Allahabad High Court
Fazalur Rehman vs Xiith Additional District Judge, ... on 24 March, 1998
Equivalent citations: 1998(3)AWC1639, AIR 1998 ALLAHABAD 354, 1998 ALL. L. J. 2406, 1999 A I H C 548, 1999 (1) RENCR 125, 1999 (1) RENCJ 609, 1999 (1) RENTLR 668, 1998 (2) ALL WC 1639, 1998 (33) ALL LR 560, 1998 (1) ALL RENTCAS 576
Author: J.C. Gupta
Bench: J.C. Gupta
JUDGMENT J.C. Gupta, J.
1. By means of this writ petition, the petitioner has challenged the order dated 9.2.1995 passed by respondent No. 2 declaring the vacancy and the subsequent order dated 16.2.1995 releasing the accommodation in question In favour of the land lord-respondent.
2. The dispute relates to a portion of House No. 105/216, Chainan Ganj, Kanpur Nagar. which is admittedly in the tenancy of the petitioner since before the commencement of the U. P. Act No. XIII of 1972 (hereinafter referred to as 'the Act').
3. An application on behalf of the landlord was moved by his power of attorney before the Rent Control Inspector that since the petitioner-tenant has sublet the disputed accommodation, the same has become vacant and it be released in his favour. A report was called for from the Rent Control Inspector who Inspected the premises and found some workers and labourers working inside the premises and a hoarding bearing the name "M/s. Footcraft International, Proprietor Naseem" was found placed therein. The landlord gave out in his statemenf that the premises in question has been sublet to M/s. Footcraft International and Commercial Traders at higher rent. Notices were issued and the petitioner filed objections to the effect that he is in occupation of the accommodation in question as tenant and has not sublet the same nor he has ceased to occupy it. As he has become old, his business Is being looked after by his sons Naseem Akhtar and Kaleem Akhtar, who are carrying on their business under the name and style of "M/s. Footcraft International" and "M/s. Commercial Traders" in the premises in question. The petitioner-tenant filed affidavit in support of his defence. Whereas the landlord in his affidavit alleged that the accommodation in question has been sublet by the petitioner to one Mohd. Rasheed. He also filed affidavit of one Flroz stating that the disputed accommodation has been sublet by the petitioner to one Kamran.
4. By the order dated 9.2.1995, the Rent Control and Eviction Officer (R.C. & E.G.) declared the disputed accommodation vacant and then by a subsequent order released the same in favour of the landlord-respondent. The petitioner challenged the validity of the release order before respondent No. 1 by filing a revision and having failed there, he has approached this Court by means of this writ petition.
5. When this writ petition came up for admission on 18.9.1997, Sri O. P. Slngh who had filed caveat on behalf of the landlord-respondent made a statement before the Court that since only questions of law are Involved, he did not intend to file any counter-affidavit. In this view of the matter, this writ petition is disposed of finally.
6. Learned counsel for the petitioner argued that the Impugned order of release made in favour of the landlord-respondent is a nullity as no vacancy could be deemed in law on the basis of the findings recorded in the order dated 9.2.1995. It was contended that the R. C. and E. O. has not recorded any specific finding as regards the existence of any of the situations envisaged under clause (a) or (b) of Section 12 (1) or sub-section (2) of Section 12 of the Act.
7. The R.C. and E.O. in his order dated 9.2.1995 has observed that the premises In question would be deemed vacant under Section 12 (4) of the Act. Section 12 (4) lays down that any building or part, which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2), or sub-section (3), or sub-section (3A), or sub-section (3B), shall for the purpose of Chapter HI, which deals with the regulation of letting, be deemed to be vacant. Section 16 which empowers a District Magistrate to make an order of allotment or release ts contained in Chapter 111. It would, thus, follow that once the provisions of Section 12 (4) get attracted, vacancy by a fiction is deemed and the building becomes open for release or allotment.
8. In the present case, we are concerned with Section 12 (1) or subsection (2) of Section 12 only as other sub-sections mentioned in Section 12 (4) relate only to residential buildings whereas the premises in question is admittedly a commercial one.
9. Under sub-section (1) of Section 12. vacancy is deemed by a legal fiction, if facts mentioned in either of the following clauses, are shown to exist :
(a) that the tenant has substantially removed his effects from the tenanted building ;
Or
(b) that the tenant has allowed such building to be occupied by any person who is not a member of his family.
Under sub-section (2) of Section 12 of the Act, again by a fiction vacancy is presumed where the 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.
From the above. it is clear that by virtue of a statutory fiction, the Courts have to proceed on the assumption that building is vacant for the purpose of allotment or release as and when the state of affairs as envisaged under the above provisions are shown to exist, though physically the building may not have become vacant. These provisions appear to have been enacted with the object that while safeguarding the Interest of tenants from eviction, they should not be allowed to take unnecessary benefit of the restrictions put for their eviction and the law makers thought that they should face the consequences for contravening any of the conditions prescribed in the above provisions. One of the objects of the Act is to regulate the letting by the District Magistrate. This object was likely to be defeated if he had been authorised to Intervene only where the building is actually and physically vacated by the tenant. But since the authority has to proceed on the assumption created by a fiction, these provisions have to be construed very strictly. The building cannot be deemed vacant unless it has been clearly and specifically established from the evidence on record that the circumstances stated In one of the clauses (a) and (b) of Section 12 (1) or sub-section (2) of Section 12 of the Act have come into existence. In the absence of specific finding about the existence either of those conditions, vacancy cannot be deemed under these provisions.
10. For the applicability of clause (a) of Section 12 (1), the building can only be deemed to be vacant if the tenant or landlord has substantially removed his effects therefrom. In the present case. It would appear that while passing the Impugned order the R.C. and E.O. has wrongly put the burden on the petitioner to prove that he was still occupying the building and carrying on his business therein. The mere fact that the telephone connection in the name of the petitioner has been shifted from the premises in question to another place cannot lead to a conclusive Inference that the tenant has substantially removed his effects from the tenanted building. It could only be a circumstance which may be considered in deciding the question of existence of the condition as stated in clause (a) but on that mere fact, a conclusion of the substantial removal of effects cannot be arrived at. While enacting clause fa; of Section 12 (1), the Legislature with some purpose and object has used the word 'substantially' before the word 'removal'. In the case of Dr. S.N. Ghosh v. R.C. and E.G., 1976 ALJ 256, a single Judge of this Court had the occasion to consider the expression "has substantially removed his effects", and it was observed :
"It does not contemplate removal of some household effects ; on the contrary it envisages that for all practical purposes the landlord or tenant as the case may be should be found to have practically removed all his household effects from the accommodation in question."
It was further observed that removal of households must also Indicate his Intention of not coming back to occupy the building.
11. If a tenant of a shop does not carry on business for sometime. It does not entitle the authorities concerned to declare vacancy. Similarly the mere fact that the shop is found locked, it cannot be conclusively held on that basis alone that the shop be deemed vacant. Whether there has been substantial removal of the effects from the tenanted building is a question of fact depending upon the own facts of each case and no hard and fast formula can be laid down as to in what cases, substantial removal of the effects would be sufficient to attract clause (a) of Section 12 (1).
12. In the present case, at the time when Inspection of the building in question was made by the Rent Control Inspector, some labourers were found working there and a hoarding in the name of "M/s. Footcraft International. Proprietor Naseem" was found hanging. According to the petitioner, this Naseem is his own son and he is carrying on business with his other brother on account of the old age of the petitioner. This aspect of the case has not been considered at all by the Rent Control Officer. The finding as regards the applicability of clause (a) thus suffers from a manifest error of law being Incomplete and based on conjectures and surmises.
13. It has now to be examined whether on the findings recorded by the R.C. and E.G., vacancy could be deemed under clause (b) of Section 12 (1) of the Act. It is noteworthy that the R.C. and E.O. has not recorded any clear and specific finding as to who was in actual occupation of the building. Without recording findings on the essential ingredients, he has simply concluded that the petitioner is guilty of sub-letting the premises in question.
14. Clause (b) of Section 12 (1) of the Act comes into play when a tenant has allowed some one else (other than a member of his family) to occupy the building subsequent to the inception of his tenancy.
15. The word 'occupation' In relation to this clause has been the subject-matter of interpretation in a number of decisions of this Court as well as of the Apex Court.
16. In the case of Harbans Lal v. Jag Mohan Saran, (1985) 4 SCC 333, their Lordships of the Supreme Court held that the occupation of a person envisaged under clause (b) of Section 12 (1) cannot possibly include the occupation by any person as the agent of the tenant, if the contrary construction is accepted, and it is held that a person who is a mere agent or servant of the original occupant falls within the contemplation of Section 12 (1) (b), it would be impossible for the original occupant to engage any person to assist him in the discharge of his responsibilities in the place where he does so. It cannot be conceived that the U. P. Legislature Intended a person, occupying a building as a tenant, to live or operate In such a building with members of his family and no one else.
17. Where a person sits and carries on business for and on behalf of the original tenant, it cannot be said that the original tenant has allowed the building to be occupied by that person within the meaning of Section 12 (1) (b).
18. It would thus be seen that the word 'occupation' in relation to clause (a) of Section 12 (I) of the Act has not been used in a wider sense and has a different meaning than the mere presence or possession of any third person in the tenanted occupation. Occupation of course in itself includes the element of possession but the converse is not true. The mere presence or possession of a third person in the tenanted building would not by itself tantamount to his occupying the building within the meaning of clause (b) of Section 12 (1), unless such possession and occupation of that person is shown to be in his own independent rights and not on behalf of the tenant. It is not necessary that the tenant-in-chief should be ousted altogether from the tenanted building. There may be cases where the tenant may be in joint possession with a third person, yet the possession of such a third person may amount to occupation within the meaning of clause (b), where it could be shown that the possession/occupation of that person along with tenant-in-chief was in his own Independent right and not for and on behalf of the tenant. It is also not essential in every case that the third person should be in actual physical possession of the tenanted accommodation. There may be a case where such a third person may be allowed to carry on his business in the tenanted accommodation in his own independent right through his agents and servants without his being in actual physical possession of the premises. In that event his constructive possession will also amount to his occupation in the building in his own independent right. It is not possible to give an exhaustive list of the cases where the tenant can be deemed to have ceased to occupy the building on account of his allowing a third person to occupy the same. The question will have to be answered on the facts of each case and no hard and fast rule can be laid down in this regard.
19. Therefore, in order to attract clause (b), first of all it has to be found that the building is in occupation of a person other than the tenant and that person is not a member of the tenant's family as defined by clause (g) of Section 3. The enquiry does not end with these findings, and a further probe is to be made to find out whether the occupation of that third person is in his own rights and not on behalf of the original tenant. When all these facts are proved to exist only, then the legal fiction can be applied to for the assumption of deemed vacancy and not otherwise.
20. Sub-letting also can be presumed by a legal fiction, under the -Explanation to Section 25 of the Act, which lays down that 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 the building or part thereof.
21. In the case of Harish Tandon v. A. D. M., Allahabad, 1995 (1) ARC 220, the Supreme Court held that the word 'sub-letting' has to be read with fiction created under Section 25 read with Section 12 (1) (b) or Section 12 (2) of the Act.
22. Therefore, before a tenant is said to have sub-let the tenanted accommodation, it is necessary that the conditions stated in either of the Section 12 (1) (b) or Section 12 (2) are found to exist. In the absence of specific findings as to existence of such conditions, sub-letting cannot be presumed.
23. In the present case, the vacancy has been declared only on the basis of an ipse dixit finding that the tenant has sub-let the building in question. This conclusion of sub-letting in the absence of clear and specific findings with regard to the existence of conditions envisaged under Section 12 (1) (b) or Section 12 (2) could not be drawn in law. As already stated above, presumption of sub-letting can be drawn only on the proof of existence of certain facts, i.e., that the tenant has allowed the tenanted building to be occupied by any person in his own rights, who is not a member of his family or he has admitted any such person as a partner or a new partner. There is no clear finding that Kamran or any other person was occupying the premises in question in his own rights. There is also no finding that the labourers found working at the time of inspection made by the Rent Control inspector were engaged by any third person and not by the sons of the petitioner, who according to the petitioner's case were carrying on their business on account of the old age of the petitioner.
24. In the case of Jagannath Frosod v. Smt. Angoort Devi. 1984 ALJ 379, it was held by the Supreme Court that merely from the presence of a person other than the tenant in the shop, sub-letting cannot be presumed. As long as control over the premises is kept by the tenant, and the business run in the shop is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the Court to assume a sub-tenancy merely from the fact of presence of an outsider.
25. This Court in the case of Roshan Lal v. Raj Kumar and others, 1985 (2) RCJ 710, held that from the very fact that the business in each of the two shops was styled in different names having different Sales Tax numbers, it could not be concluded that the tenant has nothing to do with the business run in the shops.
26. In the present case, in the order declaring vacancy the essential findings required to be recorded for showing the existence of any of the conditions as envisaged in clause fa) or (b) of sub-section (I) or sub-section (2) of Section 12, are wholly lacking, therefore, It is not possible for this Court to arrive at the conclusion either way whether there existed a deemed vacancy within the meaning of sub-section (4) of Section 12 of the Act so as to make it open to the District Magistrate to exercise his powers of making order of release or allotment under Section 16 of the Act. The order declaring vacancy, therefore, cannot be sustained and a fresh decision on the question of deemed vacancy is necessitated.
27. Since the existence of vacancy either actual, expected or deemed, is sine-qua-non for making an order of allotment or release under Section 16 of the Act, and once the order declaring vacancy has been quashed as Illegal, the subsequent order of release is also rendered invalid. The R.C. and E.O. gets jurisdiction to make an order of release or allotment under Section 16 only where a vacancy either actual or expected or deemed one within the meaning of Section 12 (4) of the Act has arisen.
28. For the above reasons, this writ petition is allowed. Both the impugned orders dated 9.2.1995 and 16.2.1995 are set aside. The R.C. and E.O. is directed to re-examine the question of vacancy afresh in accordance with law and in the light of observations made above expeditiously preferably within two months from the date a certified copy of this order is produced.
29. In the circumstances, parties are directed to bear their own costs.