JUDGMENT

Satish Chandra, J. - One Mohammed Shafi was the tenant of the accommodation in dispute namely, 97/318 Talwa-Mahal, Kanpur Nur Mohammed, the landlord, sued for the eviction of the tenant. The suit was decreed and the decree was upheld in appeal as well as in second appeal on 5th February, 1968. Shortly thereafter, on 14.2-1968 one Mohammad Sami, the present appellant, made an application for allotment of this house. The same was allotted to him on 19th February, 1968. The landlord filed objection but the same was dismissed. The landlord went up to the State Government but the revision also failed. The landlord then came to this Court under Article 226 of the Constitution.

2. The learned single Judge held that the outgoing tenant had neither given any notice of his intention to quit the premises nor had he delivered vacant possession of the premises to the landlord. It cannot hence be said that in law the premises fell vacant. The finding of the State Government that the premises had been let out by the landlord to Mohammad Sami were held to be arbitrary and purely conjectural. The learned Judge was of the opinion that the passing of an allotment order in favour of a person who has come in possession in an unauthorised manner was against the scheme of the Act, which disfavours possession of a vacant premises by non-allottee. It was also held that passing of an allotment order with out prior notice to the landlord was violative of the principles of natural justice inasmuch as the rights of landlord to let out the premises to a tenant of his choice are curtailed by an allotment order. On these findings the writ petition was allowed and the order of allotment as well as order dismissing the revision were quashed. Aggrieved the allottee has come up in appeal.

3. Section 7(2) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 authorises the District Magistrate to direct a landlord to let out to any person any accommodation which is or has fallen vacant or is about to fall vacant. The jurisdiction to make an order of allotment is dependent upon the creation of the vacancy. See Babulal v. Sheonath Das, AIR 1967 Supreme Court 1329. Sub section (l) of section of the Act indicates the circumstances in which an accommodation may become vacant, it has been provided that :

'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...... ..._...... .. give notice of the vacancy in writing to the District Magistrate."

The Act, therefore, contemplates that an accommodation can become vacant, either on account of the fact that the tenant has vacated it or has otherwise ceases to occupy it In the present case the finding of fact is that sown after the decree for ejectment became final on 5th February, 1966, the erstwhile tenant vacated the accommodation and informed the Rent Control and Eviction Officer that he has done so. It is true that the tenant did not send an intimation of his vacating the accommodation to the landlord, nor did he deliver possession directly to the landlord. Since the landlord does not dispute that the tenant had in fact vacated the accommodation and had engrafted the present appellant in its occupation, it is evident that the finding that the tenant had in fact ceased to occupy the accommodation was bases upon relevant material. So even if the tenant had not intimated the vacancy to the landlord or bad not delivered possession to the landlords, the accommodation would be vacant within meaning of section 7(2) of the Act so as to authorise the District Magistrate to pass an order of allotment, notwithstanding the tact that the tenant may not have absolved himself of the responsibility of giving back vacant possession of the premises to the landlord under the law.

4. The decision in Abdul Mazid v. Mukhtar Husain, 1965 A.L.J. 205, inapplicable in that case it was held that an accommodation cannot be s