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Allahabad High Court · body

2000 DIGILAW 909 (ALL)

BHAGWAS DAS v. ADDITIONAL DISTRICT JUDGE, AGRA

2000-07-13

SUDHIR NARAIN

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SUDHIR NARAIN, J. ( 1 ) THE petitioner seeks to quash the decree passed by the trial court for recovery of arrears of rent, ejectment and damages and the order of the revisional court dismissing the revision against the said Judgment. ( 2 ) BRIEFLY stated the facts are that respondent No. 3 is landlord of the shop in question of which the petitioner is tenant. He filed Suit No. 1268 of 1968 against the petitioner in the Court of judge Small Causes for recovery of arrears of rent, ejectment and damages with the allegations that the shop in question was constructed in the year 1987 and was - not governed by the provisions of U. P. (Control of Rent and Eviction) Act. 1947. The petitioner had illegally sublet the accommodation to the defendant Nos. 2 to 4. His tenancy was terminated by a notice which was served upon him on 7. 10. 1976 but inspite of service of notice he did not vacate the shop. The petitioner filed written statement and alleged that he did not sublet the accommodation or committed default in payment of arrears of rent. ( 3 ) THE shop in question was alleged to be governed by provisions of U. P. Act No. 3 of 1947. During the pendency of the suit, U. P. Urban Buildings (Regulation of Letting, Rent and eviction) Act, 1972 (in short the Act) came into force. The petitioner deposited the entire arrears of rent on the date of commencement of the Act in relation to the shop in question under Section 39 of the act and claimed that the suit was not liable to be decreed for eviction. The trial court found that the provisions of U. P. Act No. 3 of 1947 were not applicable on the date the shop in question was let out to the petitioner. The petitioner had sublet the disputed accommodation to the defendant Nos. 2 and 3 and was liable to be evicted on the ground mentioned under Section 20 (2) (e) of the Act as he had sublet to defendant Nos. 2 and 3 in contravention to the provisions of Section 25 of the Act. On these findings, the suit was decreed on 15. 10. 1973. The petitioner preferred a revision and the revision has been dismissed on 2. 9. 1977. These orders have been challenged in the present writ petition. 2 and 3 in contravention to the provisions of Section 25 of the Act. On these findings, the suit was decreed on 15. 10. 1973. The petitioner preferred a revision and the revision has been dismissed on 2. 9. 1977. These orders have been challenged in the present writ petition. ( 4 ) I have heard Sri Prakash Gupta learned counsel for the petitioner and Sri B. D. Mandhyan learned counsel for the respondents. ( 5 ) THE main thrust of the submission of learned counsel for the petitioner is that the petitioner was let out the shop in question when the U. P. Rent Control and Eviction Act, 1947 was not applicable and he was entitled to sublet the disputed accommodation to the defendant Nos. 2 and 3 without permission of the landlord. It is urged that the subletting which was legal at the time of letting cannot be treated as illegal after the provisions of Act No. 13 of 1972 were made applicable to the building in-question. Secondly, it is contended that in Section 20 (2) (e) of the act the words have been used in present perfect tense and not in regard to any sub-letting which had taken place prior to the date the Act became applicable to the shop in question. ( 6 ) SIMILAR controversy was raised before the Supreme Court in Gappulal v. Thakurji Shri Ji dwarkadheesh Ji and another, AIR 1969 SC 1291 , where the tenant was let out the accommodation when the provisions of Rajasthan Premises (Control and Eviction) Act, 1950 were not applicable. The landlord after enforcement of the said Act filed the suit for eviction on the ground that he had sublet the accommodation and was liable for eviction under Section 13 (1) (e) of the said Act. The Supreme Court, repelling the contention, made the following observation : "the question whether a subletting before the coming into force of the Act is within the purview of clause (e) of Section 13 (1) depends upon the construction of that clause. The relevant words are "has sublet". The present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present time. The relevant words are "has sublet". The present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present time. It does not matter that the sub-letting was either before or after the Act came into force. All such sub-lettings are within the purview of clause (e ). " ( 7 ) SUPREME Court further repelled the contention that the tenant had a right to sublet the premises under Section 108 (j) of the Transfer of Property Act prior to the enforcement of the act and therefore, it cannot be treated illegal. The Court observed : "if the tenant has sublet the premises without the permission of the landlord either before or after the coming into force of the Act. he is not protected from eviction under Section 13 (1) fe ). and it matters that he had the right to sublet the premises under Section 108 (j) of the Transfer of property Act. " ( 8 ) IF a tenant sublets an accommodation under his tenancy it hardly matters to the landlord where the Rent Control Act is not applicable because even if sub-letting has been done by the tenant, the tenant can be evicted and the sub-tenant cannot have independent right in the demised premises but if the Act comes into force, the tenant must establish that sub-tenancy was created with the permission of the landlord. This question was again considered by the Supreme Court in shantilal Rampurua and others v. M/s. Vega Trading Corporation and others. 1989 (2) ARC 407, where the tenant had sublet the accommodation long before coming into force of West Bengal premises Tenancy Act. 1956. It was sought to be evicted on the ground that he had sublet the accommodation in contravention of Section 13 (1) (a) of the West Bengal Tenancy Act. 1956. It was held that the provisions of the Act would be applicable in respect of the accommodation, which were let out before coming into force of the Act. Similar view was expressed in M/s. Bajaj auto Limited v. Behari Lal Kohti, 1989 (2) ARC 412. while considering Section 14 (1), Proviso (b) of Delhi Rent Control Act. 1958 which prohibited sub-letting by a tenant. Similar view was expressed in M/s. Bajaj auto Limited v. Behari Lal Kohti, 1989 (2) ARC 412. while considering Section 14 (1), Proviso (b) of Delhi Rent Control Act. 1958 which prohibited sub-letting by a tenant. ( 9 ) THIS Court also considered this question in Shambhoo Nath v. IXth Additional District Judge. Allahabad, 1977 UP RCC 7. It was held that there is nothing in Section 12 (1) (b) of Act No. 13 of 1972 which would make it applicable only to subletting taking place after enforcement of the act. It is equally applicable to the letting which had taken place prior to the enforcement of the act. The Full Bench in Smt. Kesar Bai v. District Judge, 1980 ARC 223. held that the provisions of Section 12 (1) (b) of the Act is retrospective in nature and if there was any subletting prior to the enforcement of the Act, this clause will be applicable retrospectively. The Court observed as follows : "it, therefore, appears to us that if a tenant has sublet the premises either before or after the coming into force of U. P. Act No. 13 of 1972. he would come into the clutches of clause 12 (1) (b ). and it does not matter that he had the right to sublet the premises under Section 108 (j) of the transfer of Property Act. In the absence of Rent Act a landlord had a common law right to evict the tenant either on the determination of tenancy or by efflux of time. While the Rent Control legislation has provided a number of facilities to the tenant, it should not be construed so as to destroy the limited relief which is available to the landlord. Clause 12 (1) (b) entitles the District authorities to take action for eviction of a person illegally brought in. The scheme of the Act is to protect a lawful tenant and not a person who is illegally inducted. Permitting a sub-tenant or a person unauthorisedly brought in to continue in possession is to defeat the purpose and object of the Act. A protection is available to a tenant only so long as he does not commit a breach of the provisions of the Act. " ( 10 ) SECTION 25 (1) of the Act provides that no tenant shall sublet the whole of the building under his tenancy. A protection is available to a tenant only so long as he does not commit a breach of the provisions of the Act. " ( 10 ) SECTION 25 (1) of the Act provides that no tenant shall sublet the whole of the building under his tenancy. Sub-section (2) provides that the tenant may with the permission in writing of the landlord and of the District Magistrate, sublet a part of the building. Explanation added to this section provides that where the tenant ceases, within the meaning of clause (b) of sub-section (1)or subsection (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sublet that building or part. Section 12 (1) (b) provides that a landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by a person who is not a member of his family. The Courts below have recorded concurrent finding that the petitioner has sublet the accommodation in question. He has divided the shop in three parts. He has given one portion exclusively to defendant No. 2 and another portion to defendant No. 3. They are not related to him. This finding has not been shown to be erroneous. ( 11 ) IN view of the above discussion. I do not find any merit in the writ petition. It is accordingly dismissed. ( 12 ) IN the facts and circumstances of the case, the parties shall bear their own costs.