Agarwala, J. - (1.) THIS is a special appeal from a judgment of a learned single judge of this Court on a matter arising under the Control of Rent and Eviction Act. The disputed accommodation consists of one room, one verandah and a kitchen on the ground -floor of a house. This accommodation belongs to the Appellant. It was first tenanted by some person and when the tenant left the house it was allotted to the Appellant himself. The allotment order is dated 19th of March, 1951.
(2.) SOME time thereafter the Appellant constructed room on the first floor. The Respondent Amarnath Srivastava then made an application to the Rent Control and Eviction Officer alleging that the Appellant had occupied the newly a constructed rooms on the first floor and had let out the room on the ground floor to a tenant by the name of Gaya Prasad. The Rent Control and Eviction Officer issued a notice to the Appellant to show cause why the accommodation should not be allotted Under Section 7 of the Control of Rent and Eviction Act. In answer to the notice the Appellant stated before the Rent Control and Eviction Officer that he had not let out the accommodation to any one, that he was himself occupying it and that it had not fallen vacant. The Rent Control and Eviction Officer without deciding the dispute in express terms passed an allotment order in favour of the Respondent Amarnath Srivastava. The order is in the form in which allotment orders are issued. It does not mention the facts which we have narrated above. It does not also show that the Rent Control and Eviction Officer applied his mind to the question raised by the Appellant whether the accommodation in question had fallen vacant and it records no finding whatsoever on that point. The Rent Control and Eviction Officer can make an order of allotment of an accommodation Under Section 7(2) of the Act only when an accommodation has fallen vacant within the meaning of that section. Unless therefore the Rent Control and Eviction Officer came to the conclusion that the accommodation had fallen vacant by its having been let out to another person as alleged the Respondent or otherwise, he had no jurisdiction to make the order of allotment in favour of the Respondent. The learned single Judge was of opinion that when the Rent Control and Eviction Officer made the allotment order it should be presumed that he had applied his mind to the question and had held that the accommodation had fallen vacant as it had been let out to Gaya Prasad as alleged by the Respondent. We think that we are not entitled to make these assumptions. Where the fact that an accommodation has or has not fallen vacant is in dispute between parties, it is the duty of the Rent Control and Eviction Officer before he makes an allotment to record a finding on the question, and unless he does that it cannot be said that he had applied his mind to the question or that he had acquired jurisdiction to make the order.
(3.) WE therefore allow the appeal and quash the order of allotment of the Rent Control and Eviction Officer.;