NATHULAL Vs. RATANSI

JUDGEMENT

(1.) THIS case comes before the Full Bench on a reference by Choudhuri J. The appeal arises out of a civil suit filed after notice with the permission of the Rent controller, and the dispute is as to the validity of the notice which has been served upon the tenant. Admittedly, the tenant was asked to be evicted from only a portion of the house, and the contention of the tenant is that the notice served on him, was invalid and further that if the notice were held to flow from the C. P. and berar Letting of Houses and Rent Control Order, 1949, the C. P. and Berar regulation of Letting of Accommodation Act, 1946, and the House Rent Control order are ultra vires in material particulars.

(2.) THE case was sent to this Full Bench for final decision, but we think it better that we should express ourselves only on the questions of Law which have been raised before us and leave the matter to the learned Single Judge. Fortunately the referring Judge is with us and he agrees that this is the best course.

(3.) THE first contention of the tenant is that under the Transfer of Property Act, there can be no splitting up of a tenancy, and either the tenancy has to continue as a whole or has to be terminated in its entirety. By giving permission to the landlord to evict the tenant from a portion of the premises there is a splitting up of tenancy and a new tenancy in respect of the portion retained by the tenant will emerge. According to the tenant, this is not possible under the Transfer of property Act and therefore, the order made by the Rent Controller was illegal and cannot be given effect to. In the alternative, the tenant asks that if such a permission naturally flows from sub-clause (8) of clause 13 of the Rent Control Order, then the clause itself is ultra vires being in conflict not only with the general scheme of the C. P. and Berar regulation of Letting of Accommodation Act, but also in conflict with the Transfer of Property Act. The learned Counsel for the tenant contends that if the clause be effective and valid under the Act, then the Act itself is illegal and ultra vires.