H. S. Bhatnagar v. Addl. District Judge — 1995 DIGILAW 897 (ALL)

JUDGMENT : R.H. Zaidi, J. The present petition is directed against the orders passed by Respondent Nos. 1 and 2 dismissing the application filed by the Petitioner u/s 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and refusing to declare the building in question as vacant and dismissing the revision filed by the Petitioner against the said order, respectively. 2. The facts as unfolded in the writ petition are that the Petitioner was owner and landlord of the building No. 38, Lytton Road, Dehradun (hereinafter referred to as the building in question), a portion of the said building was let out to Sri Diwan Singh, Respondent No. 3, who without the consent of the Petitioner illegally sub-let a portion in his occupation to Sri B.M. Puri, Respondent No. 4. It was on 3.1.78 that Sri B.M. Puri vacated the portion of the building in his occupation, the same has thus fallen vacant and on 5.1.78 Petitioner filed an application for release of the said portion on the ground of his personal need before Rent Control and Eviction Officer, Dehradun. 3. The application filed by the Petitioner was contested by Respondent No. 3 alone. He claimed himself to be the tenant-in-chief of the building in question and contended that the said portion was allotted in favour of the Respondent No. 4 in the year 1970. He contended that on vacating by Respondent No. 4 of the said portion, there arose no vacancy within the meaning of term used under the Act. 4. The Rent Control and Eviction Officer was pleased to hold that Respondent No. 3 was tenant-in-chief of the building in question and on vacating by Respondent No. 4 of the portion in his occupation, the same did not fall vacant. Having recorded the said finding, he refused to declare the vacancy in the said portion by his order dated 10.8.78. The validity of the order dated 10.8.78 was challenged before Respondent No. 1 by filing a revision u/s 18 of the Act. Respondent No. 1 was also pleased to dismiss the revision filed by the Petitioner vide judgment and order dated 15.6.82. 5. The validity of the order dated 10.8.78 was challenged before Respondent No. 1 by filing a revision u/s 18 of the Act. Respondent No. 1 was also pleased to dismiss the revision filed by the Petitioner vide judgment and order dated 15.6.82. 5. Learned Counsel for Petitioner has contended that admittedly Sri B.M. Puri, who was sub-tenant in the portion of the building in question has vacated the same, therefore, the said portion has fallen vacant and was liable to be declared as such. The view taken to the contrary by the authorities below was erroneous and illegal. It was also contended that the Petitioner never gave consent to Respondent No. 3 to sub-let the portion in favour of Sri B.M. Puri and in his knowledge, no order of allotment was passed by the Rent Control and Eviction Officer directing him to let out the said portion to Sri B.M. Puri. The order of allotment, if any, obtained by Sri Puri in collusion with Respondent No. 3 was not binding on him and on the basis of the said order, the occupation of Sri Puri cannot be said to be authorised. Learned Counsel for Respondent No. 3, on the other hand, urged that under the Uttar Pradesh Act No. III of 1947, the portion of the building could be sub-let. He contended that Sri Diwan Singh was admittedly tenant of the building and he sub-let the portion of the said building in favour of Sri Puri, Respondent No. 4 and Rent Control and Eviction Officer passed the order of allotment in favour of Sri Puri. On vacating by Respondent No. 4 Sri Puri, the portion in his occupation on 3.1.78, no vacancy arose and application for release of said portion filed by the Petitioner was rightly dismissed by the authorities below. 6. I have heard learned Counsel for the parties at length and have also carefully perused the record. 7. Admittedly, Petitioner is owner and landlord of the building in question. It is also not disputed that the portion of the said building was let out by Respondent No.3. Respondent No. 3 in turn let out a portion of the said building in favour of Respondent No. 4, who in the year 1970 had obtained an order of allotment from Rent Control and Eviction Officer in his favour with the concurrence of Respondent No. 3. Respondent No. 3 in turn let out a portion of the said building in favour of Respondent No. 4, who in the year 1970 had obtained an order of allotment from Rent Control and Eviction Officer in his favour with the concurrence of Respondent No. 3. The questions, which arise for consideration in the present case are; as to whether on vacating by Respondent No. 4 Sri B.M. Puri the portion of the building in his occupation on 3.1.78 has fallen vacant or not and as to whether Sri B.M. Puri was an unauthorised occupant of the portion of the building? 8. The question as to whether on vacation by the sub-tenant the portion of building in his occupation falls vacant or not is concluded by a Full Bench decision of this Court in Mohd. Ishhaq v. State Govt. of Uttar Pradesh 1966 ALJ 397, wherein it has been held: When a sub-tenant ceases to occupy, a vacancy arises again. We are concerned with occupation and not possession and it is irrelevant to consider the reversionary right of the tenant-in-chief. The right to occupation may revert to the tenant-in-chief, but the vacancy cannot be denied; the right of entering into occupation presupposes the existence of vacancy. That is the case, even when a tenant-in-chief vacates; the owner gets right to enter into occupation but does not mean that there is no vacancy. The portion in dispute thus fell vacant on 3.1.78. 9. The view taken by the authorities below to the contrary that portion of the building in question vacated by Sri B.M. Puri cannot be declared to be vacant, is manifestly erroneous and illegal. in view of the said decision, the judgment and order passed by the authorities below are liable to be quashed. 10. So far as the question of release of the portion of the building in question on vacation by Sri B.M. Puri is concerned, the Full Bench has directed that in the event the sub-letting was not valid, the Rent Control and Eviction Officer was not entitled to allot the said portion in favour of any person. Learned Counsel for the Petitioner has stated that sub-letting of the portion of the building in question was illegal and occupation of Sri B.M. Puri Respondent No. 4 was invalid and unauthorised. Learned Counsel for the Petitioner has stated that sub-letting of the portion of the building in question was illegal and occupation of Sri B.M. Puri Respondent No. 4 was invalid and unauthorised. Therefore, it will have to be seen as to whether sub-letting of the portion in question by Sri Diwan Singh Respondent No. 3 in favour of Sri B.M. Puri was valid or not? 11. Provisions of Section 7(3) of Uttar Pradesh Temporary Rent Control and Eviction Act, 1947 (U.P. Act III of 1947) and Section 3(a), (j), Section 11, Sub-clause (b) of Sub-section (1) as well as sub-section (4) of Section 12 and Sections 13, 14 and 25 of the Act (U.P. Act No. XIII of 1972), are relevant, which are quoted below: U.P. Act III of 1947 7. (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 District Magistrate previously obtained. U.P. Act XIII of 1972 3. (a) "tenant" in relation to a building means a person by whom its rent is payable, and on the tenant's death: (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of non-residential building, his heirs. Explanation--An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant; (b) "landlord" in relation to a building, means a person to whom its rent is or if the building were let, would be payable and includes, except in clause (g), the agent or attorney, of such person; 11. Prohibition of letting without allotment order.--Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued u/s 16. 12. (1) (b). Deemed vacancy of building in certain cases.--(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if: (a) ... Prohibition of letting without allotment order.--Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued u/s 16. 12. (1) (b). Deemed vacancy of building in certain cases.--(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if: (a) ... (b) he has allowed it to be occupied by any person who is not a member of his family, or 12(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of Sub-section (1) or Sub-section (2) or Sub-section (3) or Sub-section (3A) or Sub-section (3B) shall for the purposes of this Chapter, be deemed to be vacant. 13. Restrictions on occupation of building without allotment or release.--Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release u/s 16 and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part. 14. Regularisation of occupation of existing tenants.--Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement, shall be deemed to be an authorised licensee or tenant of such building. 25. Prohibition of subletting.--(1) No tenant shall sub-let the whole of the building under his tenancy. (2) The tenant may with the permission in writing of the landlord and of the District Magistrate sub-let a part of the building. Explanation.--For the purposes of this section: (i) where the tenant ceases, within the meaning of clause (b) of subsection (1) or Sub-section (2) to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part; (ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting. 12. Explanation.--For the purposes of this section: (i) where the tenant ceases, within the meaning of clause (b) of subsection (1) or Sub-section (2) to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part; (ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting. 12. From the perusal of the aforesaid statutory provisions, it is apparent that the present Act completely prohibited sub-letting of a building. However, sub-letting of a portion is permissible with the consent of the landlord and the other of allotment by the Rent Control and Eviction Officer as provided in sub-section (2) of Section 25. In his counter-affidavit, it has been stated by Respondent No. 3 that consent for sub-letting for a portion of the building in question in favour of Sri B.M. Puri Respondent No. 4, was not taken from the Petitioner. On the other hand, It has been stated that consent was taken from one Data Ram Kapoor, who was neither landlord nor owner of the building. He was stated to be brother of Bhagat Ram Kapoor, who at the relevant time is alleged to be the mortgagee of the building in question. Thus, the said consent cannot be said to be consent of the landlord. Further, the building is alleged to have been redeemed by the Petitioner in the year 1969, therefore, the Rent Control and Eviction Officer in view of settled law on the point had no Jurisdiction to issue order of allotment without concurrence of the Petitioner and in the name of Respondent No. 3. Thus, prima Jade, it appears that there was neither valid consent nor valid order of allotment with regard to sub-letting in favour of Respondent No. 4 Sri Puri. However, on this question, no finding has been recorded by the authorities below, therefore, the findings are required to be recorded on the following questions by the Rent Control and Eviction Officer. 13. Respondent No. 4 is alleged to have obtained the order of allotment from the Rent Control and Eviction Officer in the year 1970. However, on this question, no finding has been recorded by the authorities below, therefore, the findings are required to be recorded on the following questions by the Rent Control and Eviction Officer. 13. Respondent No. 4 is alleged to have obtained the order of allotment from the Rent Control and Eviction Officer in the year 1970. The Rent Control and Eviction Officer could allot a portion of the building and could permit the subletting in exercise of power of Sub-section (3) of Section 7 of the Uttar Pradesh Act No. III of 1947, the sub-letting was permissible with the consent of the landlord and by the order of Rent Control and Eviction Officer, therefore it will be seen as to : (1) Whether the Petitioner gave his consent to Respondent No. 3 to sub-let the portion of the building in favour of Respondent No. 4? (2) Whether the Rent Control and Eviction Officer has passed the order of allotment in accordance with law and with the consent of Petitioner? (3) in the event, the sub-letting is held to be valid, it will have to be seen as to whether on the enforcement of the Act, the occupation of the Respondent No. 4 over the portion of the building in question, was lawful and authorised? 14. In case the Rent Control and Eviction Officer comes to the conclusion that sub-letting of the portion of the building in question was illegal and the. possession of Sri B. M. Puri Respondent No. 4 over the same was unauthorised, he, after declaring the said portion as vacant, shall proceed to consider and decide the release application filed by the Petitioner in accordance with law. 15. For the aforesaid reasons, this matter requires to be sent back to the Rent Control and Eviction Officer, Dehradun for decision of the aforesaid questions in the light of the observations made above. 16. In view of the aforesaid discussions, the writ petition succeeds in part. The impugned orders passed by Respondent Nos. 1 and 2 are quashed, and the matter is sent back to the Rent Control and Eviction Officer, Dehradun for decision of the aforesaid questions in the light of observations made above after affording an opportunity of hearing to the parties. In view of the aforesaid discussions, the writ petition succeeds in part. The impugned orders passed by Respondent Nos. 1 and 2 are quashed, and the matter is sent back to the Rent Control and Eviction Officer, Dehradun for decision of the aforesaid questions in the light of observations made above after affording an opportunity of hearing to the parties. Since the matter is lingering on since 1978, it is desired that the Rent Control and Eviction Officer shall decide the aforesaid questions within three months from the date a certified copy of this order is furnished to him by the Petitioner.