UDHOO DASS Vs. PREM PRAKASH

JUDGEMENT

(1.) The following question has been referred to this Bencn for its opinion:-" Whether a contract of tenancy of an accommodation governed by the U.P. (Temporary) Control of Rent and EVICtion Act entered into by a landlord with a person on payment of rent by latter, for the purpose of carrying on business in the accommodation, in violation of a general or special order issued by the District Magistrate concerned under Section 7(2), is void under Section 10 read with Section 23 of the Contract Act". Respondent No. 2 is the owner of a shop governed by the U.P. (Temporary) Control of Rent and Eviction Act, 194/ and had let it out to Sharma Provision Stores. On 1-2-52 respondent No. 1 who will be referred to as the respondent hereinafter, purchased the goodwill, goods and effects of Sharma Provision Stores and continued business in the shop under the style "Sharma Provision Stores". The appellant represented to the District Magistrate that the shop had fallen vacant and on 20-2-1952 obtained from him an order under Section 7(2) of the Act (known popularly as "allotment order") calling upon the landlord to let it out to him. Thereupon the respondent instituted the suit giving rise to this appeal for an injunction. It was contested by the appellant and was decreed on the ground that the shop had not fallen vacant and the District Magistrate had no power to issue the order of allotment. An appeal from the decree was dismissed by a Civil Judge and the second appeal has been tiled in this Court. The learned Judge before whom the second appeal came up for hearing referred it to a larger Bench in view of the importance of a question raised in it.

(2.) Under Section 7(1) every landlord and every tenant is required to inform tho District Magistrate about an accommodation becoming, or having become, vacant under Section 7(2) every District Magistrate is empowered to require by a general or special order 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. A general order is an order directed to the public in respect of every accommodation falling or fallen vacant and a special order is an order addressed to a particular landlord in respect of a particular accommodation. A common general order is an order prohibiting all landlords from letting out any accommodation that is vacant without his permission; such an order is violated if any landlord lets out an accommodation without his permission. If no special order is -issued, it is violated as soon as any accommodation is let out without permission. A special order is an order requiring a landlord to let out a particular accommodation to X or not to let it out to x. The former order is violated by the landlord's not letting it out to X; it is violated if he does not let it out to any one. If he lets it out to Y, he violates the general order, if any issued, but not the special order unless time is fixed for his letting it out to X and it has expired. The latter order prohibiting a landlord from letting it out to X is violated by his letting it out to X but not by his letting it out to Y. If he lets it out to X, the general order also is violated and if he lets it out to Y, only the general order is violated.

(3.) Under Rule 3 of the rules framed by the State Government in exercise of the power conferred by Section 1/ of the Act a District Magistrate is required to make an "allotment order" within 30 days of the receipt of information sent to him by the landlord under Section 7(1) (a) ana to inform him of it. The State Government had no justification to call the order an "allotment order"; it is an order directing a landlord to let out an accommodation to a particular person. It confers no right whatsoever upon the person other than of requiring the landlord to let out the accommodation to him. To "let out" means to enter into a contract of tenancy (with a person) and it is only after he has done so that the person gets a tenant's rights. The order issued by the District Magistrate does not confer any tenancy rights upon him, naturally he cannot become a 'tenant unless a contract of tenancy has been entered into between him and the landlord. Landlord-tenant relationship is governed by the provisions of the Transfer of Property Act and the Contract Act; under them an owner of an accommodation can let it out to any person on terms settled between them. The U. P. (Temporary) Control of Rent and Eviction Act simply takes away an owner's right to enter into a contract of tenancy with, any person of his choice by requiring him to enter, or not to enter, into a contract of tenancy with a particular person. Other provisions of the Transfer of Property and Contract Acts remain in force. A District Magistrate has the power only of restricting an owner's choice of a tenant, he has no right whatsoever to dictate the terms of the contract of tenancy or even to make a contract of tenancy on his behalf. The preamble to the Act shows that the object behind the Act was to control the letting and not to prohibit it. The freedom of the parties to fix rent is recognised by Section 5; see Daulat Ram v. Triloki Nath, 1961 Alt LJ 831: (AIR 1962 All 147 (FB)). If the vacancy of an accommodation is not reported or a person occupies an accommodation in contravention of an order issued under Section 7 (2), the District Magistrate may under Section 7-A (1) require him to show cause why he should not be evicted from it. If he fails to show cause, the District Magistrate can direct him to vacate the accommodation and if he fails to vacate it, the District Magistrate can use force. This provision applies when an allotment order is passed before occupation of the accommodation by another person; it does not apply when an allotment order is passed after the landlord has Set out the accommodation to another person. In Ram Lal v. Shiv Mani Singh, 1962 All U 260 It was held that letting out an accommodation before an allotment order is issued is not hit by Section 7-A and the person remains a tenant even though liable to be evicted on his failure to show cause and even though the landlord may be liable to prosecution, under Section 8 for not complying with the order under Section 8 any person who contravenes any order made under the Act is liable to be convicted and punished. A landlord who violates a general or special order is, therefore, liable to be convicted and punished under Section 8. A person who occupies an accommodation without an allotment order in his favour or in contravention of an allotment order passed in favour of another person does not violate any provision of the Act or any order made under it and is not liable to be punished. A landlord is required by general order not to let out an accommodation without the District Magistrate's permission; Section 7 (2) does not authorise a District Magistrate to prohibit a person from entering into a contract of tenancy with a landlord without the District Magistrate's permission. One who abets a contravention of any order made under the Act is deemed to have contravened the order, vide Section 11. So if a person knowing that a landlord has been ordered under Section 7(2) to let out an accommodation to another person prevails upon him to let it out to himself, he may be guilty as an abettor. Similarly if he knowing that a general order has been issued requiring a landlord not to let out an accommodation without the District Magistrate's permission and not having obtained the District Magistrate's permission prevails upon the landlord to let out the accommodation to him, he may be guilty as an abettor. Thus he can be guilty and he has abetted his guilt.