G.C.Mathur, J. - (1.) Premises No. 73/18, Collectorganj, Kanpur, consisting of a large building, are owned by Lakshmi Rattan Cotton Mills. The entire premises were let out by the owners to respondent No. 4. It appears that in one shop out of these premises the respondent No. 4 inducted one Sri Lachhman Prasad as a sub-tenant. Respondent No. 4, the tenant-in-chief, filed a suit for the eviction of the subtenant, but during the pendency of that suit the sub-tenant intimated to the Rent Control and Eviction Officer that he was going to vacate the premises and requested that the premises be allotted in favour of one Om Narain. The tenant-in-chief also made an application purporting to be one under Rule 6 of the Control of Rent and Eviction Rules for releasing the shop in its favour. By an order dated August 5,1957, the Rent Control and Eviction Officer rejected the application under Rule 6 and allotted the shop in favour of the petitioner. Since the respondent No. 4 had taken possession of the shop on its being vacated by the sub-tenant, the Rent Control and Eviction Officer took proceedings under Section 7-A of the U.P. Control of Rent and Eviction Act. Objections were filed by respondent No. 4 to these proceedings, but they were dismissed by the Rent Control and Eviction Officer. A revision application against this order was also rejected by the Additional Commissioner by an order dated March, 1, 1918. Thereafter on July 4, 1958, the petitioner obtained possession over the shop in pursuance of the proceedings under Section 7-A. In the meantime, respondent No. 4 took up the matter before the State Government under Section 7-F of the Act and by an order dated July 31, 1958, the State Government set aside the order of allotment and, directed release of the shop in favour of respondent No. 4. Thereafter the actual order of release was passed by the Rent Control and Eviction Officer, and he started taking action under Section 7-A of the Act against the petitioner for evicting him from the shop. At this stage the petitioner filed the present writ petition for quashing the order of the State Government dated July 31, 1958, and the proceedings taken subsequently in pursuance of that order.
(2.) After hearing learned counsel for both the parties I am of opinion that the original order of allotment in favour of the petitioner made by the Rent Control and Eviction Officer was entirely without jurisdiction and that accordingly the order of the State Government setting aside that order, even if it suffers from any infirmity, cannot be quashed in these proceedings. From the definition of the word "landlord" contained in Section 2(c) of the Act it clear that Messrs. Lakshmi Rattan Cotton Mills were the landlords of the entire premises and from the definition of the word "tenant" contained in Section 2 (g) of the Act it is clear that respondent No. 4 was the tenant. Admittedly, Lachhman Prasad was the sub-tenant of respondent No. 4. Lachhman Prasad vacated the shop of which he was the sub-tenant. The question arises whether there was such a vacancy as would attract the application of sub-Secs. (1) and (2) of Section 7 of the Act. It is not disputed that sub-Secs. (1), and (2) of Section 7 apply to the same kind of vacancy. Sub-Section (1) of Section 7 contemplates vacancy of two kinds, viz. (1) where an accommodation becomes vacant by a landlord who himself is in occupation, ceasing to occupy the same and (2) where an accommodation becomes vacant by the tenant, who was in occupation vacating the same. Sub-Secs. (1) and (2) of Section 7 do not contemplate so "a vacancy occurring on a sub-tenant vacating any accommodation in his occupation. To a vacancy occurring on the vacation of an accommodation by a sub-tenant sub-Section (3) of Section 7 applies. If such a vacancy were of covered by sub-Secs. (1) and (2) of then there was no necessity to enacted sub-Section (3) also. Sub-Section (3) of p Section 7 reads as follows is "No tenant shall sublet any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously obtained." If sub-Secs. (1) and (2) of Section 7 were applicable to an accommodation vacated by a sub-tenant, then sub-Section (3) would become redundant as in that case the District Magistrate could allot the accommodation to any person and no question would arise under sub-Section (3) of seeking the permission of the District Magistrate and of the landlord, I am clearly of the opinion that to an accommodation vacated by a subtenant the provisions of sub-Section (3) of Section 7 apply and that provisions of sub-Secs. (1) and (2) of that section do not apply. In this view I am supported to a large extent by the observations made by a Division Bench of this Court in Brij Kishore v. Rent Control and Eviction Officer, AIR 1954 All 428 : 1954 ALJ 172. In that case the learned Judge have observed that an accommodation is not vacant so as to be available for allotment if the tenant-in-chief docs not use a portion of the accommodation let out to him or gives a portion of it to a sub-tenant. Where a sub-tenant vacates an accommodation, it is open to the tenant-in-chief either to induct another sub-tenant or not to do so. If he decided on the former course he must first obtain the permission of the landlord and of the District Magistrate to do so. When he applies to the District Magistrate for permission, the District Magistrate may either grant the permission or refuse it, but he cannot make an order of allotment under Section 7(2). But if the tenant-in-chief does not desire to induct another sub-tenant he need not inform the District Magistrate and can occupy the accommodation himself. It is unnecessary, in that case, for him to apply for release of the accommodation under Rule 6.
(3.) In the present case, since the accommodation in dispute was one vacated by a sub-tenant, sub-Secs. (1) and (2) of Section 7 of the Act were not applicable to it and the Rent Control and Eviction Officer had no jurisdiction to make an order of allotment in respect of this accommodation in favour of the petitioner. The order of allotment having been made without jurisdiction was a nullity and has been rightly set aside by the State Government.;