M.P Singh, J.:— Is it open to the petitioner to challenge the order declaring vacancy on the ground that there was neither any vacancy nor any likelihood of the vacancy to occur, as he was in occupation as a tenant, when he himself moved an application for allotment of the accommodation on the ground that it was vacant? No.

2. Once an order declaring vacancy has become final and subsequently the premises has been released in favour of the landlord, can the petitioner challenge the said order of release under Section 16 of the U.P Act No. XIII of 1972 (hereinafter referred to as the Act) on the ground that since there was no vacancy the order of release could not have been validly passed? No. Certainly not. This writ petition is directed against the order dated 8-9-1992 dismissing petitioner's revision filed against the order dated 5-4-1992 passed by the Rent Control, and Eviction Officer (in short ‘R.C.E.O) releasing the accommodation in favour of the landlord—opposite party No. 3.

3. The petitioner filed an application for allotment on 24-1-1979. The Rent Control Inspector submitted his report on 11th April. The vacancy was declared on 18-10-1979. The petitioner who was said to be in occupation, was heard before the order was passed.

4. Against this order the petitioner filed a review application under Section 16(5) read with Section 34 of the Act for recalling the same wherein it was stated by him that he had been occupying the premises as a tenant since before 5-7-1976. According to him the tenancy stood regularised under Section 14 of the Act as he has been in occupation of the building with the consent of the landlord immediately before the commencement of the Act.

5. The R.C.E.O rejected the review application on 26-11-1980 holding that it was not maintainable. The petitioner filed another application for recalling this order. It was also rejected on 22-12-1980 affirming the earlier order.

6. Against the order declaring vacancy and rejecting the review petition, the petitioner filed revision No. 10 of 1981. It was dismissed on 4-12-1981 holding that the revision was not maintainable.

7. Later on the R.C.E.O passed an order releasing the accommodation in favour of the landlord on 5-4-1982. The petitioner filed a revision against this order. He also filed some new documents before the revisional Court. They were admitted and became part of the record.

8. The learned Additional District Judge allowed the revision on 27-5-1982. The order of release dated 5-4-1982 was set aside. The case was remanded to the R.C.E.O for deciding the question of vacancy and release after giving both the parties the opportunity of adducing evidence. The provision of Section 14 of the Act and other relevant provisions of law was also to be taken into consideration.

9. The landlord-opposite party No. 3 filed a writ petition in this Court challenging the remand order. It was allowed in part on 24-11-1988. The remand order was set aside. The revisional court was directed to dispose of the revision afresh according to law after permitting the parties to lead additional evidence.

10. The revision was dismissed on 8-9-1992. The order of release dated 5-4-1982 was upheld. This writ petition is directed against the said revisional order.

11. At the admission stage the opposite party No. 3 had put in appearance and filed a counter affidavit. Rejoinder affidavit has also been filed. Accordingly the case is being disposed of finally at this stage.

12. Two points arise for consideration:—

(1) Whether the order dated 18-10-1979 declaring the vacancy has become final and is beyond the scope of the present writ petition?

(2) Whether the order of the R.C.E.O dated 5-4-1982 releasing the accommodation in favour of the landlord and the impugned order of the revisional Court affirming the same suffer from any illegality or any jurisdictional error?

13. According to the scheme of the Act, Section 12 of the Act provides for a deemed vacancy of a building in certain cases. The ascertainment of vacancy is done under Rule 8 of the Rules framed under the Act. The vacancies contemplated under Sections 12, 16 and 34(8) of the Act are covered under Rule 8.

14. As soon as the District Magistrate receives an application for allotment or release of an accommodation alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, he passes an order for inspection by the Rent Control Inspector who as far as possible makes inspection in the presence of the landlord and the tenant or any other occupant and submits his report thereafter to the R.C.E.O If there is any objection by anybody that is considered and thereafter the vacancy is declared by the R.C.E.O Neither the Act nor the Rules provide any remedy to challenge the order declaring the vacancy. There is no provision for any review or revision.

15. The only remedy available to the petitioner to challenge the order declaring the vacancy was to file a writ petition in this Court. It was not done. Thus the order dated 18-10-1979 became final. Even in this writ petition the said order is not under challenge.

16. Admittedly the petitioner himself invoked the jurisdiction of the R.C & E.O for allotment of the premises by filing an application on 24-1-1979. Obviously according to him either the building was vacant on the date when he filed the application or was likely to fall vacant. The R.C & E.O had no option but to proceed with the proceedings for allotment/release of the said premises. The report of the Rent Control Inspector was gone through by him and he declared the vacancy on 18-10-1979. The petitioner had wrongly filed a review petition under Section 16(5) of the Act and then a revision against the order rejecting the review petition.

17. So far Section 16(5)(a) of the Act is concerned it only confines itself to review of order of allotment or release but the order declaring vacancy is beyond the scope of the section itself.

18. The consistent view of the Court has been that neither any review lies against such an order nor a revision. Reference may be had to cases in Smt. Kunjlata v. X Additional District Judge Kanpur . 1991 18 ALR 118.; and Ganpati Rai v. Additional District Magistrate.2 In a recent case in Jaswant Singh v. Additional District Judge, Dehradun,3 it has been reiterated that against the order of the R.C.E.O no revision lies.

19. Sri Manoj Gupta, learned counsel for the petitioner, contended that on a mistaken legal advice the application for allotment was filed by the petitioner. The actual position is that the petitioner had been in possession of the premises since before 5-7-1976. The petitioner was entitled for regularisation of the tenancy in view of Section 14 of the Act. He relied upon a decision in Kishori v. The District Judge Banda,4 wherein it has been held that provisions of Section 14 of the Act will apply only if the person claiming the benefit was either a licencee or a tenant with the consent of the landlord since prior to 5-7-1976. It was further clarified that the word ‘consent’ may not be confused with the payment of rent. Acceptance of the rent cannot be said to be a consent prior to 5-7-1976. Therefore the petitioner was required to prove the consent of the landlord accepting him as a tenant. Even in this writ petition nothing has been brought to my notice to show that the consent of the landlord was there. So I am of the view that he was not entitled for regularisation of any tenancy. The authority relied upon by the learned counsel for the petitioner does not support the case of the petitioner. The submission of Mr. Gupta is devoid of merit.

20. Since the petitioner himself has invoked the jurisdiction of the R.C.E.O for allotment stating that there was either a vacancy or it was likely to occur shortly, it is now not open for him to say that there was no vacancy and he was a regular tenant. He cannot be permitted to blow hot and cold at the same time.

21. I am of the view that the order dated 18-10-1979 neither could be reviewed nor could be challenged in revision. The review lies under Section 16(5)(a) against the order of allotment passed under Section 16(1)(a) or the order of release passed under Section 16(1)(b) of the Act. The view taken by the R.C.E.O as well as the revisional court on this point do not suffer from any error apparent on the face of record.

22. The second point to be considered is whether the order of the R.C.E.O dated 5-4-1982 releasing the premises in favour of the landlord suffered from any illegality.

23. Once the R.C.E.O held that the premises was vacant and the order became final be had two options before it either to release the accommodation in favour of the landlord or to pass an order of allotment in case requirement of Section 16(1)(a) and (b) were fulfilled. The only ground on which the petitioner has challenged the release order is that there was no vacancy. Since I have already held that the order declaring vacancy has become final and it could not be challenged in review or revision, I find no merit in the point raised by him. The vacancy was there and so looking to the bona fide need of the landlord the premises has been rightly released.

24. Much stress has been laid by the learned counsel on certain observations made by this Court in its judgment dated 14-11-1988. That writ petition was filed against an order of remand dated 27-5-1982 passed by the revisional court. The scope of the controversy in that writ petition was a limited one. I have gone through that judgment very carefully. A fair reading of the same shows that nowhere it has been said that the question of vacancy should be gone into by the revisional court. The interpretation being given by the learned Counsel for the petitioner, in my opinion, is misconceived. The contention of the learned counsel for the petitioner that the revisional court was bound to decide the question of vacancy is without any substance. When no revision lay against the said order, the question of deciding the same does not arise.

25. Apart from it, the question to be considered is whether the revisional court had any jurisdiction to decide the correctness of the order dated 18-10-1979 declaring vacancy. Can that Court be conferred with the jurisdiction to decide the same either with the consent of the parties or by any order of Court?

26. If the contention of the learned counsel is accepted that the revisional court was bound to decide the question of vacancy, then that amounts to enlarging the jurisdiction of the revisional court which is not prescribed in the Act. The Supreme Court in the case of Chiranjilal Shrilal Goenka (deceased) through L.Rs v. Jasjit Singh . 1992 2 JT 341., had the occasion to consider again the scope of the word “jurisdiction”. In that case reference was made to a decision of the earlier Seven Judges in which Mukherjee, J. (as he then was) expressed his views:—

“The power to create or enlarge jurisdiction is legislative in character. So also the power to eonfer a right of appeal or to take away a right of appeal. The Parliament alone can do it by law and no Court, whether superior or inferior or both combine, can enlarge the jurisdiction of a court and divest a person his rights of appeal or revision. Ranganath Misra, J. as he then was, held that the jurisdiction comes solely from the law of land and cannot be exercised otherwise. In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature, Jurisdiction is thus the authority or power of the Court to deal with a matter and make an order carrying binding force in the facts………………The Supreme Court could not confer jurisdiction if it does not exist in law.”

27. The law laid down in the case of Chiranjilal (Supra) gives strength to the view that the order declaring vacancy cannot be gone into either in review or in revision and any observation to the contrary even if made in the judgment of this Court dated 14-11-1988 will not confer jurisdiction on the revisional court to decide the same. The revisional court had no jurisdiction to examine the validity of the order of R.C.E.O dated 18-10-1979 declaring vacancy. The order of the R.C.E.O dated 5-4-1982 releasing the accommodation has rightly been affirmed by the revisional court by means of the impugned order. The impugned order does not suffer from any legal infirmity much less a jurisdiction error. There is no error apparent on the face of record. No other point survives for consideration.

28. The writ petition being devoid of merit is hereby dismissed without any order as to costs.