BABULAL Vs. SHEONATH DAS

JUDGEMENT

(1.) The appellant is the tenant and respondents Nos. 2 and 3 are the landlords of non-residential accommodation in it part of a building in Mohalla Bulanala in the city of Varanasi. Respondent No. 1 is the allottee of the accommodation. Respondent No. 5 is the Assistant Rent Control and Eviction Officer Varanasi, authorised by the District Magistrate to perform his functions under the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the Act). On February 11, 1956 the landlords obtained a decree for ejectment of the tenant from the accommodation. As the tenant was about to vacate the accommodation, on February 20, 1957, respondent No. 5 passed order under S. 7 (2) of the Act directing the landlords to let the accommodation to respondent No. 1. On February as, 1957, the landlords and the tenant agreed that the tenant would continue to occupy the accommodation at an enhanced rent and would be liable to eviction in execution of the decree for ejectment in the event of his failing to pay the outstanding arrears of rent in certain stated instalments. As the tenant failed to pay the agreed instalments of rent, on May 21, 1957, the landlords in execution of the decree for ejectment obtained an order from the executing Court for the issue of a warrant for delivery of possession. In the meantime on February 23, 1957, proceedings were started against the appellant under S. 7-A (1) of the Act. By an order dated March 23, 1957, under S. 7-A (2) respondent No. 5 directed the tenant to vacate the accommodation by March 24, 1957. By another order dated December 2, 1957, under S. 7-A(3) respondent No. 5 directed S. O. P. S. Chowk to evict the tenant and put the allottee in occupation of the accommodation. The tenant filed a writ petition challenging the orders of respondent No. 5. The writ petition was dismissed and the tenant was relegated to a suit. A special appeal from this order filed by the tenant was also dismissed. On September 9, 1958, the tenant filed the present suit asking for a declaration that the orders passed by respondent No. 5 were without jurisdiction and for consequential reliefs. The trial Court dismissed the Suit. The appellate Court reversed this decree and decreed the suit. On second appeal, the High Court restored the decree of the trial Court and dismissed the suit. The tenant has now filed this appeal by special leave.

(2.) In this appeal the tenant challenges the orders passed by respondent No. 5 under sub-s. (2) of S. 7 and sub-sections (2) and (3) of S. 7-A of the Act. Section 7 (2) is in these terms:-

(3.) Under S. 7 (2), the District Magistrate can pass an order in respect of an accommodation which is or has fallen vacant or about to fall vacant. The accommodation must either be vacant nor about to fall vacant before he can pass the order under S. 7(2). If the accommodation is neither vacant nor about to fall vacant, when the order under S. 7 (2) is passed, the order is void and is without jurisdiction.