KANHAIYA LAL GUPTA Vs. KAILASH BEHARI

JUDGEMENT

(1.) PREMISES No, 56, Shiva Charan lal Road, Allahabad belonged to one Radhey Shyam Jaiswal. By an allotment order made on 1-6-1953 the upper portion of the aforesaid house was allotted to Kailash Bihari, respondent No. 1. Kailash Behari, respondent no. I sublet a portion of his tenancy to Panna lal Jaiswal. Thereupon, in the year 1960 Radhey Shyam Jaiswal filed a suit for ejectment of Kailash Bihari from the premises on the ground of illegal subletting. On 21-11-1960 the parties compromised the suit. Under the aforesaid compromise Radhey Shyam Jaiswal gave consent to Kailash Behari for the subletting which had been done by the latter in favour of Panna Lal. It appears that some time in the year 1969, Kailash Bihari filed a suit for ejectment against Panna lal Jaiswal on the ground of non- payment of rent. On 6th July, 1973, the suit was compromised. Under that compromise the suit of Kailash Bihari for the ejectment of Panna lal stood decreed. Thereafter, Kailash Bihari put the decree into execution for evicting Panna lal from a portion of the premises in dispute. Before possession of the aforesaid portion had been obtained by Kailash Bihari, Radhey Shyam Jaiswal sold the house to Kanhaiya lal Gupta and Shashi Kumari Gupta, the petitioner, on 9th February, 1976. Thereafter the petitioners applied for release under section 16 of U. P. Act No. 13 of 1972 of the upper portion of the premises vacated by Sri Panna Lal, on the ground of their personal requirement and inter-alia, contended that the accommodation in their possession was insufficient to meet their needs. The petitioners also claimed that as the portion vacated by Panna Lal, the posses sion of which was obtained by Kailash Bihari, would be deemed to be vacant within the meaning of section 12 (1) (b), the petitioners were entitled to get a release order made in their favour under section 16 of the Act. The application was contested by the respondent No. 1. He asserted that the sub-tenancy made in favour of Panna lal was with the consent of Radhey Shyam Jaiswal, the landlord. Accordingly delivery of possession, obtained by him in execution of the decree, could not create any vacancy. Respondent No. 1 also claimed that as he was the tenant of the entire accom modation situated on the first floor, he was entitled to get possession of the remaining portion from Sri Panna lal and that the petitioners were not legally entitled to get possession of the premises on the basis of section 12 of the Act. The Rent Control and Eviction Officer got an inquiry made through the Inspector and being satisfied that the premises was vacant made a declaration to the said effect on 18-9-1976. Against the aforesaid order declaring vacancy, the respondent No. 1 filed a writ petition in this Court. Along with an application for stay. The stay order was vacated. Consequent upon the vacation of the interim order, the Rent Control and Eviction Officer started proceedings for release initiated by the petitioners. On 3-10-1977, the Rent Control and Eviction Officer allowed the release application of the petitioners finding that their requirement of the premises was bona fide. Against the said order, the respondent No. 1 preferred a revision. The revision "was allowed and the order of the Rent Control and Eviction Officer was set aside. Against the said order, the present writ petition was filed. The first question that arises for decision in this case is whether the premises in dispute could be deemed to be vacant within the meaning of sub section (4) of section 12 and any action for its release could be legally taken by the Rent Control and Eviction Officer. In this regard the stand taken by the respondent no. 1 was that as the sub-tenancy created by him in favour of Panna lal was not illegal, the possession of the property could be lawfully obtained by him. It was further pointed out in this connection that possession of the sub-tenant was, in fact, the possession of the tenant-in-chief and with the exit of the sub-tenant from the scene, the premises did not stand vacant. As observed above, a part of the premises in dispute had been sub-let by Kailash Behari in 1960. At that time the rights and obligations of the parties were governed by the povisions of the U. P. (Temporary) Control of Rent and Eviction Act (U. P. Act No. 3 of 1947). Section 7 of the said Act dealt with control of letting. Sub section (3) provided 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 District Magistrate previously obtained." An analysis would show that two things were required for a valid sub letting (i) permission of the landlord in written and (ii) the permission of the District Magistrate. In the instant case in 1960, a compromise had been arrived at between Radhy Shyam Jaiswal, the then landlord and Kailash Bihari. By the said compromise the landlord agreed that a portion of the premises could be sub let by respondent No, 1. Consequently, the necessary permission required for sub-letting would be deemed to have been accorded by the landlord to the tenanr-in-chief. There remains only the question of the permission of the District Magistrate. Addmittedly such a permission had not been obtained. B. D. Agrawal, counsel appearing for the petitioner contended that as permission of the District Magistrate was not obtained, the sub-letting was illegal and that the same was liable to be ignored. The submission made does not appear to be correct. Under the old Act a "tenant" in relation to a building means a person by whom its rent is payable and the expression "landlord" in relation to a building "means a person to whom its rent is if the building'' had been let out would be payable. In this con nection, it may also be noticed that the word "accommodation" used in section 2 of the old Act does not necessarily mean the entire building. A part of the accommodation which had been let out to a sub-tenant by a tenant-in-chief, could constitute an accommodation in itself. This would show that qua his sub-tenant the tenant-in-chief is his landlord. It may be true that the sub-letting made by respondent no. 1 in favour of Panna lal was in viola tion of the provisions of Section 7 (3) of the Act but it was still valid between the parties and created the relationship of landlord and tenant. It would bind the parties even if it was not binding on the authorities. In Murlidhar Agarwal v State of U. P. & others (A. I. R. 1974 S. C. 1924) a controversy arose with regard to the letting by the landlord in violation of Section 7 (2) of the old Act. The Supreme Court held that the lessee who had been paying the rent to the lessor was a tenant and that permission under section 3 of the old Act was needed to evict him. A similar view had been taken by a Full Bench of our Court reported in Udhodas v. Prem Prakash (A. I. R. 1964 Alld. 1). Accordingly, even if the act of sub-letting had been in violation of the provisions of Section 7 (3), the same was binding on the landlord. As the petitioners purchased the property from the previous landlord, the consent of the previous landlord was binding on them as well. The petitioners had entered into the shoes of the previous landlord and their rights and obligations were governed on the same terms and conditions which had been agreed to between the respondent No. 1 and its previous landlord. In Prem Chand v. Smt. Pushpawatt,( 1977 (3) A. L. R. 404), brother K. N. Seth, J., had an occasion to consider the question of the maintainability of the application filed under section 21 (1) (a) of U. P. Act No. 13 of 1972 by a tenant-in-chief against his sub-tenant. He held that even if contract between the tenant-in-chief and sub-tenant is in violation of section 7 of the old Act, the same would not be void or illegal and that the contract of tenancy would be binding. I am in respectful agreement with this view. From the observations made above, it would appear that the sub-letting was not illegal. This was brought to an end by respondent no. 1 in 1969 when he filed a suit for ejectment. Before filing the suit a notice terminating the tenancy had been served. Consequent upon the termination notice, the relationship of landlord and tenant came to an end. Panna lal Jaiswal was a trespasser or a tenant on sufferance and that the premises was not in his possession as a sub-tenant. As such, the provisions of Section 12 (1) (b) were not applicable. Section 12 (1) (b) would apply to a case where a tenant-in-chief had allowed the premises to be occupied by a person other than the member of his family. In Shambhu Nath Tandon v. 9th Additional District Judge (1977 (U. P.) R. C. 7), and in Baikunthnath Sharma v. District Judge (1977 (U. P.) R. C. C. 457). I took the view that the words "has allowed" after 'any person' shows that the operation of section 12 (1) (b) could not be confined to sub-letting coming into existence after 15th July, 1972 and that the scope of the aforesaid clause was wide enough to cover a sub-letting which took place before the commencement of the Act. It is, however, to be noted that in these cases the sub- lettings although had taken place before the Act but had continued even after U. P. Act No. 12 of 1972 came into force. In this background, it would be found that the sub letting was in existence after 15th July, 1972 and as the same was illegal, the view taken was that the premises given to sub-tenant could be considered to be vacant within the meaning of section 12 (1) (b) of the Act. These cases are, therefore, distinguishable on two grounds. Firstly, the subletting in those cases had not been done with the consent of the landlord and secondly that the sub-letting was in existence even after 15th July, 1972. In a case where sub letting took placid before 15th July, 1972 and that relationship also came to an end before the aforesaid date, the provisions of section 12(1)(b) would not be applicable. In the instant case, therefore, as the sub-letting had been done with the consent of the landlord and further it had been brought to an end before 15th July, 1972, provisions of Section 12 (1) (b) are not applicable. In Ram Mani Devi v Rent Control and Eviction Officer (1976 (2) A. L. R. 76 (F. B.)) a question arose whether a vacancy occurred under the old Act in the case of sub-letting of a portion of an accommodation. The majority answered the question in the negative holding that:- "It is permissible to look at the setting in which the words are used. Neither sub-section (3) nor explanation stipulated that a sub-tenancy not made in accordance with sub-section (3) would be deemed to create a vacancy of the accommodation so as to give jurisdiction to the District Magistrate to pass an order of allotment, under sub-section (2) of section 7 and take further action under section 7-A against the tenant-in-chief and the sub-tenant." It would be found from the law laid down in the said case that creation of sub-tenancy even if in violation of section 7 (3) would not result in creating vacancy. A tenant who lets out a portion of the building retains an interest in the property and the same does not get lost by the creation of sub-lease. It is immaterial whether the lease was created in accordance with or in contraven tion of section 7 (3). Counsel for the petitioner placed reliance on a decision of this Court reported in Sri Chandlal Bhikharidas v. Rent Control and Eviction Officer, Saharanpur and others(A.I.R. 1966 Alld. 269), and Uttam Chand v. Kanakmala(1967 A.W.R. 201). By the former decision a Division Bench of this Court had overruled a judgment of a Single Judge given in the case of Ram Autar v. State of U. P.(1964 A.L.J. 491). This decision of Ram Autar's case, (supra) was approved by majority in Rammani's case, (supra). Consequently, although Sri Chandlal's case (supra) was not dealt with in Rammani's case (supra) but the same would be deemed to have been impliedly overruled by the Full Bench. The law laid down in Srichandlal's case (supra), therefore, is no longer a good law. As the Full Bench had taken a view different than what was taken in Uttam Chand's case (supra) by Sri S.S.Dhawan, the decision given in the said case also is not binding. For these reasons, I find that the vacancy caused in 1976 did not result either in creating a deemed vacancy or actual vacancy within the meaning of Section 12 (1) (b). Section 12 of U. P. Act No. 13 of 1972 created a legal fiction. As is well settled, legal fictions are created only for some definite purpose. The decision given in Bengal Immunity Co. v. State of Bihar(A.I.R. 1955 S.C. 661) would show that:- "A legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field." In this view of the matter as the situation pertaining in the present case is not covered by clause (b) of section 12 (1), it is not possible to hold that the premises could be deemed to have fallen vacant under the aforesaid provision. As the main case of the petitioner is not being accepted by me, it is not necessary to examine either the question of bona fide requirement of the premises by the petitioner or whether the application filed by the landlord in respect of a part of the premises was maintainable. For these reasons, the writ petition fails and is dismissed with costs to respondent No. 1.