J.K. Tandon, J. - (1.) The dispute in this case relates to the ground floor of a house no. 78|298 situate at Anwarganj, Kanpur. It is used as a shop and was originally in the tenancy of one Narain Lal. Narain Lal, however, sub-let this shop earlier to Bhagwan Das and later, according to the petitioner, to him as sub-tenants. Since the time of the sub-lease Mohd. Shafi, the petitioner, claims to have been in possession of the shop, while Dulare Lal, who is respondent No. 3, occupied a patra only in front for the purposes of selling some miscellaneous articles. In August 1956, Narain Lal is said to have surrendered his tenancy to the landlady, Smt. Shanti Devi. Therefore, on 22nd August 1956 Mohd. Shafi applied to the Rent Controller for the allotment of the same accommodation in his favour. Dulare Lal, respondent no. 3, also applied to the Rent Controller for the accommodation to be allowed to remain with him but the Rent Controller after obtaining necessary report etc. confirmed the allotment in favour of Mohd. Shafi. Here it may be stated that earlier on 22nd August 1956 Mohd. Shafi had obtained an order from the District Magistrate on his application for allotment as follows: "Allotted to the applicant if not already allotted."
(2.) On 27th August 1957 Dularey Lal objected on the said order made in favour of Mohd. Shafi alleging that he was the sub-lessee of the shop from Narain Lal but he had admitted Mohd. Shafi also subsequently and that as sub-lessee he has a right to remain in possession of the shop which, therefore, was not vacant. These facts appeared from the record of the Rent Controller which had been sent for in this case. Upon the said objection having been filed the Rent Controller made fresh enquiry through the Rent Control Inspector and himself but rejected it on 24th November 1956. At the same time he made an order directing a notice under Sec. 7-A (i) to be issued against Dulare Lal. There was fresh enquiry by the Rent Controller but once again the Rent Controller rejected the objection of Dulare Lal and directed him to be evicted. Dulare Lal went up in revision to the Commissioner and the latter by his order dated 11th May 1957 upheld Dulare Lal's objection and set aside the order passed by the Rent Controller. Mohd. Shafi then filed the present petition impugning the order of the Commissioner aforesaid.
(3.) The main ground urged in this case is that the order of the rent Controller allotting the accommodation in favour of the petitioner was duly made under Sec. 7 (2), that there was vacancy of the accommodation and that he had the necessary jurisdiction to make the allotment order. There are other contentions also by the two parties in support of their respective cases but it is not necessary for the purposes of deciding this petition to refer to them here as the same can evidently be disposed of upon this ground alone. There is no dispute that Narain Lal was the principal tenant of the shop. It too is not challenged that Narain Lal made a sub-lease of the shop the difference in this respect only is that according to the petitioner he was the sub-lessee while according to Dulare Lal, he (Dulare Lal) was the sub-lessee and that he had admitted Mohd. Shaft also subsequently. There is no dispute, none at least has been suggested, that the sub-lease by Narain Lal was not in accordance with law. Another fact, which has been admitted, is that Narain Lal surrendered the lease in his favour and it was upon the surrender made by Narain Lal that Mohd. Shafi, came forward with his application for allotment of the accommodation. Petitioner's contention is that upon Narain Lal's making the surrender of the lease there arose a vacancy of the accommodation within the meaning of Sec. 7 of the U.P. Control of Rent and Eviction Act, 1917. Accordingly the Rent Controller was competent to allot the accommodation. Sec. 7 provides in clause (a) of sub-sec. (I). "Every landlord shall within 7 days after an accommodation becomes vacant by his ceasing to occupy it or by the tenant vacating it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever, give notice of the vacancy in writing to the District Magistrate." Sub-sec. (2) empowers the District Magistrate to require by general or special order a landlord not to let or let to any person any accommodation which is vacant or has fallen vacant or is about to fall vacant. There can be no doubt that the right of the District Magistrate to require any accommodation to be let out to any person arises where the accommodation is or has fallen vacant or is about to fall vacant. He will have no such right where the accommodation is neither vacant nor is about to fall vacant.;