S.C. Manchanda, J. - (1.) THIS is a writ petition under Article 226 of the Constitution directed against the order of allotment dated the 29th November, 1962 and the order under Section 7A(iii) dated the 10th February 1963.
(2.) THE material facts giving rise to the petition are these. The Petitioner is the ex -tenant who was evicted under Section 7A(iii) of the Act. On the 30th September 1962 the opposite party No. 4 Messrs. Udai Ram Misri Lal applied that the accommodation is likely to fall vacant. This application was made to the District Magistrate and on the 5th of October 1962, the application was repeated to the Rent Control and Eviction Officer, On the 24th October 1962, the Inspector made his report on the basis of the statement recorded by the Petitioner as well as local enquiry. In the statement of the Petitioner recorded by him it was definitely stated that he would not vacate the shop in question and would start business in it when he finds a responsible servant. The local enquiries however revealed that the shop in question was lying closed under the lock of the Petitioner, but that he would vacate the premises provided the landlord foregoes the arrears for which the tenant is negotiating with him and some other person is prepared to pay up the arrears on his behalf. The Inspector therefore reiterated that "the tenant would certainly vacate the accommodation in the near future but due to his malafide intention he is not prepared to give his intention in writing". The Rent Control and Eviction Officer asked the landlord's verification on the report of the Inspector but the landlord contradicted what the Inspector had said about him. Thereupon the Rent Control and Eviction Officer without giving the Petitioner any opportunity made the allotment order on the 29th November 1962 in favour of Messrs Ram Niwas Pushkar Dutt opposite party No. 3. Thereupon, a tussle followed and a notice was issued to Petitioner under Section 7A(i) on the 11th December, 1962 to show cause why he should not be evicted by force. On the 17th December 1962, the Petitioner sent his reply by registered post. Several dates were fixed but the case was adjourned for one reason or the other to the 28th January 1963. On that day according to the Petitioner the case was called at 3.30 p.m. and he was informed that the orders would not be passed on that day. He later learnt that an order was passed calling upon him to vacate. Then a notice dated 30 -1 -1963 was issued calling upon him to vacate the shop within seven days. According to the Petitioner this notice was not served upon him and eventually on the 10th of February 1963 he was ejected with the help of police force. The short question is whether there was likely to be a vacancy. Mere locking of the premises, for as long as, the tenant likes does not per se create a vacancy. Nor can it be said therefrom that there is a likelihood of the accommodation falling vacant. The question whether accommodation is likely to fall vacant must depend to a large extent on the intention of the tenant. After the amendment in 1952 if accommodation is likely to fall vacant it could be directed to be let out; but even for this there must be material from which a reasonable person can draw the inference that the accommodation is likely to fall vacant. This necessarily means that the accommodation is likely to fall vacant in the near future. The prospect must be imminent and not remote. It is undoubtedly for the Rent Control ad Eviction Officer to determine whether an accommodation is likely to fall vacant but that cannot be decided merely on his ipse dixit. He has to have some scintilla of material. The opinion of the Inspector is hardly any material or evidence. The statement of the tenant showed beyond any shadow of doubt that there was no question of his ever vacating the premises. Suspicion, surmises and conjectures can never take the place of proof. The Inspector's report stood belied by the landlord, Therefore no weight whatsoever should at all, have been attached to that report. The tenant had unequivocally stated that he will never vacate the premises. It is difficult to see how any reasonable person could come to the conclusion that the house was likely to fall vacant. It is very easy to make such allegations, as were made by the Inspector in this case, but they must be substantiated before any reliance can be placed thereon. As there was no vacancy, no allotment order could have been passed and as such the eviction proceedings are entirely without jurisdiction.
(3.) FOR the reasons given above, the order of the Rent Control and Eviction Officer dated 29 -11 -1962, the formal order of allotment dated 1.12.1962 and the entire proceedings under Section 7A of the U.P. Act III of 1947 taken against the Petitioner in respect of the shop are quashed. The petition is allowed with costs.;