Satish Chandra, J. - (1.) IT appears that one Chaddha was the tenant of the shop in dispute. He abandoned it in 1966, Thereafter the respondents, namely, Ram Chand Kohli and Ganga Sagar entered into its possession under an agreement with the landlord and on payment of rent. They, however, did not obtain an order of allot ment in respect of this shop from the Rent Control and Eviction Officer. In 1969, the appellants applied for the allotment of this shop. After hearing the respondents, the Rent Control and Eviction Officer passed an order of allotment in favour of the appel lant. Aggrieved, the respondents filed a re vision before the State Government which was, however, dismissed. The respondents then filed a writ petition in this Court. A learned Single Judge held that in law the accommodation could not be deemed to be Vacant. There was hence no jurisdiction to pass an order of allotment. In the next place it was held that an order of allotment could validly be passed only after the res pondents had been ejected from the accom modation in dispute by appropriate pro ceedings under Section 7-A of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act). So long as the respondents remained in ac tual possession (sic) findings the writ petition was allowed and the allotment order was quashed.
(2.) AN order of allotment can be passed under Section 7 (8) of the Act when an accommodation is or has fallen vacant or is about to fall vacant. The question is whether an occupant of an accommodation by virtue of an agreement between him and the landlord can be deemed to be in lawful possession within the meaning of Section 7 (2) of the Act even if he does not have an allotment order in his favour. In Special Appeal No. 595 of 1961 (All.), SangamLal v. Rent Control and Eviction Officer, Alla habad (decided on 4-8-1966) a Division Bench of this Court held that where a general order has been passed by the Dis trict Magistrate under Section 7 (2) prohi biting the landlord from letting out any ac commodation then, without an allotment order the letting in defiance of such a gene ral order would be unauthorised and in the eye of law there was vacancy; and the Rent Control and Eviction Officer had jurisdic tion to make an allotment order in respect of the premises. This case is applicable on all fours. The fact that in that case the allotment order was passed in favour of the person who was in unauthorised occupation is immaterial; because the existence of vacancy is a condition precedent. Vacancy did not arise on the allotment order being passed in favour of the existing occupant. Learned counsel for the respon dent relied on Viswamitra v. Rent Control and Eviction Officer, Jhansi, 1967 All WR (HC) 473. In that case the tenant was in possession by virtue of a valid agreement The landlord had determined the tenancy. It was held that the mere determination of tenancy did not make the accommodation about to fall vacant. In Lakshmi Narain v. Rent Control and Eviction Officer, Lucknow, 1962 All LJ 213 a decree for eject ment had been passed. In both these cases, the tenancy was valid. The tenant's posses sion at the inception of the tenancy was not unauthorised within the meaning of Section 7 (2) of the Rent Control Act. The ques tion considered in these cases was whether on the determination of the tenancy by the landlord or by the passing of a decree for ejectment by a court, the accommodation in possession of the tenant can be said to be about to fall vacant. The question was answered in the negative. These cases are distinguishable. In the present case, possession of the respondents was unauthorised from the very inception, because they had not obtained an order of allotment in their favour under Section 7 (2) of the Act. Within meaning of Section 7 (2), the respondents were not in valid or authorised occupation from the Very beginning. So, no question of deter mining whether an accommodation, which was in the beginning not vacant, has be come about to fall vacant, arises in the present case. Reliance was also placed on Udhoo Dass v. Prem Prakash, 1963 All LJ 406 at p. 407 = (AIR 1964 All 1) (FB) where it was held that a contract of tenancy in violation of a general or special order of the District Magistrate under Section 7 (2) was not void under Section 10 or Sec tion 23 of the Contract Act. This decision too is of no material assistance. The con tract of tenancy may not be void between the landlord and the tenant but that will not make the possession of the lessee as that of a valid tenant within the meaning of Section 7 (2) of the Act. He will none theless be an unauthorised tenant for the purposes of Section 7 (2) of the Act.
(3.) WE are unable to sustain the view that it was incumbent upon the autho rities to take proceedings for the ejectment of the unauthorised tenant under Section 7-A before passing an order of allotment It is true that proceedings under Section 7-A could have been taken even without an order of allotment; but Section 7-A does not place any bar or prohibition against the passing of an order of allotment under Sec tion 7 (2) of the Act without ejectment of an unauthorised occupant The jurisdiction to make an order of allotment arises on the occurrence of a vacancy. No other condi tion or limitation has been placed upon the exercise of that power.;