- of this Court has observed as follows:- "The third submission was about the noncompliance of sub-rule (3) of R. 9 of the Rules. It is admitted case of the parties that the petitioner was not given any notice under R. 9. The learned District Judge, however, repelled the contention of the petitioner on the ground that since R. 9 (3) applied only to a case of intimation sent by a landlord under S. 15 (1), the petitioner's grievance was unjustified. The view of the learned District Judge appears to be correct. Reading R. 9 in its entirety it would be found that the same was applicable only to a case, where an intimation was sent by a landlord. The view of the learned District Judge appears to be correct. Reading R. 9 in its entirety it would be found that the same was applicable only to a case, where an intimation was sent by a landlord. In this case, I am not required to express a concluded view on the said controversy, inasmuch as on account of the non-service of a notice under sub-rule (3) of R. 9, the petitioner had not been prejudiced. The petitioner filed a revision against the allotment order and made submissions which could be advanced on his behalf in opposition to the application of respondent No. 3. The ground, therefore, taken by the petitioner is not a fit one for interference in the present case. The petitioner has not been prejudiced." 20. In this case. the learned Judge has taken care to say that he is not expressing a concluded view on the matter though the learned Judge indicated his preference for a particular view. The remarks of the learned Judge would therefore, at best be an obiter dicta as the question was being decided on another basis, namely the absence of prejudice. 21. The next decision relied upon by the learned counsel for the petitioner is in the case of Smt. Parmeshwari Devi v. Addl. District Judge, 1980 All CJ 468 : 1980 UPLT NOC 142. The learned Judge in that case dealing with the question of non-compliance of R. 9 (3) of the Rules, observed as follows : "A reading of the rule as a whole indicates that this rule becomes applicable in a case where a notice about the vacancy of an accommodation is given either by a landlord or a tenant as provided in sub-sec. (1) or sub-sec. (2) of S. 15. Sub-rule (1) lays down the particulars which have to be mentioned in such notice. Sub-sec. (2) provides that such a notice has to be signed and dated by the informant and can be presented any time during office hours on any working day or can be sent by registered post acknowledgement due. Sub-rule (3) then provides for the action which is to be taken on receipt of notice under S. 15 (1) or (2) of the Act and it is in that connection that it lays down that the information about the date of consideration of allotment application shall be given to the landlord. Sub-rule (3) then provides for the action which is to be taken on receipt of notice under S. 15 (1) or (2) of the Act and it is in that connection that it lays down that the information about the date of consideration of allotment application shall be given to the landlord. Sub-r. (3) of R. 9 has no application to a case where the intimation of vacancy contemplated by S. 15 (1) and (2) of the Act has not been given to District Magistrate either by the landlord or by the outgoing tenant. 22. The learned counsel for the respondent has relied upon a decision in the case of Sheo Charan Lal Gulati v. Kamala Kapoor, 1983 All LJ 413. In that case it was held that R. 9 (3) was mandatory in character and its non-compliance renders the allotment invalid. 23. This case will not assist the respondent because in the present case the vacancy was neither reported by the landlord nor Munnu Halwai, the tenant, and R. 9 (3) of the Rules framed under the Act would not come into play. 24. Another decision relied upon by the learned counsel for the respondent is in the case of Vinod Chandra Dubey v. IXth Addl. District Judge, Allahabad, (1979) All Rent Cas 94 : 1978 All LJ 1181. In that case what had happened was that a vacancy was notified by the landlord and consequently the premises was allotted to one Rais Ahmad. He could not get possession and got another house allotted in his name and informed the Rent Control & Eviction Officer about the same. The vacancy was notified again and this time the Rent Control & Eviction Officer allotted the premises to Vinod Chandra Dubey. An appeal filed by the landlord was allowed on the ground that no notice of the second allotment proceedings was sent to the landlord. A writ petition was filed against the order of the appellate authority and in that writ petition it was urged that the landlord was not entitled to notice. The submission of the learned, counsel was rejected. It was held that as the landlord had intimated the vacancy he was entitled to notice of the second allotment proceedings. It was, however, held that R. 9 (3) was mandatory and the order of allotment was invalid. This authority is of assistance to the respondent. 25. The submission of the learned, counsel was rejected. It was held that as the landlord had intimated the vacancy he was entitled to notice of the second allotment proceedings. It was, however, held that R. 9 (3) was mandatory and the order of allotment was invalid. This authority is of assistance to the respondent. 25. The learned counsel for the respondent has urged that the petitioner having submitted to the order dated 16-1-1978, he cannot now dispute the existence of the vacancy. This argument cannot be accepted for the simple reason that by this order the matter was remitted to the District Magistrate to consider whether the allotment order had been made in accordance with the provisions of cls. (a) and (b) of sub-sec. (1) of S. 16 after giving the parties an opportunity of leading evidence. 25A. However, the fact that in the impugned order one of the questions decided in favour of the petitioner was that there was a deemed vacancy under the provisions of S. 12 (2) of the Act because Munnu Halwai had vacated the accommodation. It has further been found that Munnu Halwai had illegally transferred possession of the disputed shop to Shyam Dass, the petitioner. Unless and until, Munnu Halwai had physically vacated the shops, there can be no deemed vacancy. There is no finding of the revisional authority as to when Mannu Halwai vacated the premises in dispute before or after the making of the allotment order and as such the finding that there was a vacancy when the allotment order was made, cannot be sustained. 26. I have already held that in the circumstances of the case violation of R. 9 (3) of the Rules framed under the Act would not affect the allotment order. However, the allotment order is bad on another ground. 27. In the result, the writ petition is allowed the impugned order dated 15-7-1980 (Annexure 10 to the writ petition) is quashed and the matter shall be considered afresh by the District Magistrate who will, treating the shop in question as vacant, decide any release application or allotment application that may be preferred before it. The parties will bear their own costs.