Mootham, C.J. - (1.) THIS is an appeal against a judgment of a learned Judge of this Court dated the 25th January, 1955, dismissing a petition under Article 226 of the Constitution. The facts so far as they are material lie in a narrow compass. The Appellant is the owner of a shop in Sarrafa Bazar, Hathras, which has been in the occupation of one Dau Dayal, the first Respondent, for a number of years as the tenant of the Appellant. On the 12th January, 1953, the District Magistrate of Aligarh granted permission to the Appellant under Section 3 of the U.P. Control of Rent and Eviction Act, 1947, to file a suit against the first Respondent for his eviction from the shop. The first Respondent then applied to the Commr. under Sub -section (2) of that section to revise the order of the District Magistrate, and on the 17th March, 1953, the Commr. allowed the application and set aside the order of the District Magistrate. The Commissioner's order was in these terms: I do not think permission should have been granted to file suit for ejectment of the applicant who has been carrying on business in this shop for the last 16 years. I allow the revision application, cancel the order giving permission to file a suit for the ejectment of the applicant.
(2.) THE next step was that the Appellant submitted a petition to the State Government asking the latter, in exercise of its supervisory powers under Section 7 -F of the Act, to set aside the order of the Commr. and restore that of the District Magistrate. The State Government declined however to interfere. A Commissioner's jurisdiction in revision under the Act as it was in -force in 1953 was restricted to cases in which the District Magistrate had acted illegally or with material irregularity or had wrongly refused to act; he could not at the time the order was made interfere on the ground that he was not satisfied with the propriety of the District Magistrate's order. That however was clearly the ground on which he did interfere in the present case, and it is hardly disputed that the order which he made on the 17th March, 1953, was without jurisdiction. The learned Judge however dismissed the petition on the ground that the order of the Commr. had merged in that of the State Government which the Appellant had not challenged in the petition.
(3.) NOW Section 7 -F so far as is material provides that "The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3...and may make such order as appears to it necessary for the ends of justice", and we entertain no doubt that where an order has been made under this section it takes the place of or supersedes the order of the District Magistrate or the Commr., as the case may be, made under Section 3. The communication however which the Appellant received conveying the decision of the State Government reads thus: Lucknow dated 6 -7 -1953. Subject: Application against the order refusing permission to sue for ejectment of the tenant from the shop No. 125, Mursan Ward, Sarafa Bazar, Hathras, District Aligarh.;