JUDGMENT H. N. Seth, J. - Zahural Haq and Khurshnood Ali, who claim to be the sitting tenants of shop No. 25, Zalfagarganj, Bareilly have filed this writ petition under Article 226 of the Constitution praying that an order dated 13th January, 1972 passed by the Rent Control and Eviction Officer, Bareilly declaring the shop as vacant be quashed. 2. According to the petitioners, respondents Nos. 3 to 7 are the landlord of this shop. They made an application under section 3 of the Rent Control and Eviction Act for obtaining permission to file a suit for petitioners' ejectment. The Rent Control and Eviction Officer rejected the application and his order was ultimately upheld by the State Government. In an anxiety to increase their business, the petitioners entered into a partnership agreement with one Amar Nath Ahuja. This partnership was reduced to writing and was registered with the Registration Department. Taking advantage of this fact the landlords moved an application before the Rent Control and Eviction Officer, stating that the petitioners were voluntarily passing on the shop to out- siders and that this matter may be enquired into. The Rent Control and Eviction Officer thereupon held an enquiry in which the petitioners were also heard. They pleaded that in order to carry on their business they have entered into a genuine partnership agreement with Amar Nath and in the circumstances it can not be said that the shop has fallen vacant. The Rent Control and Eviction Officer, however, came to the conclusion that there was no genuine partnership between the petitioners and Amar Nath and that the petitioners had passed on the shop to Sri Amar Nath illegally. In the result, he declared it to be vacant and directed the vacancy to be notified. 3. The petitioners contend that the aforesaid order passed by the Rent Control and Eviction Officer is arbitrary, illegal and erroneous. Material on the record clearly indicates that the shop has not been vacated by them. A copy of the partnership agreement entered into between the petitioners and Amar Nath Ahuja had been filed along with an affidavit and the Rent Control and Eviction Officer was not justified in not relying upon the same. 4. Landlord respondents have contested this petition. They contend that under the garb of partnership agreement the petitioners have in fact passed on the premises in dispute to Amar Nath. 4. Landlord respondents have contested this petition. They contend that under the garb of partnership agreement the petitioners have in fact passed on the premises in dispute to Amar Nath. The Rent Control and Eviction Officer was quite justified in coming to the conclusion that the shop in dispute had fallen vacant. There is thus no error in the impugned order. 5. It is clear that the Rent Control and Eviction Officer has passed the impugned order with a view to make up his mind whether or not he should proceed to make an order under section 7 (2) of the U. P. (Temporary) Control of Rent and Eviction Act 1947, that is whether he should make an order requiring the landlords to let the premises to some person or to release the same in their favour. The question, however, that arises for consideration is whether by making the impugned order, the Rent Control and Eviction Officer has impaired the right of the petitioner to remain in occupation of the shop, if in fact they have not vacated the same. 6. Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act authorises the Rent Control and Eviction Officer to make an allotment order requiring the landlords to let the accommodation to a person if the same has fallen vacant or is about to fall vacant. The fact that the accommodation has fallen vacant or is about to fall vacant, is a jurisdiction fact which must exist before the District Magistrate can make an allotment order. Normally before the District Magistrate passes an order under Section 7 of the Act he has to form an opinion whether or not, the accommodation in question has in fact fallen vacant. However, he cannot clothe himself with the jurisdiction to make an order under Section 7 of the Act merely by framing an opinion that the accommodation is vacant, if in fact it has not so fallen vacant. The Act nowhere empowers the District Magistrate to adjudicate a dispute concerning this fact. Mere framing of opinion by the District Magistrate that an accommodation has fallen vacant will not affect the rights of a sitting tenant who has not vacated the accommodation. The Act nowhere empowers the District Magistrate to adjudicate a dispute concerning this fact. Mere framing of opinion by the District Magistrate that an accommodation has fallen vacant will not affect the rights of a sitting tenant who has not vacated the accommodation. In case there is an apprehension that the District Magistrate, after wrongly helding that there is a vacancy, is going to interfere with the rights of a sitting tenant to occupy the accommodation, the sitting tenant can always initiate appropriate proceedings before a civil court and get the dispute concerning the vacancy determined. In my opinion this position has not altered merely because the District Magistrate expresses an opinion that the accommodation in dispute has fallen vacant after hearing the parties concerned, as has been done in this case. The opinion so framed continues to be the personal opinion of the District Magistrate, which does not have the effect of adjudicating the rights of any person. In the circumstances, merely because the District Magistrate thinks that the accommodation in dispute has fallen vacant and is available for making an order of allotment, it does affect the rights of the petitioners if their case that they have not actually passed on the shop to Amar Nash is correct. I am, accordingly, of opinion that the impugned order does not affect any legal right of the petitioners. If, in pursuance of that order the Rent Conrail and Eviction Officer proceeds to make an order under Section 7 of the Rent Control and Eviction Act and takes any steps for interfering with the right claimed by the petitioners, they can seek an appropriate remedy before a civil court after satisfying it that the condition precedent for the Rent Control and Eviction Officer to act under provision of Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act, does not exist. 7. In this view of the matter, I am of opinion that no case has been made out for exercising the extraordinary jurisdiction of this Court under Article 226 of the Constitution, at this stage. The petition, therefore, fails and is rejected. In the circumstances, the parties are directed to bear their own costs.