V.D.Bhargava, J. - (1.) This is an application under Article 226 of the Constitution filed by four applicants who are sub-tenants. They had been occupying certain shops as sub-tenants. The landlord filed a suit against the tenant and the sub-tenants on the ground that the tenant had sublet the accommodation without his permission and thereafter there was a decree for ejectment of the present applicants but actually there was no ejectment and the decree was never executed. The applicants continued to be in possession. A notice purporting to be under Section 7A of the Moradabad Rent Control and Eviction Order was issued asking the applicants to show cause within seven days why they should not be ejected from the accommodation illegally occupied by them. The house had been allotted to opposite parties Nos. 4 and 5. Against the allotment order and the notices the applicants went up in revision to the Commissioner who refused to interfere. Aggrieved by the decision of the Rent Control and Eviction Officer as well as the Commissioner the applicants have come to this Court.
(2.) Two points have been urged in argument. Firstly the notice is invalid which is issued under Section 7A of the Moradabad Rent Control and Eviction Order which does not contain any such provision and therefore the notice itself appears to be invalid. It is further contended in this connection that the notice itself was also invalid because the District Magistrate had not delegated the power under Section 7A to the Rent Control and Eviction Officer and therefore even if this notice be presumed to have been served under Section 7A of the Rent Control and Eviction Act even then the notice is not good. Nothing has been shown on behalf of the State or the District Magistrate to satisfy me that this power had been delegated. On this account also the notice issued by the Rent Control and Eviction Officer would be bad.
(3.) The second ground on which the notice under Section 7A is contested is that the petitioners had never vacated the accommodations. They had been in possession as sub-tenants. True, there was a decree against them for ejectment but that decree was never executed and they had never physically vacated the shops and unless the decree was executed the accommodations cannot be said to be vacant. Neither any intimation was given by the landlord nor by the tenant that these accommodations were either vacated or were likely to fall vacant. In the circumstances the order of the Rent Control and Eviction Officer allotting the premises to other persons was premature. There is force in this argument and unless the premises is vacant or is about to fall vacant the Rent Control and Eviction Officer has no jurisdiction to allot it. I accordingly allow this application but in the circumstances of the case I make no order as to costs. Application allowed.;