MOHD ISHAQ Vs. STATE GOVT OF UTTAR PRADESH

JUDGEMENT

(1.) THE following question has been referred to a Full Bench by a Division Bench particularly for reconsideration of the decision in Dr. A. C. Dass v. T.R.O. and D.S.O. Lucknow, 1962 All LJ 553:-- "When a tenant-in-chief vacates an accommodation by subletting it to another person can the District Magistrate pass an order under Section 7 (2) of the Act to him to sublet it to another person or to his landlord, e.g. the owner of the accommodation, to let it to another person. In other words, who is the landlord of the accommodation that falls vacant--the tenant-in-chief or the owner--who can be ordered to let?"

(2.) SINCE an abstract question is referred to us we are not concerned with the facts and I do not consider it necessary to reproduce them. The question is an abstract question of law, the answer to which does not depend upon the facts at all.

(3.) THE law regarding landlord and tenants is contained in the Transfer of Property Act and continues to be in force except to the extent it is altered by the (Temp.) Control of Rent and Eviction Act. Dayal J. said in N. C. Agarwal's case, 1960 All LJ 755 at p. 757: (AIR 1961 All 104 at p. 106 (FB)) that "the Rent Control and Eviction Act.... has to be strictly construed" and that "the power of control is clearly defined and cannot extend to matters not included In the Act. An accommodation governed by the Rent Control and Eviction Act in certain matters remains governed by the Transfer of Property Act in other matters. Under Section 111 of it a lease is determined in several ways including express surrender, i.e., the tenants yielding up his interest under the lease to the landlord by mutual agreement between them and implied surrender. THEre is no determination of a lease by abandonment; even if a tenant abandons the accommodation or ceases to occupy it he remains a tenant subject to all liabilities of a tenant. In the absence of a contract a tenant is entitled to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property while remaining liable under the lease vide Section 108 (j). THE Rent Control and Eviction Act contains no provision laying down when a lease of an accommodation is determined; therefore, Section 111 of the Transfer of Property Act applies to an accommodation in respect of this matter. As regards subletting, there is Section 7 (3) in the Act laying down that no tenant can sublet any portion of the accommodation except with the permission in writing of the landlord and of the District Magistrate previously obtained, if the accommodation is governed by the Act and this provision prevails over that contained in Clause (j) of Section 108.