JUDGMENT S.S. Dhavan, J. - This case involves two important questions of law (1) when is an accommodation "about to fall vacant" under Section 7(2) of the U. P. Control of Rent and Eviction Act, and (2) what is the legal effect of an order allotting an accommodation which the District Magistrate regards as "about to fall vacant"? Abdul Majid who is the "allottee" of the accommodation in dispute has filed a second appeal from the decree of the Civil Judge of Agra declaring illegal an order passed in his favour by the Rent Control and Eviction Officer, Agra, under Section 7 of the U. P. Control of Rent and Eviction Act (Commonly known as an Allotment Order), and directing the delivery of possession of the accommodation in dispute to the plaintiff-respondent Mukhtar Husain The plaintiff alleged in his plaint that he was a tenant of the accommodation of which one Purshottam Lal was the landlord; that Purshottam Lal filed a suit for his ejectment which was decreed; that before the decree could be executed Purshottam Lal sold the house to Jamaluddin (the second defendant in the suit); that he (the plaintiff) obtained the permission of the new owner to continue to live in the house as his tenant; that the first defendant Abdul Majid who happened to be the orderly of the Sub-Divisional Magistrate Aitmadpur, took advantage of his official position and applied for an allotment order in his favour by falsely alleging that the accommodation was lying vacant; that the allegation was discovered to be false on inquiry and the application for allotment ordered to be filed; that the first defendant made another application by repeating the same fads allegation; that this time the Rent Control Inspector wrongly reported that the accommodation had been vacated by the plaintiff who, however, had reoccupied it; that on the basis of this report the Rent Control and Eviction Officer passed an allotment order in favour of the first defendant and ordered the eviction of the plaintiff treating him as a trespasser; that the allotment was without jurisdiction as the accommodation was neither vacant nor about to fall vacant. The plaintiff asked for a declaration that the allotment order was illegal and also prayed for In injunction restraining the first defendant (the allottee of the impugned allotment order) from interfering with his possession. The plaintiff asked for a declaration that the allotment order was illegal and also prayed for In injunction restraining the first defendant (the allottee of the impugned allotment order) from interfering with his possession. During pendency of the suit the plaintiff was summarily evicted from the accommodation and therefore permitted by the Court to amend his plaint and ask for recovery of possession. 2. The appellant Abdul Majid resisted the suit and raised a number of pleas in defence of which only two require consideration in this appeal as no others were pressed before me. He contended that the older of allotment was within jurisdiction and valid because a decree for the ejectment of the plaintiff had been passed in favour of the landlord and therefore the accommodation was "about to fall vacant" with in the meaning of Section 7 of the U. P. Control of Rent and Eviction Act. He also contended that the suit was barred under Section 16 of the Act. The trial court accepted the defendant's plea that the accommodation was about to fall vacant when the order of allotment was passed and dismissed the plaintiff's suit. On appeal the learned Civil Judge reversed this finding and held that the accommodation was neither vacant nor about to fall vacant and consequently the order of allotment was without jurisdiction. He allowed the appeal and held the allotment order to be illegal, and passed a decree for possession in favour of the plaintiff. Abdul Majid has come to this Court in second appeal. The question in issue in this case are whether an accommodation can be regarded as "about to fall vacant" within the meaning of the Section 7(2) of the Act as soon as a decree for the ejectment of the tenant is passed by the Court, and secondly-assuming that it can be so regarded-whether an order allotting the accommodation in anticipation of the vacancy takes away the right of the landlord not to execute the decree and to permit the tenant to continue to occupy the accommodation. On the first question, Mr. Swami Dayal for the appellant argued that the mere passing of a decree for ejectment brings the accommodation within this sub-section and the District Magistrate acquires the jurisdiction to allot the accommodation to any person of his choice. On the first question, Mr. Swami Dayal for the appellant argued that the mere passing of a decree for ejectment brings the accommodation within this sub-section and the District Magistrate acquires the jurisdiction to allot the accommodation to any person of his choice. He relied on the words "has fallen vacant or is about to fall vacant", and argued that the phrase "about to fall vacant" must be given some meaning different from "has fallen vacant," otherwise it will be redundant. Counsel contended that the moment a landlord obtains a decree for the ejectment of the tenant the accommodation acquires the character of "about to fall vacant" and can be "allotted" by the District Magistrate. 3. Section 3 uses the words "about to fall vacant". They have not been defined in the Act. But some meaning must be given them because they determine, the limits of the District Magistrate's jurisdiction to pass an order of allotment under Section 7(2). The power under this section being in the nature of a statutory restriction on the landlord's right to dispose of his own property, can be exercised only if the conditions specified in the statute exist. An order of allotment can be made only if the accommodation vacant, or (ii) falls vacant, or (iii) is about to fall vacant. The word vacant presents no difficulty. But when is an accommodation deemed to be "about to fall vacant" as contemplated under Section 3 ? As these words have not been defined they must be given their ordinary meaning. But in determining their scope we must bear in mind a few elementary things. First the purpose of these words. The definition of vacant was enlarged by the Amending Act of 1954 which added the words "about to fall vacant". The preamble of the Amending Act is silent as to why these words were added but it is fairly clear. Before the Amendment, the power to make an order of "allotment" was limited to accommodation which was vacant. The District Magistrate could issue no direction to the landlord immediately on receiving information of an impending vacancy and had to wait till the accommodation fell vacant. This was inconvenient and the words "about to fall vacant" were added to enable him to make an allotment order in anticipation of a vacancy. The District Magistrate could issue no direction to the landlord immediately on receiving information of an impending vacancy and had to wait till the accommodation fell vacant. This was inconvenient and the words "about to fall vacant" were added to enable him to make an allotment order in anticipation of a vacancy. But it is important to note that the allotment itself can take effect only after the vacancy occurs. If it does not materialise the order becomes in fructuous. The words "about to fall want" enable the District Magistrate to anticipate a vacancy but not to create one. The right to create a vacancy-that is, to terminate the tenancy, continues to vest exclusively in the landlord (or the tenant) even after the addition of the words "about to fall vacant." Secondly, the phrase "about to fall vacant" adds no legal concept to the law of tenancy and creates no legal rights or obligations under that law which are not covered by the words "vacant" and "not vacant". An accommodation at a particular time is either vacant or not vacant. Vacant means available for, letting because there are no existing tenancy rights whereas not vacant means not available for letting because there are such rights. But an accommodation may be available for letting not immediately but on some l future date which is ascertained. For example, if the tenant has actually determined the tenancy by a notice under Sec, 106 of the Transfer of Property Act and started packing his belongings, the accommodation may be described in proper language as "about to fall vacant." But in law an accommodation is not vacant till it is actually vacant and the term "about to fall vacant" is a concept unknown to the law of tenancy: on particular date an accommodation i, either vacant or not vacant. 4. Thirdly and this principle follows from the second-the District Magistrate cannot make use of the phrase "about to fall vacant" as a weapon for violating existing rights under a tenancy. For example, if a tenant sends a communication to the landlord expressing his intention to quit but also stating that he has not made up his mind and the landlord forwards this communication to the District Magistrate, and the latter acting on this information makes an allotment" order, the order is with out jurisdiction. For example, if a tenant sends a communication to the landlord expressing his intention to quit but also stating that he has not made up his mind and the landlord forwards this communication to the District Magistrate, and the latter acting on this information makes an allotment" order, the order is with out jurisdiction. A mere intention to renounce cannot be treated by the District Magistrate as renunciation. Fourthly then the District Magistrate cannot invoke these words to take away the rights of the landlord which have been left untouched by the Act, such as the right to come to terms with the tenant, or waive the notice terminating his tenancy, or agree not to eject him. Fifthly-and this is in the nature of a general conclusion the phrase "about to fall vacant" can not be given a meaning which will convert it into a weapon in the hands of the District Magistrate for the arbitrary eviction of any tenancy. This will defeat the very purpose old the Act as stated in the Preamble namely, to prevent arbitrary eviction I shall summarise these principles. The words "about to fall vacant" whatever their meaning have the limited effect of saving an order of allotment made in anticipation of an impending vacancy from being ultra vires but do not empower the District Magistrate to create a vacancy against the wish of the landlord nor do they affect the right of the landlord to naive the notice terminating the tenancy or agree not to eject the tenant or not to execute a decree for eject merit against him. 5. I shall now consider the meaning of the words "about to fall vacant" in the light of principles enunciated above. I think it is not possible or even desirable to define them, for no definition is broad enough to cover every conceivable case which may arise in the future. Whether an accommodation is about to fall vacant is a question of fact in each case. Bearing in mind the fundamental principles enunciated above, the Court should interpret the words "about to fall vacant" within reason and common sense though their actual application depends upon the circumstances of each case. Broadly speaking the distinction between vacant and about to fall vacant is one of time. Bearing in mind the fundamental principles enunciated above, the Court should interpret the words "about to fall vacant" within reason and common sense though their actual application depends upon the circumstances of each case. Broadly speaking the distinction between vacant and about to fall vacant is one of time. About to fall vacant means that the vacancy is certain to occur in the near future and its occurrence does not depend on any intervening act of the landlord such as the execution of a decree for ejectment. 6. In any case, an accommodation is not necessarily about to fall vacant because the District Magistrate thinks, so, and if he wrongly concludes that it is about to fall vacant, the Court can interfere at the instance of a tenant whose tenancy rights have been violated or threatened and set aside the allotment order that the District 'Magistrate's conclusion was wrong. If the exercise of a power depends r upon the existence of a fact, the Court can enquire whether this fact existed or not, and if it finds that it did not, hold the exercise of the power, invalid. 7. In the present case, it is conceded that the only fact which could justify the conclusion of the District Magistrate that the accommodation was "about, to fall vacant" was the passing of a decree for ejectment against the tenant. But this fact alone could not have the effect in law of bringing the accommodation within the scope of "about to fall vacant". In Lachmi Narain v. Rent Control and Eviction Officer, Lucknow 1962 A.L.J. 213, Hon. Desai, C. J. and Hon. S. D. Singh, J. held that an accommodation cannot be said to be "about to fall vacant" simply because an ejectment decree had been passed against the tenant. I respectfully agree with this view as indeed I am bound to-though I prefer to give my own reasons for my conclusions. 8. For these reasons hold that the order of the District Magistrate was passed when the accommodation was neither vacant nor about to fall vacant and therefore ultra vires. 9. But more important than their meaning is the legal effect of the words "about to fall vacant" and of an order allotting the accommodation on the ground that it was about to fall vacant. Therefore I shall now consider the second question in this case. 9. But more important than their meaning is the legal effect of the words "about to fall vacant" and of an order allotting the accommodation on the ground that it was about to fall vacant. Therefore I shall now consider the second question in this case. Even assuming that an accommodation is about to fall vacant when the order of allotment in favour of the appellant was passed, what is its legal effect? I have indicated that these words have a limited effect they have an order made in anticipation of an impending vacancy from being ultra vires, but cannot create a vacancy unless and until the accommodation actually falls vacant. When the vacancy occurs the order of allotment is there to take effect. But meanwhile the landlord has the right to waive the notice terminating the vacancy or agree not to execute the decree for ejectment against the tenant, and these rights are not taken away by an order allotting an accommodation which is about to fall vacant. 10. In this case the landlord obtained a decree for the ejectment of the tenant. I have already rejected the argument that an accommodation must be regarded as about to fall vacant within the meaning of Section 7 when a decree for ejectment has been passed against the tenant. Even after the decree the ejectment of the tenant is not automatic. There are many intervening steps between the passing of such a decree and the ejectment of the tenant. An intervening act by the landlord is still necessary-namely, an application for the execution of the decree. The landlord is not bound to apply and may permit the execution to become barred by time. Even if the decree for ejectment brings the accommodation within the words "about to fall vacant" the District Magistrate cannot by making an order of allotment take away the option of the landlord to execute or not to execute the decree, nor his right to waive the notice terminating the tenancy and permit the tenant to continue to occupy the accommodation. In execution the parties may come to terms and the landlord agree for consideration not to eject the tenant. In execution the parties may come to terms and the landlord agree for consideration not to eject the tenant. A decree confers upon the landlord the right to eject the tenant with the aid of the Court, but the District Magistrate cannot change this right to an obligation and thereby enlarge his limited powers under Section 7(2) and eject the tenant whom the landlord has agreed to retain. He cannot issue a command to the landlord: "Thou shall execute the decree for ejectment." For these reasons I am inclined to hold that a landlord who obtains a decree for the ejectment of the tenant from an accommodation to which the U. P. Control of Rent and Eviction Act is applicable is en titled not to execute the decree, or to withdraw the execution proceedings and permit the tenant to continue to occupy the accommodation; and in that event the tenant will be entitled to continue in lawful possession and the District Magistrate is incompetent to pass an order allotting that accommodation to another person on the ground that "it is about to fall vacant" and if such an order has already been passed it will become ineffective. 11. The last question is whether the order evicting the respondent from the accommodation is legal. Mukhtar Hussain was summarily evicted from the accommodation by the Rent Control and Eviction Officer, in the exercise of his power under Section 7-A of the Act. But the power of summary eviction can be exercised only if (1) an order allotting the accommodation has been duly passed, and (2) the District 'Magistrate believes or has reasons to believe that any person has occupied the accommodation in contravention of the order. Neither of these two conditions existed in this case. The allotment order was passed when the accommodation was neither vacant nor about to fall vacant, and the respondent's occupation was lawful and not in contravention of any allotment order. On the contrary the allotment itself was in contravention of his tenancy rights. For these reasons, I hold that the order evicting the appellant in pursuance of the allotment order was without jurisdiction and illegal. 12. Lastly, learned counsel argued that the jurisdiction of the civil court to inquire into the validity of the allotment order was barred under Section 16 of the Act. I do not agree. For these reasons, I hold that the order evicting the appellant in pursuance of the allotment order was without jurisdiction and illegal. 12. Lastly, learned counsel argued that the jurisdiction of the civil court to inquire into the validity of the allotment order was barred under Section 16 of the Act. I do not agree. That section provides, "No order made under this Act by the State Government or the District Magistrate shall be called in question in any court." Thus only orders made under the Act are immune from the jurisdiction of the Court in other words, orders made in the exercise of powers conferred by the Act and within jurisdiction. It follows that an order without jurisdiction is not one made "under this Act" and not protected by Section 16. No other point was urged. 13. The appeal is dismissed with costs. The stay order passed by this Court is discharged.