Judgment : Sudhir Narain. J. 1. THE petitioner has sought a writ of certiorari for quashing the order dated 19.1.1989, passed by Rent Control and Eviction Officer, rejecting the application of the petitioner filed under Section 16 (5) of U. P. Act No. 13 of 1972 and the order dated 4.8.1990, passed by respondent No. 3, dismissing the revision against the aforesaid order. 2. THE petitioner is owner of premises No. 7-156-C, Swarup Nagar, Kanpur. He was in service and was posted at Lucknow. One Ajai Tandon was occupying the disputed accommodation. Respondent No. 1 filed an application for allotment. THE Rent Control and Eviction Officer called for a report from the Rent Control Inspector. THE Rent Control Inspector took the statement of Ajai Kumar Tandon that he was likely to vacate the accommodation. He reported that the accommodation can be treated as vacant. THE Rent Control and Eviction Officer declared the vacancy by order dated 17.10.1985 and allotted it to respondent No. 1 on 30.10.1985. THE version of the petitioner was that he had no knowledge regarding the allotment order passed in favour of respondent No. 1 as he was posted at Lucknow and was residing there. He filed suit No. 575 of 1986 for possession against Ajai Kumar Tandon on the allegation that he was a licensee and his licence was revoked and he was entitled to its possession. During the pendency of the suit, one Mahesh Chandra Mishra also filed an application for allotment of the premises on 27th May, 1986. On his application, the Rent Control and Eviction Officer called for a report from the Rent Control Inspector on 18.9.1986. THE Rent Control Inspector submitted a report that the accommodation in question is vacant. On 10.12.1986, the petitioner filed an objection before the Rent Control and Eviction Officer that Ajai Kumar Tandon was living as licensee and not as tenant and he has filed suit No. 575 of 1986 for possession against him and the matter is subjudice before the Court, the accommodation should not be treated as vacant for the purpose of passing allotment order. The Rent Control and Eviction Officer, however, declared the accommodation in question as vacant by his order dated 9.4.1987 and directed to issue notice to the landlord. The objection of the petitioner that it should not be declared as vacant was rejected by him by order dated 19.6.1987. The Rent Control and Eviction Officer, however, declared the accommodation in question as vacant by his order dated 9.4.1987 and directed to issue notice to the landlord. The objection of the petitioner that it should not be declared as vacant was rejected by him by order dated 19.6.1987. On 12.6.1987, he passed an order of allotment in favour of one Vishnu Kant Agarwal. In the order, it was stated that though the landlord has taken time for filing release application but he has not filed any release application and there was no other applicant for allotment and Vishnu Kant Agarwal is entitled for allotment. 3. ON 18.7.1987, the petitioner filed an application for release of the accommodation in question. ON his application, the Rent Control and Eviction Officer directed the Rent Control Inspector to submit a report. In the meantime, it appears that respondent No. 1 having come to know that allotment order has been passed in favour of Vishnu Kant Agarwal on 12.6.1987, filed an application for its cancellation. It appears that on his application, the Rent Control and Eviction Officer by his order dated 2.9.1987 recalled the order dated 12th June, 1987 whereby he had allotted the accommodation in favour of Vishnu Kant Agarwal and further consigned the release application filed by the petitioner on 18.7.1987. It was observed in the order that he has perused the record of case No. 75 of 1985 whereby the accommodation had already been allotted on 30.10.1985 and it was not necessary to take any further proceedings in respect of the release or allotment. The papers were consigned. In this order dated 2.9.1987, there is nothing to show that the order was passed in presence of the petitioner or his counsel. 4. ON 14.9.1987, the petitioner filed an application for recall of the order dated 30.10.1985 on the allegation that the allotment order was obtained fraudulently concealing the material facts and without notice to him. He filed an affidavit in its support. It was stated by him in the application that he had come to know of the allotment order on 8th September, 1987 on inspection of the file and he had not received any notice regarding allotment proceedings. It was stated that the allotment order had been passed without any notice to him. He filed an affidavit in its support. It was stated by him in the application that he had come to know of the allotment order on 8th September, 1987 on inspection of the file and he had not received any notice regarding allotment proceedings. It was stated that the allotment order had been passed without any notice to him. The Rent Control and Eviction Officer rejected the review application by order dated 19.1.1989 on the ground that the Rent Control and Eviction Officer had already passed an order on 2nd September, 1987 upholding the order dated 30.10.1985 and the allottee is also in possession, there was no reason to cancel the allotment order. The petitioner filed revision against the said order. Respondent No. 3 dismissed the revision on the ground that the application for review filed by the petitioner under Section 16 (5) of the Act was barred by limitation and further there was no jurisdictional error in the order passed by Rent Control and Eviction Officer. The petitioner has challenged the order dated 19.1.1989 and 4.8.1990 in this writ petition. 5. I have heard Sri K. M. Dayal, learned Senior Advocate for the petitioner and Sri P. N. Saxena, learned Advocate for the respondents. 6. THE first question is as to whether the application filed by the petitioner under Section 16 (5) of the Act was barred by limitation. Section 16 (5) (a) of the Act provides that 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 clause (a) or clause (b). as the case may be, of sub-section (1), the District Magistrate may review the order. THE proviso to this sub-section provides that no application under this clause shall be entertained later than seven days after the eviction of such person. THE limitation for filing application within seven days as indicated in the aforesaid proviso is applicable only to such a person who has been evicted but in case the applicant has not been evicted who has filed an application for review, period of seven days shall not be applicable to him. THE limitation for filing application within seven days as indicated in the aforesaid proviso is applicable only to such a person who has been evicted but in case the applicant has not been evicted who has filed an application for review, period of seven days shall not be applicable to him. Section 16 (5) (a) of the Act does not provide limitation for filing application by a person who has not been evicted in pursuance of the order of allotment. The question was considered in Bharat Lal Jaiswal v. IXth Additional District and Sessions Judge, Allahabad and others, 1976 UPRCC 359. It was held that where the application for review is filed by the landlord under Section 16 (5) (a) of the Act who has not been evicted, the limitation of filing the application for review within seven days of the passing of allotment order does not arise. The Court referred to Rule 33 (1) of the Rules which provide that an application under Rule 32 to set aside an order deciding an appeal or application ex parte shall be made within 30 days from the date of such order or where the notice of such appeal or application was not duly served when the appellant or the applicant, as the case may be, had knowledge of that order. It was held that the application for review can be made within 30 days and even beyond the period of 30 days provided that sufficient cause is shown for condoning the delay. 7. IN Madhu Gupta v. VIth Additional District Judge, Agra and others, 1988 (2) ARC 1, the Supreme Court repelled the contention that the review application can be filed by only such landlord who were in actual physical occupation of it. It was held that it can be filed by the landlord who was not in actual physical possession and the limitation of seven days will not be applicable to him in case he was not physically evicted from the premises in question. It was further held that the proviso to Section 16 (5) of the Act cannot curtail the rights of the landlord to file an application for review under that provision. 8. It was further held that the proviso to Section 16 (5) of the Act cannot curtail the rights of the landlord to file an application for review under that provision. 8. RESPONDENT No. 3 has taken the view that the petitioner should have filed application for review under Section 16 (5) of the Act within seven days of the date of knowledge of the order of allotment passed in favour of respondent No. 1. He has further held that the petitioner had knowledge of the date of allotment order on 9.4.1987 and 2.9.1987, the petitioner having filed an application for review on 14.9.1987, was barred by time. The view taken by respondent No. 3 that the limitation for filing the application for review is seven days from the date of the knowledge of the order of allotment, is erroneous in law, as held in the decisions referred to above that seven days limitation will be applicable only in those cases where the person who was in actual physical occupation of the premises in question and not for the landlord who was not in its actual physical occupation. As held in Bharat Lal Jaiswal's case (supra), the limitation can be taken as 30 days from the date of the knowledge as provided in Rule 33 (1) of the Rules framed under the Act. The question is as to when the petitioner had come to know of the allotment order. The version of the petitioner was that he was living at Lucknow when the proceedings for allotment were initiated on the application for allotment filed by respondent No. 1. He was not served with any notice. The Rent Control Inspector had himself indicated in his report dated 17.9.1985 that he could not contact the landlord who was living at Lucknow and his address was not known. The notice of service is alleged to have been effected by publication of the notice in the newspaper 'Dashmeat' dated 29.9.1985. The Rent Control and Eviction Officer declared the vacancy on 17.10.1985 and passed an order in favour of respondent No. 1 on 30.10.1985. The petitioner filed application for review on 14.9.1987. The application was supported with an affidavit filed by the petitioner, a copy of which has been annexed as Annexure 11 to the writ petition. The Rent Control and Eviction Officer declared the vacancy on 17.10.1985 and passed an order in favour of respondent No. 1 on 30.10.1985. The petitioner filed application for review on 14.9.1987. The application was supported with an affidavit filed by the petitioner, a copy of which has been annexed as Annexure 11 to the writ petition. In the affidavit, it was stated that the vacancy was declared on 9.4.1987 and he sought time to move application for release. He filed application for release on 18th July, 1987 and the Rent Control and Eviction Officer called a report from the Rent Control Inspector. The Inspector made inquiries from the petitioner and he gave statement in writing on 1.9.1987. No date was fixed. In paragraph 16 of the affidavit, it has been stated that his counsel filed an application for inspection on 7.9.1987 to look into the report of the Inspector. On inspection of the file on 8.9.1987, it was revealed that the order has already been passed on 2.9.1987. In this affidavit, the petitioner nowhere stated he had come to know of the allotment order prior to 8.9.1987. 9. RESPONDENT No. 3 has relied upon the facts stated in the grounds of revision filed by the petitioner. In the grounds of revision, certain facts were stated. The relevant part on which the learned counsel for the respondent No. 1 has laid emphasis is as follows : "The revisionist only came to know when the allotment application of Dr. Mahesh Chandra Mishra was moved and the vacancy was declared on 9.4.1987. The revisionist in pursuance of the vacancy order dated 9.4.1987 moved an application for release under Section 16 (1) (b) of U. P. Act No. XIII of 1972 in the month of July, 1987 on which a report from S.I.R.C. was called for. On inspection of the report of S.I.R.C. dated 8.9.1987, it was revealed that there exists an order of allotment dated 30.10.1985 in favour of respondent No. 1." The petitioner had referred the date 9.4.1987 as the date of declaration of vacancy. There was no clear admission that he came to know of the allotment order dated 30.10.1985 on 9.4.1987. He had, however, stated that the inspection was made and on inspection dated 8.9.1987, it was revealed that there exists an order of allotment dated 30.10.1985. There was no clear admission that he came to know of the allotment order dated 30.10.1985 on 9.4.1987. He had, however, stated that the inspection was made and on inspection dated 8.9.1987, it was revealed that there exists an order of allotment dated 30.10.1985. Firstly, the facts stated in the grounds of revision, unless there is specific admission, cannot be taken as conclusive on issue which is in dispute. Secondly, the petitioner had filed an affidavit and the respondent No. 3 had to consider the facts as stated by him in it. 10. THE version of the petitioner was that he had filed suit for possession against Ajai Kumar Tandon in the year 1987 after paying heavy Court Fees. He took steps for filing an application for release. THE Rent Control and Eviction Officer consigned all the papers on 2nd September, 1987 without being any date fixed in the case and without his knowledge on the application filed by respondent No. 1. THE order dated 2nd September, 1987 does not indicate that the order was passed after hearing the petitioner or his counsel. It was not the date fixed in the, case. THE papers were directed to be consigned on the application filed by respondent No. 1 for cancellation of the allotment order passed in favour of one Vishnu Kant Agarwal. Even assuming that the petitioner came to know on 2nd September, 1987, the application filed for review by him on 14.9.1987 was within limitation. The learned counsel for respondent No. 1 has urged that the petitioner must have come to know about the allotment order dated 30.10.1985 when respondent No. 1 filed application for cancellation of allotment order dated 12.6.1987 passed subsequently in favour of one Shri Vishnu Kant Agarwal and it was only on his application the release application filed by the petitioner was consigned on 2.9.1987. Respondent No. 1 has nowhere stated that copy of the application filed by him was served on the petitioner. The petitioner had stated that he came to know about the order dated 2.9.1987 on 8.9.1987. In these circumstances, the application filed by the petitioner for review of the order dated 30.10.1985 under Section 16 (5) of the Act shall be taken to have been filed within the period of limitation. 11. The petitioner had stated that he came to know about the order dated 2.9.1987 on 8.9.1987. In these circumstances, the application filed by the petitioner for review of the order dated 30.10.1985 under Section 16 (5) of the Act shall be taken to have been filed within the period of limitation. 11. THE Rent Control and Eviction Officer had not rejected the application of the petitioner for review filed under Section 16 (5) of the Act on the ground that it is barred by limitation. THE application was rejected on the ground that the Rent Control and Eviction Officer had passed the order on 2nd September, 1987 consigning the application of release filed by the petitioner as there exists allotment order dated 30.10.1985 in favour of respondent No. 1. In fact, by order dated 2nd September, 1987, the Rent Control and Eviction Officer had not decided the question as to whether the allotment order dated 30.10.1985 was valid. There was no issue before the Rent Control and Eviction Officer that the allotment order dated 30.10.1985 was invalid. THE Rent Control and Eviction Officer while rejecting the application on 19.1.1989 also did not decide the controversy involved in the case on merits. 12. THE Rent Control and Eviction Officer was required to decide as to whether any notice was given to the petitioner before declaration of vacancy as provided under Rule 8 (2) of the Rules framed under the Act and further the petitioner was served with any notice as provided under Rule 9 (3) of the Rules framed under the Act. He had to take into consideration the various allegations of fraud by the petitioner in his application. In view of the above, the writ petition is allowed, the order dated 19.1.1989 passed by the Rent Control and Eviction Officer and the order dated 4.8.1990 passed by respondent No. 1, are hereby quashed and respondent No. 2 is directed to decide the application afresh in accordance with law on merits after giving opportunity of hearing and leading evidence to the parties concerned. He will decide the question as to whether the petitioner was served with a notice before declaration of vacancy and thereafter again a notice was served upon him as provided under Rule 9 (2) of the Rules framed under the Act. He will decide the question as to whether the petitioner was served with a notice before declaration of vacancy and thereafter again a notice was served upon him as provided under Rule 9 (2) of the Rules framed under the Act. As the matter is very old, he is directed to decide the case possibly within two months from the date of production of a certified copy of this order.