JUDGMENT B. Mukerji, J. - This is an appeal against the decision of a learned Single Judge made in a writ petition filed under Article 226 of the Constitution, whereby the first two respondents prayed that an allotment order dated the 7th of May 1958 by the Rent Control and Eviction Officer, Kanpur, be set aside. The learned Single Judge by his judgment under appeal allowed the writ petition and quashed the order of the R.C. and E.O. whereby he had made the allotment of the premises in favour of the appellant. 2. In order to be able to appreciate the controversy that arose between the parties it is necessary to state a few facts. A premises bearing municipal No. 3 situated in Gumti No. 5, Kanpur, contained certain shops as also certain residential portions. The residential portions of the premises were confined to the first floor and were in the occupation of the landlords while the ground floor was let out for purposes of shops and respondent No. 4 Vir Bhan was one of the tenants of one of the shops which was the subject matter of the allotment which was quashed by the learned Single Judge. Vir Bhan carried on business in the shop along with his brother Kartar Chand, the appellant and the shop was in the possession of Vir Bhan originally from the 21st of January 1949 under an allotment. Vir Bhan at some stage was alleged to have agreed to pay a rent of Rs. 45 per mensem for the premises though later on Vir Bhan in 1950 applied under Section 5 of the R.C. and E. Act to the First Civil Judge of Kanpur for fixation of rent. The learned Civil Judge by his order dated the 31st January 1951 fixed the rent at Rs. 15 per mensem from the date of the occupation of the premises. Mahesh Prasad and Hira Lal who were the landlords of the premises felt aggrieved by the order of the First Civil Judge fixing the rent at Rs. 15 per mensem and therefore they came up in revision to the High Court. On the 29th of February 1959 this Court allowed the revision on the ground that the Civil Judge had no jurisdiction to make the order fixing the rent for the case could be heard by a Munsif. 3. 15 per mensem and therefore they came up in revision to the High Court. On the 29th of February 1959 this Court allowed the revision on the ground that the Civil Judge had no jurisdiction to make the order fixing the rent for the case could be heard by a Munsif. 3. On the 10th of September 1957 a notice was served on Vir Bhan by the landlords under Section 3 (a) of the Act and the landlords also served Vir Bhan with a notice under Section 106 of the T. P. Act sometimes in September 1957. The landlords thereafter filed a suit for arrears and for ejectment against Vir Bhan. This suit was numbered 1210 of 1957. Vir Bhan filed a written statement to this suit on the 4th of March 1958 and in this written statement Vir Bhan specifically stated that he had vacated the premises sometimes in 1954. Vir Bhan further stated that Kartar Chand, the appellant, had since then been carrying on business in the shop although there was no valid permission in Kartar Chand's favour. 4. In 1958 Kartar Chand, the appellant, made an application for allotment of the shop in his favour. The landlords filed objections to the allotment being made to Kartar Chand. Indeed, the landlords applied for allotment of the shop to themselves claiming the benefit of R. 6 of the rules framed under the Act. Before the R.C. and E.O. the controversy that raged centred round the question whether or not there was vacancy or whether or not Vir Bhan had otherwise ceased to occupy the premises because in case there was no vacancy or "no ceasing to occupy" by the tenant or "no termination of a tenancy" the power to make an allotment could not be there in the R.C. and E.O. The R.C. and E.O. went into the question with care and looked into all the material that was placed before him including the report of the Inspector and the R.C. and E.O. came to the conclusion that Vir Bhan had actually left the shop, never to return to it again, and that he had taken another shop and had been carrying business there separately. The R.C. and E.O., therefore, exercised the power of making an allotment and he did make the allotment as has been pointed out earlier by us. 5. The R.C. and E.O., therefore, exercised the power of making an allotment and he did make the allotment as has been pointed out earlier by us. 5. The learned Single Judge took the view that there was no vacancy, inasmuch as, it could not be held in the circumstances of the case that Vir Bhan had actually ceased to occupy the premises. The learned Single Judge, therefore, set aside the order of allotment holding that the order was in a sense without jurisdiction. The question that has fallen for our determination is whether the learned Single Judge was right in holding that there was no vacancy. It is important in this connection to notice the specific words used by the legislature in Sec. 7(1) (a) of the Act. The relevant words are : "...................or by the tenant vacating it or otherwise ceasing to occupy it or by termination of a tenancy...................." In regard to the tenant the relevant things to notice in considering whether there is vacancy or not are his vacating the premises or otherwise ceasing to occupy it. In relation to the landlord qua the tenant what is to be seen is the termination of the tenancy, whether by efflux of time or by some other method by which, under the law, the landlord could terminate a tenancy. The word `vacant' has been defined in Sec. 2(h) of the Act but this definition is, to our mind, not very helpful for our present purpose inasmuch as it only enlarges, in a certain context, the meaning that can be attached to the word `vacant.' The word `vacant' is not necessarily a word of art, at any rate it is not to be Sec. 7(1) (a) of the Act. If the premises are "vacant" in the sense that they are in nobody's occupation either actual or sufficiently notional to relate, in reality, to actual occupation then the premises could not be held to be vacant. But if the situation was the converse there could be no difficulty in holding that the premises were vacant. If the premises are "vacant" in the sense that they are in nobody's occupation either actual or sufficiently notional to relate, in reality, to actual occupation then the premises could not be held to be vacant. But if the situation was the converse there could be no difficulty in holding that the premises were vacant. The right to retain the tenancy or even the intention to retain the tenancy by a tenant may not in every circumstance amount to the premises not being vacant within the meaning of Sec. 7(1) (a) of the Act, for the Act, in our opinion, was concerned with the actual state of affairs that prevailed rather than with hypothetical state of affairs. The other set of words which follow the words `vacating it' are "otherwise ceasing to occupy" and these words gave a fair indication of the fact that it is occupation - the physical possession and the desire to continue to possess physically that was the material circumstance that had to be considered in determining whether or not there was such a vacancy as could empower the R.C. and E.O. to make an allotment under Sec. 7(2) of the Act. 6. The circumstances of this case were that the man who was said to continue on the premises namely Vir Bhan himself had abjured all connection with the shop for he himself had said that he had vacated the shop in 1954 and it had further been found, as a fact, by the R.C. and E.O. that he was occupying another premises and doing business separately there. The landlords' claim to have the premises allotted to them also showed that even the landlords did not consider that Vir Bhan was in occupation of the premises in any sense of the word. The fact that the landlords gave a notice under Section 106 of the T.P. Act and thereafter filed a suit for the ejectment of Vir Bhan was further indicative of the fact that so far as the landlords were concerned there was no intention to let the tenancy of Vir Bhan subsist nor was there any desire on the part of the landlords to let Vir Bhan come back to the premises and continue to occupy it as before his departure. 7. 7. The view of the learned Single Judge that before there could be vacancy within the meaning of Sec. 7(1) (a) of the Act it was necessary that there should be such a complete withdrawal of interest by the tenant that even an unauthorised occupation of the premises by either a relation of the erstwhile tenant or any one else should also cease was, in our opinion, going much beyond the scope of `vacancy' contemplated by the Act. The learned Single Judge's opinion that neither the shifting of Vir Bhan from the shop to another shop and carrying on business there nor the termination of the lease in his favour by the notice under Section 106 of the T.P. Act was sufficient to give jurisdiction to the R.C. and E.O. to make another allotment in respect of the shop was not, in the circumstances noticed by us earlier, justified. 8. Mr. Bhargava appearing on behalf of the respondents has strenuously contended that in this particular case the R.C. and E.O. had acted mala fide inasmuch as he made the allotment of the premises in favour of Kartar Chand who was the real brother of Vir Bhan who had actually got into huge arrears and had, in order to cheat the landlords of their dues in respect of the rent, moved away to another shop leaving his brother Kartar Chand on the premises. In this connection it is necessary to notice that the civil court had fixed the rent at Rs. 15 per mensem and that the landlord's contention that the reasonable rent of the premises was Rs. 45 per mensem had not been accepted. It is further necessary to notice that the appellant Kartar Chand had made a firm offer to pay the entire arrears at the rate of Rs. 15 per mensem which had accumulated against his brother Vir Bhan even though, in law, he was not responsible to pay those arrears, and as an earnest of that offer he even offered to pay in cash a sum of Rs. 1,000. Under such circumstances it cannot be said that Kartar Chand was in league with his brother Vir Bhan or that he was being used as a pawn by Vir Bhan to cause loss to the landlords or that there was any mala fides in the allotment. Mr. 1,000. Under such circumstances it cannot be said that Kartar Chand was in league with his brother Vir Bhan or that he was being used as a pawn by Vir Bhan to cause loss to the landlords or that there was any mala fides in the allotment. Mr. Kackar who appeared for the appellant gave an undertaking before us that his client Kartar Chand would still pay up the entire arrears which were due against Vir Bhan at the rate of Rs. 15 per mensem before the R.C. and E.O. who could pay over the sum to the landlords. In view of what has been stated above by us particularly in view of what Mr. Kackar has undertaken to do on behalf of his client in respect of the arrears it can never be contended that there was any collusion between Kartar Chand and Vir Bhan or that the R.C. and E.O. acted mala fide in making the order of allotment. Apart from the question of the allotment having been made in favour of the brother of a person who was in arrears there was nothing else on which the bonafies of the R.C. and E.O. in making this allotment could even remotely be challenged. 9. For the reasons given above we feel unable to affirm the decision of the learned Single Judge which we set aside by allowing this appeal. The order of allotment which was made in favour of the appellant Kartar Chand by the R.C. and E.O. shall subsist unless it is hereafter withdrawn or cancelled in accordance with law. In the circumstances of the case we direct the parties to bear their own costs of this appeal.