Amiya Devi v. Rent Control Officers — 1972 DIGILAW 348 (ALL)

ORDER Hari Swarup, J. - Feeling aggrieved by an order of allotment, the two Appellants instituted a writ petition in this Court. The same having failed, they have come up in appeal. 2. The first Appellant Smt. Amiya Devi is the landlady of the house in dispute. P.N. Biswas, Appellant No. 2 is a tenant in this house under an order of allotment dated 14th August, 1958. According to Biswas, some years back at the request of a neighbour, he temporarily gave a part of the house to L.R. Ghosh, Respondent No. 2. He was occupying two rooms on the ground floor and was sharing the common bath-room and the latrine. After some years on 21st May, 1962, Biswas gave notice to Ghosh that he was a licensee and asked him to vacate the premises. Ghosh, Respondent No. 2, applied before the Rent Control Officer for allotment of the portion which was in his possession. After considering the report of the Inspector, the Rent Control Officer on 2nd June, 1962, made on order of allotment of the portion in favour of Ghosh. It appears that the case of Ghosh was that he was in possession of the entire ground floor and also of the third storey. As such the order of allotment mentioned this as the accommodation to which it related. Having obtained this allotment order, Respondent No. 2 replied on 12th June, 1962, to Biswas Appellant intimating that he was a tenant under an order of allotment and was not liable to vacate the accommodation. 3. Biswas thereupon filed an objection to the allotment order before the Rent Control Officer on 13th June, 1962. The landlady also filed objections on 16th June. 1962. The Rent Control Officer however dismissed them by his order dated 13th August 1962. The Rent Control Officer found: 1. that ever since the allotment of the house in 1958, Sri Biswas, the tenant, did not require the entire house and had allowed Mr. Ghosh to occupy the ground floor thereof; 2. that the tenant voluntarily gave possession of the ground floor to Sri Ghosh; 3. that of the last about four years two families had been residing in this house and so the accommodation was split up into two separate accommodations; 4. that the landlady never objected to the continuance of Sri Ghosh in the house during this period; 5. that the tenant voluntarily gave possession of the ground floor to Sri Ghosh; 3. that of the last about four years two families had been residing in this house and so the accommodation was split up into two separate accommodations; 4. that the landlady never objected to the continuance of Sri Ghosh in the house during this period; 5. that there was a clear vacancy of the portion in occupation of Sri Ghosh and that the ground floor was in possession of Sri Ghosh; 6. that the accommodation in possession of Sri Ghosh was an independent one and was utilised as such; and 7. that the landlady having raised no objection to the continuance of the two families in the house, there was a presumption that she acquiesced in this arrangement. 4. Before the learned single Judge it was submitted on behalf of the Appellants that in the present case no vacancy occurred so as to give jurisdiction to the Rent Control Officer to make an order of allotment. In the alternative, it was urged that the impugned order splits up the accommodation which the Rent Control Officer was not entitled to do. The learned Judge repelled both these submissions. 5. We are in agreement with the learned single Judge that the findings of fact recorded by the Rent Control Officer are based on adequate materials and cannot be interfered with in a writ petition. The case shall have to be decided on this basis. From those findings it appears that soon after the Appellant Biswas was allotted this accommodation he sublet it to Respondent Ghosh and that the landlady acquiesced in this arrangement. It is equally clear that for this arrangement the tenant had not obtained the permission in writing of the landlady or of the District Magistrate. The question is whether in these circumstances a vacancy could be held to have arisen and if so, did the Rent Control Officer have jurisdiction to make an order of allotment of a portion of the accommodation. 6. Section 7 of the U.P. (Temp.) Control of Rent and Eviction Act, 1947, provides: 7(I)(a). The question is whether in these circumstances a vacancy could be held to have arisen and if so, did the Rent Control Officer have jurisdiction to make an order of allotment of a portion of the accommodation. 6. Section 7 of the U.P. (Temp.) Control of Rent and Eviction Act, 1947, provides: 7(I)(a). 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 a tenancy or by release from requisition or in any other manner, whatsoever, give notice of the vacancy in writing to the DM. (b) Every tenant occupying accommodation shall within seven days of vacation of such accommodation or ceasing to occupy it give notice thereof in writing to the DM. (c) The notice given Under Clause (a) or (b) shall contain such particulars as may be prescribed. (2) The DM may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant. (3) No tenant shall sublet any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the DM previously obtained. 7. Section 3 of the Act confers on the landlord right to file a suit for the eviction of the tenant from any accommodation without the permission of the DM on, inter alia, the ground that the tenant has on or after the 1st day of October, 1946, sublet the whole or any portion of the accommodation without the permission of the landlord. It may here be said that the Rent Control Act, 1947, was by Section 1(3) thereof, deemed to have come into force on the 1st day of October, 1946. 8. In Dr. A.C. Dass v. T.T.O. 1962 AWR 455 it was held that if a tenant sublets a portion of the accommodation a vacancy arises and that an order of allotment could validly be issued and directed to the tenant-in-chief. But this decision stands overruled by a Full Bench in Mohd. Ishaq v. State Government 1966 AWR 520 . In this case Desai, C.J. held that the decision in A.C. Dass case that an order of allotment can be issued to the tenant-in-chief was erroneous. But this decision stands overruled by a Full Bench in Mohd. Ishaq v. State Government 1966 AWR 520 . In this case Desai, C.J. held that the decision in A.C. Dass case that an order of allotment can be issued to the tenant-in-chief was erroneous. In his opinion, a vacancy does arise when a portion of the accommodation is sublet and an order of allotment, if at all, can be issued to the landlord. In his opinion, in such a contingency, the order of allotment could relate to the entire accommodation. With respect to a case where only a portion is sublet, the learned Judge observed that Section 7(2) of the Rent Control Act authorises the Rent Control Officer to direct the landlord "to let or not to let" the accommodation. He observed that in view of the ban imposed by Sub-section (3) it must be held that the word "let" does not include "sub-let" and the DM cannot order a landlord, i.e., the tenant-in-chief to sub-let. It was held that the provision in Sub-section (3) is mandatory while that in Sub-section (2) is only empowering. The provision in Sub-section (2) is of a general nature and that in Sub-section (3) of a special nature being connected only with sub-letting. Therefore the provision in sub-S, (3) prevails over that contained in Sub-section (2). 9. The opinion of Desai, C.J., was that on sub-letting a portion a vacancy arises. Section 7(1) and 7(2) are attracted but because Sub-section (3) prevails over Sub-section (2) in matters of sub-letting, no order of allotment could be passed against a tenant-in-chief, but such an> order could be directed against the landlord in respect of the entire accommodation on the footing that by illegal sub-letting the tenant will be deemed to have vacated the whole of the accommodation. 10. The majority consisting of Sahgal and Lakshmi Prasad, JJ. were of a different opinion. They held that on sub-letting of a portion no vacancy arises so as to attract Sub-section (2) of Section 7. It can give a right to the landlord to file a suit u/s 3 of the Act to evict his tenant-in-chief along with whom the sub-tenant will also go if the suit is decreed. But it will not be a case to attract Sub-section (2) of Section 7. It can give a right to the landlord to file a suit u/s 3 of the Act to evict his tenant-in-chief along with whom the sub-tenant will also go if the suit is decreed. But it will not be a case to attract Sub-section (2) of Section 7. The whole of the accommodation has to be vacated by the tenant-in-chief before the DM can pass an order Under Sub-section (2) of Section 7. Sahgal, J. disagreed with Desai, C.J. that a vacancy of a portion also has to be treated as a vacancy of the accommodation so as to attract Section 7(2). 11. Lakshmi Prasad, J. was of the same opinion. He held that there is no basis for holding that the expression "let" as used in Section 7(2) includes the expression "sub-let" and there is no justification for inferring that by virtue of the power conferred by Section 7(2) the DM is entitled to pass an order for sub-letting the accommodation. His Lordship observed that another difficulty is created because of the provision of Section 7(3) to the effect that no tenant shall sub-let any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the DM previously obtained. If it be held that where a tenant ceases to occupy an accommodation by sub-letting it; the DM gets power u/s 7(2) to issue an order to the tenant to sub-let the accommodation to a person named in the order, that interpretation would obviously run counter to the rule of prohibition contained in Section 7(3). 12. Both Sahgal and Lakshmi Prasad, JJ. remarked in their opinion that the question referred to the opinion of the Full Bench assumed that the whole of the accommodation has been vacated by the tenant by sub-letting and that it further assumed that a vacancy had arisen and that they proceeded to answer the question on that footing. This Full Bench decision is also an authority for the proposition that when a tenant sublets a portion of the accommodation, a vacancy does not arise within meaning of Section 7(2). The decision of G.C. Mathur, J. in R.A. Agarwal v. State of U.P. 1964 AWR 260 is more in point. This Full Bench decision is also an authority for the proposition that when a tenant sublets a portion of the accommodation, a vacancy does not arise within meaning of Section 7(2). The decision of G.C. Mathur, J. in R.A. Agarwal v. State of U.P. 1964 AWR 260 is more in point. According to this decision, if sub-Sections (1) and (2) of Section 7 were applicable to an accommodation vacated by a sub-tenant, then Sub-section (3) would become redundant as in that ease the DM could allot an accommodation to any person and no question will arise Under Sub-section (3) of seeking the permission of the DM and of the Landlord. To an accommodation vacated by a sub-tenant the provisions of Sub-section (3) of Section 7 apply and the provisions of Sub-sections (1) and (2) of that section will not apply. 13. That position will prevail all the more when the question arises at the time when the tenant sublets a portion for the first time. In that situation Section 7(2) does not apply and the Rent Control Officer cannot pass an order of allotment. As already seen Sub-section (3) requires the co-existence of two factors before a sub-tenancy can validly be created. One is the written permission of the landlord and the other is the written permission of the District Magistrate. An order of allotment Under Sub-section (2) of Section 7 is a direction to the landlord to let the accommodation. Its validity is independent of the volition of the landlord. Further, if the legislature intended that an order of allotment could be passed in a case of sub-letting the language of Sub-section (3) would not have been so markedly different than the language of Sub-section (2). Under Sub-section (2) the DM is authorised to pass an order directing the landlord to let or not to let an accommodation while Under Sub-section (3) he has been given merely the power to permit a tenant to sub-let. Clearly the sub-letting contemplated by Sub-section (3) is at the initiative of the tenant and is dependent upon the concurrence of the landlord and of the DM. The DM cannot unilaterally by an order of allotment create a valid sub-tenancy. This would show that the DM has no power to make an order of allotment in relation to a portion of an accommodation even where the tenant has illegally sub-let the portion. The DM cannot unilaterally by an order of allotment create a valid sub-tenancy. This would show that the DM has no power to make an order of allotment in relation to a portion of an accommodation even where the tenant has illegally sub-let the portion. In such a situation the tenant in-chief can be prosecuted u/s 8 of the Act for violating Section 7(3), while the landlord can resort to his right to sue for the eviction of the tenant Under Clause (e) of Section 3 on the ground of sub-letting without his permission. In our opinion, even if from a highly technical point of view a notional vacancy arises when a tenant sub-lets a portion, such notional vacancy will not attract Section 7(2). No order of allotment can be passed in respect of such a portion. 14. In the present case the allotment order dated 2-6-1962 related to the ground floor of this house along with the roof and the third storey. Clearly it was in respect of a portion of the accommodation namely the entire house in dispute, which had been allotted to the Appellant Biswas by an allotment order passed in 1958. The impugned allotment order being in respect of a portion of the accommodation was invalid. 15. In the result the appeal succeeds and is allowed with costs. The judgment of the learned single Judge is set aside. The writ petition is allowed. The allotment order dated 2-6-1962 is quashed. The order dated 13-8-1962 reaffirming the order of allotment is also quashed.