Satish Chandra, J. - (1.) The Petitioners are the owners of bungalow No. 93, Civil Lines, Jhansi, popularly known as 'Judges House' The Petitioners demised this house with its appurtenant land to the State of Uttar Pradesh for the purpose of residence of the District and Sessions Judge by a lease deed executed on 30 -6 -1936 for a period of five years on a monthly rent of Rs. 125/ -. On expiry of this lease another lease was executed for a further period of five years on the same rent. A third lease deed for a period of ten years was executed on an enhanced rental of Rs. 145/ - per month. This expired in 1956 whereafter another lease deed was executed between the parties for a further period of ten years on a monthly rent of Rs. 159/ -. This lease expired on 30 -6 -1966. On 21 -5 -1966 the Collector Jhansi addressed a letter to the Petitioners enquiring whether they would be prepared to renew the lease for a further term of ten years on the existing terms and conditions and rent. The Petitioners on 6 -6 -1966 replied that they would be prepared to renew the lease on a rent of Rs. 4,200/ - per month for the house and 13 -1/2 acres of land appurtenant to it and alternatively, they can lease the house with one acre of land only on a rent of Rs. 490/ - per month. They also indicated that in case these alternative set of terms are not acceptable, the existing lease would be deemed to have been terminated after 30 -6 -1966 and the premises shall be handed over to them on 1 -7 -1966. This letter, therefore, contained a demand for vacant possession of the premises in 1 -7 -1966.
(2.) On 1 -7 -1966 the Rent Control and Eviction Officer, Jhansi, passed on order of allotment Under Sec. 7(2) of the Rent Control and Eviction Act of the premises in favour of Sri H.G. Shukla, who was the District Judge of Jhansi. It appears that Sri Shukla objected to the allotment of the house in his personal name. Thereupon another order was passed by the Rent Control and Eviction Officer on 7 -7 -1966 cancelling the order passed on 1 -7 -1966 and directing that the premises shall, after being vacated by the present occupant, be allotted to the District Judge of Jhansi.
(3.) This order of 7 -7 -1966 is challenged on the ground that it was passed without jurisdiction, because on that date the premises were neither vacant nor were about to fall vacant. For the Respondents, however, it is urged that the existing lease stood terminated by efflux of its period and the landlord had made a demand of surrender of possession. Under these circumstances, the premises were, in the eye of law, vacant. In Babulal v/s. Sheonath Dass, 1967 ALJ 236 (SC) the Supreme Court held: Under Sec. 7(2), UP (Temporary) Control of Rent and Eviction Act, the District Magistrate can pass an order in respect of an accommodation which is or has fallen vacant or is about to fall vacant. The accommodation must either be vacant or about to fall vacant before he jean pass the order Under Sec. 7(2). If the accommodation is neither vacant nor about to fall vacant, when the order Under Sec. 7(2) is passed, the order is void and is without jurisdiction. The question whether there was vacancy or whether the premises were 'about to fall vacant' is a jurisdictional fact and can be enquired into. The Rent Control and Eviction Act does not define the term "about to fall vacant", though Sec. 2, Clause (h) of the Act says that "vacant" where used with reference to any accommodation, includes an accommodation about to fall vacant an intimation whereof has been sent by the tenant or the landlord to the District Magistrate. This definition would indicate that the impending vacancy must be actual and factual and not merely notional. The intimation spoken of in the definition is about a definite intention to vacate the premises. It does not seem to contemplate an intimation of termination of the lease.;