K.K Mathew, J.— This is an appeal, by special leave, from a judgment and decree of the High Court of Allahabad, setting aside a decree passed by the Small Causes Court, Agra, reversing the decree passed by the Additional Munsiff holding that the order of allotment of the premises in question to the appellant was illegal and ultra vires.
2. The facts of the case are these. There are two shops owned by one Genda Puri (hereinafter called the “landlord”) in Agra City. One Kedarnath Tandon (“Tandon” for short) was a tenant of these shops till September 1966. Tandon intimated to the Rent Control and Eviction Officer, Agra (“Rent Control Officer” for short) on September 12, 1966 that he has vacated the shops and delivered possession of the same to the landlord. The rent of the shops was also paid by Tandon to the landlord upto that date sometime before September 20, 1966. The first respondent who got into possession of the shops after Tandon vacated the same, made an application in the prescribed form with the express consent of the landlord to the Rent Control Officer for allotment to him of the two shops on September 19, 1966. On November 15, 1966, the landlord revoked his consent for allotment of the shops to the first respondent and intimated to the Rent Control Officer that Tandon had not vacated the shops. Thereafter on December 20, 1966, the landlord intimated to the Rent Control Officer that the accommodation had fallen vacant. On January 6, 1967, the Rent Control Officer passed an order fixing February 2, 1967 as the date for consideration of the application for allotment made by the first respondent. On January 21, 1967, the appellant applied to the Rent Control Officer for allotment of the shops to him and the landlord consented to have them allotted to him. The Rent Control Officer passed an order allotting the two shops to the appellant as a nominee of the landlord on January 27, 1967. The first respondent applied for cancellation of the allotment order passed in favour of the appellant. That was rejected. Thereafter, proceedings were taken under Section 7-A of the U.P Act 3 of 1947 (hereinafter referred to as the “Act”) to eject the first respondent, and notice was issued to the first respondent to show cause why he should not be ejected. The first respondent then instituted the suit for a declaration that the order of allotment dated January 27, 1967 in favour of the appellant was illegal and ultra vires and praying that the appellant may be restrained by a permanent injunction from interfering with his possession.
3. The suit was contested by Defendants 1 and 2, namely, the appellant and the landlord. Their main contention was that the order dated January 27, 1967 allotting the two shops to the appellant was proper as, under Rule 4 of the Rules framed under the Act, if the Rent Control Officer failed to allot the shops within 30 days of the intimation of vacancy by the landlord, the officer was bound to allot the same to the appellant as the nominee of the landlord. It was also contended that the first respondent came into possession of the shops clandestinely by entering into an arrangement with Tandon, the previous tenant, and that the landlord never inducted the first respondent into possession or accepted him as his tenant.
4. The Additional Munsiff found that Tandon, the previous tenant, delivered possession of the two shops to the landlord on September 12, 1966 who on October 22, 1966 put the first respondent in possession of the same and that the first respondent became the tenant of the shops. He further found that the Rent Control Officer committed an error of law in not allotting the shops to the first respondent as the landlord had given his consent for allotting the shops to the first respondent although he revoked the consent later on and hence the allotment order passed in favour of the appellant was in contravention of the rules and without affording a reasonable opportunity to the first respondent of being heard. He, therefore, passed a decree in favour of the first respondent holding that the order of allotment dated January 27, 1967 was illegal and restraining the appellant by an injunction from disturbing the possession of the first respondent.
5. On appeal by the appellant the Judge, Small Cause Court, reversed the decree passed by the Additional Munsiff and dismissed the suit.
6. The learned Judge, Small Cause Court, held that the landlord having intimated to the Rent Control Officer under Section 7(1)(a) of the Act on December 20, 1966 that the accommodation became vacant, the Rent Control Officer was obliged to pass an order of allotment in favour of the nominee of the landlord under Rule 4, as he did not pass an order of allotment within 30 days of the intimation, and therefore, the order of allotment in favour of the appellant passed on January 27, 1967 was valid and no occasion arose for considering the application of the first respondent for allotment, nor was there any necessity to hear the first respondent on his application. He, therefore, set aside the decree passed by the Additional Munsiff.
7. The High Court reversed this decree on the basis of its finding that the shops became vacant when Tandon delivered possession of the same to the landlord on September 12, 1966 and since the landlord did not intimate in writing to the Rent Control Officer about the vacancy within seven days after the accommodation became vacant, the Rent Control Officer was not entitled to act under Rule 4 of the Rules framed under the Act which alone obliged him to allot the shops to the nominee of the landlord in preference to the first respondent and, therefore, he committed a jurisdictional error in making the order of allotment to the appellant and the suit was therefore maintainable.
8. In order to appreciate the question which arises for decision, it is necessary to read Section 7(1)(a) of the Act as well as Rule 4 made under the rule-making power conferred under Section 17 of the Act. Section 7(1)(a) reads:
“Every landlord shall, within seven 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 tenancy or by release from requisition or in any other manner, whatsoever, give notice of the vacancy in writing to the District Magistrate.”
Rule 4 provides as under:
“Landlord's right to let.—If the landlord, receives no notice from the District Magistrate of the intimation given by the landlord under Section 7(1)(a), the landlord may nominate a tenant and the District Magistrate shall allot the accommodation to his nominee unless, for reasons to be recorded in writing, he forthwith allots the accommodation to other person.”
9. The point for consideration is whether the notice given by the landlord on December 20, 1966 can be said to be a notice as provided in Section 7(1)(a) of the Act and whether the provisions of Rule 4 were attracted to the facts of the case.
10. Section 7(1)(a) would show that the landlord was obliged to give notice in writing to the District Magistrate of the vacancy within seven days after the accommodation became vacant; and Rule 4 comes into play only on the fulfilment of that obligation by the landlord under Section 7(1)(a). The learned Additional Munsiff found that the accommodation fell vacant on September 12, 1966. In appeal, the Small Cause Court assumed that Tandon vacated the shops on September 20, 1966. Whichever date is taken as the date on which the accommodation became vacant, the landlord did not give notice in writing about the vacancy within seven days after the accommodation became vacant as the notice was given only on December 20, 1966. It is only if the landlord gives the notice in writing of the vacancy within the time specified in Section 7(1)(a) that Rule 4 would come into operation. In other words, notice in writing within the time specified in Section 7(1)(a) intimating that the accommodation has become vacant is a condition — precedent to the exercise of jurisdiction under Rule 4. The landlord cannot, without complying with the provisions of Section 7(1)(a), claim that the Rent Control Officer shall allot the premises to his nominee. It is therefore clear that the Rent Control Officer went wrong in thinking that Rule 4 obliged him to allot the premises to the nominee of the landlord as he did not make the allotment within 30 days of the receipt of the notice. As the Rent Control Officer allotted the premises to the appellant on the basis that Rule 4 obliged him to do so, and, as we hold that rule did not come into play since the landlord did not give notice in writing within seven days after the accommodation became vacant, the Rent Control Officer committed an error of jurisdiction in allotting the premises to the appellant by his order dated January 27, 1967. The High Court was, therefore, right in holding that the order was ultra vires the power of the Rent Control Officer, and that the proceedings to evict the first respondent under Section 7-A were incompetent. In these circumstances we would direct the Rent Control Officer to consider the application filed by the first respondent on September 19, 1966 for allotment of the shops to him as also the application of the appellant for the same purpose, after giving them an opportunity of being heard, and pass the proper order, and in the light of that order take any proceedings, if necessary, under Section 7-A of the Act.
11. In the result, we modify the decree of the High Court to the extent indicated and allow the appeal to that extent but dismiss it in other respects. We make no order as to costs.