Mathur, C. J. - (1.) THE learned Single Judge hearing the Second Appeal was of opinion that the Full Bench decision of this Court in Udhoo Dass v. Prem Prakash, 1963 All LJ 406 : (AIR 1964 All 1) (FB) requires reconsideration and, therefore, referred the following question for consideration by a larger Bench :- "Whether a person to whom an accommodation governed by the U. P. (Temporary) Control of Rent and Eviction Act, 1947, has been let out by a landlord in contravention of a general order passed by the Magistrate under Section 7 of that Act, is liable to be proceeded against under Section 7-A at the instance of the person in whose favour an allotment order has been passed by the District Magistrate subsequent to the date on which the accommodation was unauthorisedly let out by the landlord to the former person." The material facts of the case are that the previous tenant, Jamal Waris, was occupying the disputed shop situate in the city of Lucknow without any allotment order, i.e. an order of the District Magistrate under Section 7 (2) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to 'as the Act') and he vacated the accommodation on 2-6-1967. He was in arrears of rent amounting to Rs. 50. Mohd. Ishaq applied to the District Magistrate on 6-6-1967 for an order of allotment under Section 7 (2) and such an order was passed in his favour on 26-8-1967 and the order was issued on 28-8- 1967. Prior to the passing of the allotment order the landlord made a private contract of tenancy with the present appellant, Abdul Hameed, who agreed to pay a monthly rent of Rs. 4 per month and also paid the arrears due from the previous tenant. There is no dispute in that Abdul Hameed occupied the shop before the passing of the allotment order. It is also not in dispute that neither the landlord nor the previous tenant, Jamal Waris, had intimated to the District Magistrate under Section 7 (1) of the Act that the accommodation had fallen vacant.
(2.) WHEN the District Magistrate took proceedings under Section 7-A of the Act for the eviction of the appellant and for putting the allottee in possession, the appellant instituted the present suit against the allottee Mohd. Ishaq for injunction to restrain him from dispossessing the appellant from the shop. The suit was dismissed by both the courts below and while hearing the second appeal the learned Single Judge made the above reference to a larger Bench. The order of reference reproduced above assumes that there exists a general order under Section 7 (2) of the Act passed by the District Magistrate, Lucknow, which forbids the landlords not to let out to any one any accommodation which is or has fallen vacant or is about to fall vacant.
(3.) THE points that arise for consideration are whether any private agreement of tenancy between the landlord and the appellant in contravention of the general order passed by the District Magistrate under Section 7 (2) of the Act is or is not legal so as to confer rights on him, and whether the occupation of the accommodation by the appellant in pursuance of the agreement of tenancy is, in the eye of law, legal in the sense that the accommodation cannot be deemed to be vacant in respect of which a special order under Section 7 (2) of the Act can be passed by the District Magistrate. Another question for consideration shall be whether for enforcement of the special order under Section 7 (2) of the Act, can action be taken by the District Magistrate under Section 7-A of the Act for the dispossession of the appellant and to put the allottee, namely, Mohd. Ishaq, in possession thereof ?;