JUDGMENT Gopalji Mehrotra, J. - The Petitioner has claimed a writ of certiorari quashing the orders of the Rent Control and Eviction Officer Kanpur dated 12-5-1954 and 16-6-1954 and that of the State Government dated 31-1-1956. 2. The opposite party No. 4 is the landlord of the disputed premises in the city of Kanpur. The Petitioner states that he took the house on rent from opposite party No. 4 in the year 1939 and has been living in this house with his two sons Avadh Gopal and Raj Gopal and a number of other members of his family. As the Petitioner is an old and retired man the work of the family was mostly done by his eldest son Avadh Gopal Bhatnagar. The rent was also paid by him on behalf of the joint family, and the receipts were obtained in his name. The left wing of the house was in the occupation of Avadh Gopal and the rest of it was occupied by the applicant and other members of his family. Some domestic trouble arose between the father and the eldest son and Avadh Gopal Bhatnagar left Kanpur with his family. On 30-4-1954 due to the family dispute. Avadh Gopal sent a telegram to the landlord saying that he had vacated the premises in question. On the l0th of May, 1954 the Senior House Inspector inspected the premises and sent his report to the Rent Control and Eviction Officer about the vacancy of premises. The opposite parties Nos. 3 and 4 Sri Indra Kumar Labour Officer and the landlord approached the District Magistrate who by his order dated 12-5-1954 ordered the Rent Control and Eviction Officer to allot the house to Indra Kumar. The applicant, however, Bled his objection before the Rent Control and Eviction Officer, Kanpur, on 12-5-1954 which was rejected by him and he passed the following order on the application of opposite party No 3: In view of District Magistrate's directions, I allot the premises to the applicant whose need is more pressing. On 20-5-1954 the Rent Control and Eviction Officer sent a notice thereafter u/s 7A(1) to the Petitioner requiring him to appear before the; said officer on 31-5-1954 to show cause why he should not be forcibly evicted from the premises. On 20-5-1954 the Rent Control and Eviction Officer sent a notice thereafter u/s 7A(1) to the Petitioner requiring him to appear before the; said officer on 31-5-1954 to show cause why he should not be forcibly evicted from the premises. The Petitioner filed an application on 24-5-1954 before the Rent Control and Eviction Officer who by his order dated 16-6-1954 dismissed the applicant's objection and ordered him to deliver possession to the allottee by 28-6-1954. Against the aforesaid order of the Rent Control and Eviction Officer dated 16-6-1954 a revision was filed by the Petitioner before the Commissioner who admitted the same and stayed proceedings for eviction meanwhile. By his order dated 27-5-1955 he allowed the revision, set aside the order of the Rent Control and Eviction Officer but in view of the fact that the opposite party No. 3 had already got possession of half of the premises be maintained the possession over half, of the opposite party No. 3 and that of the Petitioner over the other half. The opposite party No. 3 then made a representation to the State Government against the order of the Commissioner u/s 7-F of the Rent Control and Eviction Act. The State Government by its order dated 31-1-1956 set aside the order of the Additional Commissioner and restored the order of the Rent Control and Eviction Officer, Kanpur, dated 16-6-1954 and directed the said officer to take necessary action to put the opposite party No. 3 in possession. In these circumstances the present petition was filed by the Petitioner in this Court on 14-2-1956. 3. Notices were issued to the opposite parties and counter-affidavits have been filed both on behalf of the State as well as the opposite party No. 3 the allottee. 4. There is not much dispute with regard to the facts of the case. It is not denied that the Petitioner along with his other son has been living in this premises for a considerable time. It is also admitted that the rent of the premises was being paid to the landlord by the eldest son of the Petitioner. The landlord treated the eldest son as the tenant. It is also not denied that the eldest son sent a telegram to the landlord that he was no longer willing to pay the rent and had terminated the tenancy. The landlord treated the eldest son as the tenant. It is also not denied that the eldest son sent a telegram to the landlord that he was no longer willing to pay the rent and had terminated the tenancy. It is also admitted that an approach had been made by the opposite party No. 3 to the District Magistrate who instructed the Rent Control and Eviction Officer to make an order of allotment and acting upon those instructions the Rent Control and Eviction Officer allotted the premises to the opposite party No. 3. The objections filed by the Petitioner were rejected. Thereafter proceedings u/s 7-A (3) were taken against the Petitioner. He further reiterated his objections and the objections were rejected by the Rent Control and Eviction Officer; but on revision the order was reversed and the possession of the Petitioner was maintained. 5. The stand taken by the Rent Control and Eviction Officer which is clear from the persual of the orders passed by him is that as the tenancy was admittedly in the name of the eldest son there was in the eye of law a vacancy as soon as the eldest son intimated that he had vacated the premises and had put an end to the tenancy and thus the Rent Control and Eviction Officer acquired jurisdiction to pass an order of allotment in favour of any suitable candidate. After considering the respective needs of the Petitioner who admittedly was living in that premises and that of the opposite party No. 3 he made the allotment in favour of the opposite party No. 3. It is also not seriously disputed that the effect of the order passed by the Rent Control and Eviction Officer will be that the Petitioner who has been living with his family along with his eldest son in this house since 1939 would be thrown out of the house and will have to make arrangements for some other accommodation. 6. Three point have been urged by the counsel for the Petitioner. Firstly he has attacked the order of allotment on the ground that it was not in fact passed by the Rent Control and Eviction Officer himself to whom the power has been delegated by the District Magistrate, but the allotment has been made at the instance of the District Magistrate. Firstly he has attacked the order of allotment on the ground that it was not in fact passed by the Rent Control and Eviction Officer himself to whom the power has been delegated by the District Magistrate, but the allotment has been made at the instance of the District Magistrate. Secondly it was urged that there was in fact no vacancy within the meaning of Section 7(1) of the Rent Control and Eviction Act and as such the Rent Control and Eviction Officer was not entitled to allot the premises to the opposite party No. 3. In short in this connection it was urged that though the tenancy was in the name of the eldest son he was in fact a tenant on behalf of the joint family. The rent was paid by the joint family through the eldest son. The Petitioner being on old and a retired man the actual work was done by the eldest son and all the members of the family were living in the premises as tenants. The fact that the eldest son in whose name the tenancy stood on behalf of the joint family had intimated that he was no longer willing to continue to be a tenant does not amount to the termination of the tenancy of the joint family. Nor was there in fact any vacancy and the order of allotment was thus without jurisdiction. Lastly it was also contended that the State Government had no power to interfere with the order passed' by the Commissioner. The power of the State Government is confined only to revise an order directing dispossession u/s 7-A. In the present case the order of the Commissioner had the effect of maintaining the possession of the present Petitioner and there was no order directing the dispossession of any person. 7. As regards the first question raised by the Petitioner, it was very strenuously contended by the Standing Counsel in reply that the order of allotment is an administrative order. It can even be passed at the instance of the District Magistrate. This Court in the exercise of its powers under Article 226 of the Transfer of Property will not interfere with such an administrative order. It can even be passed at the instance of the District Magistrate. This Court in the exercise of its powers under Article 226 of the Transfer of Property will not interfere with such an administrative order. He urges that cases where an order u/s 7 had been passed by the Rent Control and Eviction Officer it may not be possible for him to cancel such an order at the instance of the higher authority. But there is no bar to the Rent Control and Eviction Officer passing an order of allotment even at the instance of the superior authority. In the case where the Rent Control and Eviction Officer cancels his previous order of allotment at the instance of the District Magistrate the District Magistrate in fact exercises the appellate power and interferes with the early order of the Rent Control and Eviction Officer; but in the cases where the order at the first instance is passed by the Rent Control and Eviction Officer the power is exercisable by the officer who is competent to do so even on the recommendation of the District Magistrate. 8. It is not disputed that the order u/s 7(1) has been held to be an administrative order. Reliance was placed by the Standing Counsel on the case of Mamu Lal v. Chakradhar Hans 1952 AWR (H.C.) 279. Particular attention was drawn to the following observation at page 280 of the report: In the circumstances the power being merely administrative it cannot be said that if on further consideration the learned Magistrate thought it proper to revise his previous order he had no jurisdiction to do so. Our finding that the power was an administrative power also answers the third objection that an opportunity should have been given to the Plaintiff to show cause before the previous order passed by the Rent Control and Eviction Officer could be cancelled. An administrative or executive power has to be exercised always subject to the control of the superior officers, and we see no objection to the second order haying been passed at the directions of the District Magistrate. 9. But this Court can in the exercise of its powers under Article 226 of the Constitution interfere with an administrative order if it is passed by an authority which is not competent to do so or is otherwise without jurisdiction. 10. 9. But this Court can in the exercise of its powers under Article 226 of the Constitution interfere with an administrative order if it is passed by an authority which is not competent to do so or is otherwise without jurisdiction. 10. It was contended by the Standing Counsel that the cases where an order has been passed by the Rent Control and Eviction Officer but which is subsequently cancelled by him at the direction of the District Magistrate stand on a different footing from those cases where this allotment order itself is passed by the Rent Control and Eviction Officer himself on the direction of the District Magistrate. Section 7 gives power to the Rent Control and Eviction Officer to direct the landlord to let or not to let any accommodation. If that power is exercised not by the Rent Control and Eviction Officer himself but by the District Magistrate such an exercise of power cannot be sustained. If the Rent Control and Eviction Officer applies his independent mind and the only act done by the District Magistrate is that he directs the Rent Control and Eviction Officer to apply his independent mind it cannot be said that the order of the Rent Control and Eviction Officer is illegal; but where the Rent Control and Eviction Officer does not apply his independent mind but acts on the direction of the District Magistrate it is in fact an order passed by the District Magistrate himself. The authority cannot be permitted to do through the agency of a subordinate authority what he could not do himself. The test to my mind will be whether the order is one passed by the Rent Control and Eviction Officer or by the District Magistrate. 11. In the present case at the first instance when the order of allotment was passed by the Rent Control and Eviction Officer in favour of the opposite party No. 3 it was done under the directions of the District Magistrate. The application was made by the opposite party No. 3 to the District Magistrate. A report was called for and on the report the District Magistrate passed the following order: The applicant is an employee of J.K. Group who are owners of the house. The owners also request for allotment to him. Please allot the house to him. 12. The application was made by the opposite party No. 3 to the District Magistrate. A report was called for and on the report the District Magistrate passed the following order: The applicant is an employee of J.K. Group who are owners of the house. The owners also request for allotment to him. Please allot the house to him. 12. On this order of the District Magistrate the house was allotted to the opposite party No. 3. From this it is clear that what the Rent Control and Eviction Officer did was only that he carried out the directions of the District Magistrate. No doubt the District Magistrate has concurrent jurisdiction with the Rent Control and Eviction Officer to pass an order u/s 7 but in the present case it is the Rent Control and Eviction officer who passed the necessary order of allotment u/s 7 The vacancy of the accommodation is a condition precedent to the exercise of the power u/s 7 and the Rent Control and Eviction Officer who passes the order of allotment has to consider whether there is a vacancy so as to give him a power to pass an order u/s 7(1). From the circumstances pointed out it is clear that the Rent Control and Eviction Officer did not apply his mind at all to the question whether the premises were vacant or not before passing an order of allotment. It is true that when the objection, was filed by the present applicant, to the allotment the Rent Control and Eviction Officer after considering the matter came to the conclusion that in his opinion there was legally a vacancy as the tenant had informed the landlord and also when the Petitioner filed an objection in the proceedings u/s 7-A the Rent Control and Eviction Officer came to the same conclusion. But it cannot be said that at the time when the allotment order was passed the Rent Control and Eviction Officer applied his mind at all to the question of vacancy. The order of allotment was only administerial act done by him at the dictates of the District Magistrate. 13. But it cannot be said that at the time when the allotment order was passed the Rent Control and Eviction Officer applied his mind at all to the question of vacancy. The order of allotment was only administerial act done by him at the dictates of the District Magistrate. 13. The Standing Counsel, as I have already observed, has strenuously contended that the District Magistrate may not have power to direct the Rent Control and Eviction Officer to cancel his previous order but there is no illegality in his recommending to the Rent Control and Eviction Officer that he should allot the premises to a particular individual. His contention is that so long as the power which is an administrative power has not been exercised by the authority it may be open to the superior authority to ask him to exercise that power in a particular manner but after a power has been exercised it is not open to the authority to cancel its previous order at the dictates at the superior authority. As I have said above, the power has been given to the Rent Control and Eviction Officer to make an order of allotment. Before such an order is made he has to ascertain whether there is any vacancy or not and unless he applies his mind to that question it cannot be said, that he has any jurisdiction to pass any order u/s 7. If he makes an order without applying his mind to the question of vacancy and at the dictates of the superior authority he will not be deemed to have acted himself u/s 7 at all. 14. The next point which was urged by the counsel for the Petitioner was that the mere fact that the son had been paying rent and the tenancy was in his name and he intimated to the landlord that he was vacating it legally it does not constitute a vacancy. The Rent Control and Eviction Officer is not right when dealing with the objection filed by the Petitioner in not applying his mind at all to the question whether the tenancy was on behalf of the joint family and the Petitioner was also residing in that premises along with his other family members as a tenant or he was only a licensee of the tenant, his eldest son. I have persued the two orders of the Rent Control and Eviction Officer and in my opinion the Rent Control and Eviction Officer was of the opinion that if the tenant in whose name the tenancy exists intimates the landlord that he no longer wishes to continue the tenancy there will be in all cases legal vacancy and it is not open to any body else who is in actual occupation of the premises to put forth a claim that he was also living in the premises as a tenant and that the person in whose name the tenancy existed was a tenant in the representative capacity and on behalf of other members of the joint family. The Commissioner on the other hand has examined this aspect of the case and has come to the conclusion that the son was holding the tenancy in his representative capacity on behalf of the joint family. Mr. Dhawan has addressed two fold arguments in this connection. His contention is that at the earliest stage when an objection was filed by the Petitioner to the allotment order there is no specific mention of the fact that the tenancy was in favour of the joint family. It is true that the objection docs not in so many words state that, but in any case from the perusal of the two orders of the Rent Control and Eviction Officer it is clear that he has based his decision on the ground that in the eye of law there will be a vacancy as soon as the person in whose name the tenancy subsists intimates that he no longer continues to be the tenant. He has not applied his mind at all to the other question whether the tenancy could be treated to be in favour of the entire joint family even though it was in the name of one of the sons alone. The order of the Rent Control and Eviction Officer therefore on the face of it was erroneous inasmuch as he failed to consider the relevant matter in issue. 15. On the finding arrived at by the Commissioner which have not been controverted on fact on behalf of the opposite party it cannot be said that the possession of the Petitioner was either as a trespasser or as a licensee. 15. On the finding arrived at by the Commissioner which have not been controverted on fact on behalf of the opposite party it cannot be said that the possession of the Petitioner was either as a trespasser or as a licensee. He was in possession as a tenant the tenancy being of the joint family though in the name of the eldest son alone. 16. Lastly it was urged by the counsel for the Petitioner that Section 7-F of the Act gave no power to the State Government to interfere with the order of the commissioner unless it was an order directing a person to vacate any accommodation u/s 7-A. Section 7-F of the Rent Control and Eviction Act provides as follows: 7-F. The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3 or requiring any accommodation to be let or not to be let to any person u/s 7 or for directing a person to vacate any accommodation u/s 7-A and may make such order as appears to it necessary for the ends of justice. 17. Emphasis was laid on the words "or directing a person to vacate any accommodation u/s 7-A" in Section 7-F. There is no substance in this contention of the Petitioner. Under the provisions of Section 7-F the State Government can call for the records of any case. An application u/s 3 has been referred to in this Section 7F as a case. Further any proceeding u/s 7 has also been referred to as a case and similarly proceedings u/s 7-A have also been treated as independent proceedings, the records of which can be called for by the State Government. After the record of the proceedings u/s 7-A are called for any order can be passed by the State Government. This section deals with a case and not any order passed in a particular case. In a case u/s 3 the order may be passed either granting permission or refusing it. Similarly an order u/s 7 may be passed either directing the landlord to let or not to let any accommodation. This section deals with a case and not any order passed in a particular case. In a case u/s 3 the order may be passed either granting permission or refusing it. Similarly an order u/s 7 may be passed either directing the landlord to let or not to let any accommodation. Similarly an order may be passed in proceedings u/s 7-A directing the person in possession to vacate and failing his voluntarily vacating the premises an order directing his ejectment even with the help of the police may be passed. There is no provision u/s 7-A expressly providing for an order refusing to direct the person to vacate any accommodation. In certain circumstances the Rent Control and Eviction Officer may refuse to pass an order of ejectment of a person who is in possession; but the proceedings u/s 7-A are proceedings in which an order can be passed to vacate any accommodation and the proper construction of Section 7-F will therefore be that the State Government has been given power to call for the records of the case under Sections. 3, 7 and 7-A and after examination pass any order which appears to it necessary to meet the ends of justice. The State Government does not deal with specific orders passed under these sections but calls for the records of the entire case. As, however, I have held in favour of the Petitioner on the other two points the Petitioner is entitled to a relief of certiorari quashing the order passed by the State Government dated 31-1-1956. 18. I therefore allow this petition; but in the circumstances of the case the parties will bear their own costs.