Allahabad High Court
Rupesh Agarwal vs Devendra Kumar Nagariya And Another on 27 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 2064, 2019 (12) ADJ 1 NOC, (2019) 3 ALL RENTCAS 663, (2020) 138 ALL LR 497
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 18.4.2019 Delivered on 27.9.2019 Court No. - 19 Case :- MATTERS UNDER ARTICLE 227 No. - 2163 of 2017 Petitioner :- Rupesh Agarwal Respondent :- Devendra Kumar Nagariya And Another Counsel for Petitioner :- Rama Goel Bansal Counsel for Respondent :- Shyam Shankar Mishra,Kripa Shankar Pandey,P.K.Jain Hon'ble Salil Kumar Rai,J.
1. Heard Ms. Rama Goel Bansal, learned counsel for the petitioner and Shri P.K. Jain, Senior Counsel, assisted by Shri Shyam Shankar Mishra, Advocate, for respondent No. 1.
2. The respondent No. 1 is the landlord of a Shop No. 305(Old No. 174) situated in Minarwa Talkies, Minarwa Chauraha, Mohalla-Talaiya, District-Jhansi. The petitioner is the tenant of the said shop. The shop shall hereinafter be referred to as, 'disputed premises'. Respondent No. 1 instituted Small Causes Case (hereinafter referred to as, 'S.C.C.') No. 48 of 2011 under Section 20(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as, 'Act, 1972') for eviction of petitioner on the ground that the petitioner was in arrears of rent since 1.1.2004 despite a notice of demand having been served on him and also on the ground that the petitioner had sublet the disputed premises to respondent No. 2 without any permission from respondent No. 1 and respondent No. 2 was using it for his business of tyre repair. It was stated in the plaint instituting S.C.C. No. 48 of 2011 that a notice dated 27.7.2011 terminating the tenancy of the petitioner had also been served on him. The petitioner and respondent No. 2 filed their written statements denying the contents of the plaint instituting S.C.C. No. 48 of 2011. In their written statements, the petitioner and respondent No. 2 admitted the relationship of landlord and tenant between the petitioner and respondent No. 1. In their written statements, the defendants, i.e., the petitioner and respondent No. 2, stated that initially the father of the petitioner was inducted as tenant in the disputed premises at the rate of Rs. 2,000/- per month by the original owner and landlord of the disputed premises. It was averred that the father of the petitioner carried on his transport business from the disputed premises and the respondent No. 2 helped the father of the petitioner in his aforesaid business and when the father of the petitioner suffered loss in his transport business he started the business of tyre repair and respondent No. 2 continued to help him in his aforesaid business. It was also stated in the written statements that subsequently the disputed premises was purchased by respondent No. 1 and the father of the petitioner continued as tenant in the disputed premises and after his death, the petitioner continued as tenant in the disputed premises on the same terms and respondent No. 2 continued to help the petitioner in his business. It was stated that the petitioner paid wages to respondent No. 2 according to the work done by respondent No. 2. In their written statements, the defendants, i.e., the petitioner and respondent No. 2, denied the contents of the notice dated 27.7.2011 and also claimed protection of Section 20(4) of the Act, 1972 on the ground that they had deposited in the court the entire arrears of rent and damages as stipulated in Section 20(4) of the Act, 1972.
3. The trial court, i.e., the Small Causes Court, Jhansi, vide its judgement and decree dated 9.12.2014 decreed S.C.C. No. 48 of 2011 and directed the eviction of the petitioner from the disputed premises. In its judgement and decree dated 9.12.2014, the trial court held that the petitioner was in arrears of rent, but was also entitled to the benefit of Section 20(4) of the Act, 1972. However, in its judgement and decree dated 9.12.2014, the trial court held that the petitioner had sublet the disputed premises to respondent No. 2 without the permission of respondent No. 1, and therefore, the petitioner was liable to be evicted from the disputed premises under Section 20(2)(e) of the Act, 1972. Aggrieved, the petitioner filed Small Causes Revision No. 14/2015, which was dismissed by the Additional District Judge, Court No. 7, District-Jhansi vide his judgement and order dated 10.2.2017.
4. During the proceedings in the trial court, the respondent No. 1 produced his witnesses, who denied that the father of the petitioner was in the business of tyre repair and testified that the petitioner had sublet the disputed premises to respondent No. 2, who was using it for his business of tyre repair.
5. The witnesses of respondent No. 1, which included the respondent No. 1 himself, deposed before the trial court that the petitioner also owned another shop which he used for his business of electrical parts. The witnesses produced by respondent No. 1 also testified to the fact that the disputed premises was opened and closed by respondent No. 2 who had the keys of the disputed premises and he had also installed a generator in the disputed premises. In the trial court, the petitioner alongwith respondent No. 2 appeared as a witness to disprove the case of respondent No. 1. In his testimony before the trial court, the petitioner stated that he did not maintain the accounts of his business carried on from the disputed premises and the tax returns for his income from the disputed premises were prepared by his Chartered Accountant. In the trial court, the petitioner as D.W. 1, also confessed his ignorance about the total income from the disputed premises but stated that respondent No. 2 was daily paid his labour charges according to the work done by him after deducting the daily expenses of the disputed premises. In his testimony, the petitioner also denied any knowledge of the date of purchase and the person who had purchased the generator installed in the disputed premises. The respondent No. 2 also appeared as defendant witness No. 2 in the trial court. In his testimony, the respondent No. 2 stated that his tools, necessary for repairing tyres and tubes, which included the generator, were kept in the disputed premises. In his testimony, the respondent No. 2 denied that the disputed premises was sublet to him, but in his cross-examination admitted that he was paid 50% of the daily income from the disputed premises after deducting the expenses. After considering the aforesaid testimonies of the petitioner and respondent No. 2, the trial court as well as the revisional court held that respondent No. 2 was in exclusive possession of the disputed premises and, therefore, inferred that the petitioner had sublet the disputed premises to respondent No. 2. In its judgement and order dated 10.2.2017, the revisional court also took note of the failure of the petitioner to produce any records showing that he was doing business of tyre repair from the disputed premises. The orders dated 9.12.2014 and 10.2.2017 passed by the courts below have been challenged in the present writ petition.
6. Challenging the judgements and orders passed by the courts below, the counsel for the petitioner has argued that in order to prove sub-letting, the respondent No. 1 was required to prove that the petitioner had transferred exclusive possession of the disputed premises to the respondent No. 2 and the said transfer was in lieu of some consideration, i.e., rent. It was argued by the counsel for the petitioner that the respondent No. 1, i.e., the landlord had failed to prove that the petitioner had transferred or that respondent No. 2 was in exclusive possession of the disputed premises and the petitioner had proved before the courts below that he still retained possession and control of the disputed premises. It was argued that the findings recorded by the courts below that the petitioner had sublet the disputed premises to respondent No. 2 was contrary to the evidence on record and was perverse. It was argued that for the aforesaid reasons, the impugned orders dated 9.12.2014 and 10.2.2017 passed by the courts below are illegal and contrary to law and are liable to be set aside. In support of her arguments, the counsel for the petitioner has relied upon the judgements of the Supreme Court in G.K. Bhatnagar Vs. Abdul Alim, 2002 S.C.F.B.R.C., Page 563, Helper Girdharbhai Vs. Saiyed Mohamad Mirasaheb Kadri and Others, 1987 S.C.F.B.R.C., Page 348, M/s. Shalimar Tar Products Ltd. Vs. H.C. Sharma and Others, 1988 S.C.F.B.R.C., Page 127, Parvinder Singh Vs. Renu Gautam and Others, (2004) 4 SCC 794 and Vaishakhi Ram and Others Vs. Sanjeev kumar Bhatiani, 2008 S.C.F.B.R.C., Page 77.
7. Rebutting the argument of the counsel for the petitioner, the counsel for respondent No. 1 has argued that the petitioner had permitted respondent No. 2, who was not a member of his family, to occupy the disputed premises, and therefore, in view of Section 12 and Section 25 of the Act, 1972, the petitioner will be deemed to have sublet the disputed premises to respondent No. 2, and therefore, liable to be evicted under Section 20(2)(e) of the Act, 1972. It was further argued that no evidence was filed by the petitioner to show that the business in the disputed premises was registered with the appropriate authorities and no document was filed by the petitioner to show that he was doing the business of tyre repair from the disputed premises. It was argued that it was proved from the evidence on record that respondent No. 2 had exclusive possession of the disputed premises and the findings of the courts below that the petitioner had sublet the disputed premises to respondent No. 2 are based on evidence on record and not liable to be interfered under Article 226 of the Constitution of India. It was further argued that the testimony of respondent No. 2 that he was paid 50% of the profit earned from the business indicated that there was a partnership between the petitioner and respondent No. 2, and therefore, in light of Section 12(2) read with Section 25 of the Act, 1972, the petitioner would be deemed to have sublet the disputed premises to respondent No. 2, and therefore, liable to be evicted under Section 20(2)(e) of the Act, 1972. It was argued that for the aforesaid reasons, the writ petition lacks merit and is liable to be dismissed with cost. In support of his argument, the counsel for respondent No. 1 has relied upon the judgements of the Supreme Court delivered in Anil Kumar Dadurao Dhekle Vs. Rekhiben and Others, 2017 (2) ARC 43, Brijendra Kumar and Others Vs. Suraj Bhan and Others, 2014 (3) ADJ 750, M/s. Bharat Sales Ltd. Vs. Life Insurance Corporation of India, air 1998 S.C. 1240, Ram Murti Devi Vs. Pushpa Devi and Others, 2017 (15) SCC 230, a judgement dated 6.3.2019 of this Court delivered in S.C.C. Revision No. 269 of 2014 (Praveen Sharma and Others Vs. Ravi Kumar and Another) as well as judgements of this Court in Awadhesh Kumar Gupta Vs. Additional Judge Small Causes and Others, 2016 (3) ARC 141 and Ram Charan Chaubey Vs. Jagdish Shankar and Others, 1989 (15) ALR 42.
8. Replying to the arguments of the counsel for respondent No. 1 regarding the alleged partnership between the petitioner and respondent No. 2, the counsel for the petitioner has tried to distinguish the judgement of the Supreme Court in Anil Kumar (Supra) on the ground that the said case related to Bombay Rent Control Act and was not applicable in the facts of the present case. It was further argued by the counsel for the petitioner that in the plaint instituting S.C.C. No. 48 of 2011, the respondent No. 1 had not pleaded that the respondent No. 2 was inducted as a partner by the petitioner in his business of tyre repair and it was not the case of respondent No. 1 in the courts below that the petitioner had sublet the disputed premises to respondent no. 2 by inducting the respondent no. 2 as a partner in his business, therefore, the respondent No. 1 can not be permitted to raise the said plea for the first time in proceedings under Article 226 of the Constitution of India.
9. I have considered the submissions of the learned counsel for the parties.
10. The counsel for the parties focused mainly on the issue as to whether from the evidence on record it was proved that respondent No. 2, i.e., the alleged sub-tenant had exclusive possession of the disputed premises or whether the evidence on record showed that the petitioner retained control and legal possession of the disputed premises. It would be evident from reasons given subsequently that the said question is not relevant to decide the present writ petition and whether the petitioner was liable to be evicted under Section 20(2)(e) of the Act, 1972.
11. Under Section 20(2)(e) of the Act, 1972 a suit for eviction of a tenant can be instituted by the landlord after determination of his tenancy on the ground that the tenant has sublet, in contravention of provision of Section 25, the whole or any part of the building. In Parvinder Singh (Supra), the Supreme Court observed that Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting (Paragraph No. 8). A subletting is a lease by a tenant to a third person. Lease has been defined under Section 105 of the Transfer of Property Act, 1882 (hereinafter referred to as, 'Act, 1882'). It is transfer of a right to enjoy the lease property in consideration for price paid or promised. Lease is a transfer of an interest in the property and in a lease, the lessor parts with his right to enjoy the property during the term of lease and the lessee has the right to enjoy the property to the exclusion of the lessor. Whether transfer of possession is a lease or not depends on the intention of the parties. The fact that the transferee has exclusive possession of the property is a factor which may persuade the court to infer that the transfer is a result of a lease agreement between the parties. The transferee would be a licensee and not a lessee, if the evidence indicates that the transferee had no right to enjoy the property to the exclusion of the transferor because in such a case there is no demise of estate or creation of an interest in favour of the transferee. The fact that the transferee was in exclusive possession of the premises is a relevant evidence to ascertain the intention of the transferor and the transferee and the nature of transaction between the two. The fact that the transferee is in exclusive possession is relevant to prove actual lease. Considering that any transfer of property by a tenant is a clandestine affair, and therefore, it is difficult for the landlord to prove, by direct evidence, any contract or agreement or understanding between the tenant and his transferee, the courts in cases under the rent control legislations have held that once the landlord proves exclusive possession of the transferee over the premises, the courts would be empowered to draw an inference that the said transfer was for a monetary consideration and the landlord would have discharged the burden of proving that the property had been sublet by the tenant to his transferee. Thus, in cases where the landlord proves that the tenant had parted with the possession of the building under tenancy and had delivered exclusive possession to a stranger and the tenant fails to prove that the said transfer or delivery was not for a monetary consideration, the landlord would succeed in getting a decree of eviction against the tenant on the ground that the building under tenancy had been sublet by the tenant.
12. However, under the Act, 1972, in situations incorporated in Section 12 of the Act, 1972, the landlord in order to succeed in a suit for eviction instituted under Section 20(2)(e) of the Act, 1972 is not required to prove that the tenant had delivered exclusive possession to any stranger without the permission of the landlord because in situations covered by Section 12, the landlord is not required to prove actual lease by the tenant to the person found in occupation of the tenanted premises. Section 25 of the Act, 1972 prohibits subletting of the whole of the building and permits subletting of a part of the building only with the permission in writing of the landlord and of the District Magistrate. The Explanation to Section 25 of the Act, 1972 provides that where the tenant ceases to occupy the building or any part thereof as provided in Section 12(1)(b) or Section 12(2) of the Act, 1972, he shall be deemed to have sub-let that building or part. Section 25 and Section 12(1) and (2) of the Act, 1972 are reproduced below :-
25. Prohibition of sub-letting.- (1) No tenant shall sub-let the whole of the building under his tenancy.
(2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building.
Explanation.- For the purposes of this section-
(i) where the tenant ceases, within the meaning of clause (b) of sub-section (1) or sub-section (2) of section 12, to occupy the building or any part thereof he shall be deemed to have sub-let that building or part ;
(ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting.
12. Deemed vacancy of building in Certain cases.- (1) A, landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof if-
(a) he has substantially removed his effects therefrom, or
(b) he has allowed it to be occupied by any person who is not a member of his family, or
(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
(2) In the case of a non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
(Emphasis added)
13. Section 25 and Section 12 of the Act, 1972 are deeming provisions. A deeming provision is an admission of the non-existence of the fact deemed and is enacted by the legislature to assume the existence of a fact which does not really exist. Recourse to the deeming provisions would be required only when there is no lease by the tenant to the person found in occupation of the tenanted premises or where the landlord cannot or fails to prove that the tenant has delivered exclusive possession of the building under tenancy or any part thereof to his transferee. In case, the landlord proves that there is a lease agreement between the tenant and his transferee or the tenant has delivered exclusive possession of the building under tenancy to the transferee there would be no occasion to take recourse to the deeming provisions under Sections 12 and 25 of the Act, 1972 and the landlord would be entitled to a decree of eviction under Section 20(2)(e) of the Act, 1972 because in such cases, the landlord would have proved a lease under Section 105 of the Act, 1882. There is no reason to interpret 'allow to occupy' to mean 'delivered exclusive possession of the property'. A landlord is not required to prove delivery of exclusive possession by the tenant to his trasferree in situations which are covered by Sections 12(1) and 12(2) of the Act, 1972. At this stage, it is clarified that even though phrase 'allow to occupy' used in Section 12(1)(b) of the Act, 1972 cannot be interpreted to mean as 'delivered exclusive possession' but Section 12(1)(b) of the Act, 1972 cannot be invoked where the stranger uses the property not for his own purposes but as an agent or employee of the tenant and for the purposes of the tenant (Harbans Lal Vs. Jagmohan Saran, 1985 (4) SCC 333 and Jagdish Prasad Vs. Smt. Angoori Devi, 1984 (2) SCC 590). It is evident from a joint reading of Explanation to Section 25 and Section 12(1)(b) of the Act, 1972 that even if the tenant has allowed the building under his tenancy to be occupied by any person who is not a member of his family and the building is used by the stranger for his own purposes and not for the purposes of the tenant, the tenant shall be deemed to have sublet the building in favour of the stranger and liable to be evicted under Section 20(2)(e) of the Act, 1972. Thus, in cases where a stranger is shown to be in occupation of the tenanted premises, the issue before the Courts would be as to whether the tenant has allowed him to be in occupation and whether the stranger is in occupation of the premises as an agent or worker of the tenant, i.e., whether the stranger is in occupation of the premises for the purposes of the tenant or for his own purposes. The burden would be on the tenant to prove that the person shown to be in occupation of the premises was occupying it for the purposes of tenant as his agent or employee and not for his own purposes because it is the tenant who would be in the best position to prove his relationship with the stranger.
14. The judgements referred by the counsel for the petitioner do not indicate that any deeming provision similar to Sections 12 and 25 of the Act, 1972 was under consideration of the courts. The statutory provision under consideration by the courts in the cases referred by the counsel for the petitioner merely empowered the appropriate authority to pass a decree for recovery of possession of the tenanted premises in favour of the landlord, if the premises had been sublet by the tenant. Obviously, in the aforesaid cases, the issue before the Courts was whether there was a lease agreement between the tenant and his transferee and thus the question whether exclusive possession had been delivered by the tenant to his transferee was relevant in deciding the cases. As held above, in view of Sections 12 and 25 of the Act, 1972 in order to succeed in any suit for eviction of the tenant on the ground that the tenant had sublet the premises, it is not necessary for the landlord to prove delivery of exclusive possession, if the case falls in any of the situations narrated in Section 12 of the Act, 1972. Thus, the cases referred by the counsel for the petitioner are not relevant to decide the controversy raised in the present writ petition.
15. It is on record and it was proved by the witnesses of the landlord that respondent No. 2 was in possession of the keys of the disputed premises and used to open and close the disputed premises and was also continuously seen at the shop doing the work of tyre repair. The fact that respondent No. 2 was in occupation of the disputed premises was proved by the witnesses of the landlord/respondent No. 1. The case of the petitioner is that respondent No. 2 was in occupation of the tenanted premises as an employee of the petitioner and not for his own purposes. The burden to prove that respondent No. 2 was employed by the petitioner was on the petitioner as the relationship between the petitioner and respondent No. 2 could be proved only by the petitioner and not by the landlord/respondent No. 1. The relationship between the petitioner and respondent No. 2 as pleaded by the petitioner could have been proved by the petitioner by filing the documents relating to registration under the Uttar Pradesh Dookan aur Vanijya Adhishthan Adhiniyam 1962 (hereinafter referred to as, 'Act, 1962') and Uttar Pradesh Dookan Aur Vanijya Adhishthan Niyamavali, 1963 (hereinafter referred to as, 'Act, 1963'). Registration of a shop under the Act, 1962 is a mandatory requirement and the name of the employee of the shop has to be mentioned in the registration form to be submitted under the said Act. The petitioner did not file any such document in the trial court. The petitioner did not even file his income tax return to show the expenses incurred in his alleged business from the disputed premises which would have shown the wages paid by him to respondent No. 2. In his testimony, the petitioner also confessed his ignorance regarding the total income from the shop and stated that he did not maintain the accounts of the business allegedly carried on in the disputed premises. In his testimony, the petitioner had also confessed his ignorance about the date of purchase and the person who purchased the generator installed in the disputed premises. The petitioner clearly failed to prove that business of tyre repair carried on from the disputed premises was of the petitioner which it was necessary to prove that respondent no. 2 occupied the disputed premises not for his own purpose but as worker of the petitioner. In view of the aforesaid, the petitioner failed to prove that respondent No. 2 was in occupation of the disputed premises as his worker or employee and for the purposes of the business of the petitioner and not for his own purpose.
16. In view of the aforesaid, it is evident that there was a deemed vacancy of the disputed premises under Section 12(1)(b) of the Act, 1972 and thus, in view of Explanation to Section 25 the disputed premises shall be deemed to have been sublet by the petitioner to respondent No. 2. For the aforesaid reasons, the petitioner was liable to be evicted from the disputed premises under Section 20(2)(e) of the Act, 1972.
17. In view of the reasons given above, no findings are required on the question whether the respondent no. 2 was in exclusive possession of the disputed premises and whether there was a deemed vacancy under Section 12(2) of the Act, 1972.
18. For the aforesaid reasons, the writ petition lacks merit and is liable to be dismissed. The judgements and orders dated 9.12.2014 and 10.2.2017 passed by the courts below allowing S.C.C. No. 48 of 2011 and dismissing Revision No. 14/2015 are upheld though for reasons slightly different from those given by the courts below in support of their decree/orders.
19. The writ petition is dismissed.
20. Interim order, if any, stands vacated.
Order Dated :- 27.9.2019 Anurag/-