Gulati, J. - (1.) THIS petition arises out of proceedings under the U.P. Temporary Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act).
(2.) THE petitioner is the tenant of House No. 7/7, Anand Swarup Quarters, Bengali Mohalla, Debradun of which the 5th respondent, Shrimati Kapuri Devi is the land lady. It appears that the petitioner was transferred to Meerut as Manager, Oriental Bank of Commerce Limited, Meerut. He, however, did not vacate the accommodation in question but retained his possession over it through one Shrimati Chandra Kala Devi who is said to be his distant relation and later on through his mother. He also paid a sum of Rs. 400.00 to the land lady as advance rent Rs. 10.00 per month. The 4th respondent, Sri K. D. Sharma applied for the allotment of the accommodation in his favour and the Rent Control and Eviction Officer by his order dated June 9, 1970 allotted the house to him. The allottee did not succeed in getting possession. He moved the Rent Control and Eviction Offi cer for necessary help. The Rent Control and Eviction Officer insti tuted an enquiry through an Inspector who reported that the accom modation was in possession of Shrimati Chandra Kala Devi where upon a notice was issued to her under Section 7-A(1) treating her to be an unauthorised occupant. When the Inspector visited the ac commodation again he found that Shrimati Chandra Kala Devi had vacated the house and in her place the petitioner's mother was resid ing there. The Rent Control and Eviction Officer passed an order directing the petitioner to vacate the accommodation failing which coercive measures should be taken to eject him and to put the allot tee in possession. The petitioner's revision application was dismiss ed by the Commissioner, Meerut Division, Meerut on September 30, 1971. Thereupon the petitioner approached the State Government under Section 7-F of the Act and the State Government has also re jected the revision. The petitioner has now approached this Court under Article 226 of the Constitution. Under Section 7(2) of the Act District Magistrate has been em powered to allot an accommodation to a prospective tenant, if the accommodation has fallen vacant or is about to fall vacant. No al lotment order can obviously be passed if there is no vacancy actual or expected. The question that arises is as to whether in the instant case there was actual or expected vacancy. Under Section 7 (1) (a) every landlord is required to report a vacancy to the District Magis trate and likewise under clause (b) of Section 7 (1) every tenant is re quired to report the vacancy Admittedly in the instant case neither the tenant (petitioner) nor the landlady gave any such notice .to the District Magistrate . Admittedly again, the petitioner never vacate the accommodation. He retained possession through Shrimati Chan dra Kala Devi who is a distant relation of the petitioner and who acted as a caretaker during the temporary absence of petitioner from Dehradun and thereafter the petitioner's mother remained in occu pation. The question arises as to whether in these circumstances there was a vacancy actual or expected so that a valid allotment or der could be made in favour of a prospective tenant. The expression 'vacancy' as used in the Rent Control and Eviction Act has been the subject of interpretation in several cases. In Mahabir Prasad v. Kewal Krishna, 1953 A.L.J. 347 it was held: - "The word 'vacate' as used in the U.P. (Temporary) Control of Rent and Eviction Act, (III of 1947) means that the tenant should have ceased to occupy the accommodation with the intention of not coming back to it again."
(3.) AGAIN in Firm Saho Kumar Krishna Kumar v. Iqbal Ahmad and others, Special Appeal No. 2775 of 1959 decided on July 27, 1960 it was held: - "The fact alone that a tenant leaves the accommodation in his possession does not amount to his vacating the same. Mere with drawal from the accommodation unless it is accompanied further by the intention of not returning to it either himself or by his nominee will not be the vacancy of the accommodation. The idea of determination of the interest in which he held in occupation is implicit in the expression 'vacant'. If a tenant leaves the ac commodation and implements upon it a sub-tenant, a licensee or any other nominee of his he cannot be said to have vacated the accommodation. In the eye of law he continues to be in occupa tion though the actual occupation at the moment is that of his representative or nominee only." ;