Girja Shankar
Tiwari & Anr Vs. Hirday Ranjan Chakraborty & Anr [1988] INSC 313 (5 October 1988)
Mukharji,
Sabyasachi (J) Mukharji, Sabyasachi (J) Rangnathan, S.
CITATION:
1989 AIR 151 1988 SCR Supl. (3) 426 1988 SCC (4) 758 JT 1988 (4) 147 1988 SCALE
(2)1511
ACT:
U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972--Section
12--Deemed vacancy of building- -When arises-- When an employee of a tenant
company without consent but with knowledge of landlord occupies premises--
Whether it can be said that there is a deemed vacancy. Held- -Yes.
HEAD NOTE:
Certain
premises in Rae Bareli were given on rent to an Aushadhalaya in the year 1946
or 1947 by the landlord. The Aushadhalaya went out of existence but an employee
of the same, respondent No. I continued occupying the said premises. He also
paid rent in the name of the tenant and not in his own name.
Appellant
No. I moved an application under section 12 of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act for declaring that the premises
had fallen vacant and for allotment of the said premises in his favour.
Section
12 of the Act provides that where a landlord does not occupy the building or
substantially removes his effect therefrom and allows to occupy any person who
is not a member of his family then the vacancy should be deemed. The Rent
Controller found that the premises was not occupied by the tenant but by a
person other than the tenant. The Rent Controller held that the shop was vacant
and allowed the application. In an appeal the High Court dismissed the
application. The High Court considered respondent No. 1 to be a part of the Aushadhalaya
and the rent that was being paid and credited all along in the name of the Aushadhalaya
to be treated as the rent on behalf of the respondent No. 1.
Hence this
appeal by special leave. Affirming the decision of the Rent Controller and
setting aside the decision of the High Court, this Court,
HELD:
In this case, admittedly, the property is not being occupied by the members of
the tenant's family. It is not vacant but it is occupied by Respondent No. l,
who was not the tenant at any relevant time. In our opinion, the deemed vacancy
of the premises though not actually vacant, has happened. [431E] PG NO 426 PG
NO 427 The tenant of the premises in question has long left.
An
employee without the consent though, perhaps with knowledge of the landlord was
occupying the premises but in such circumstances it cannot be held as the High
Court has done that there was no deemed vacancy. The High Court was in error in
holding that the Aushadhalaya was a tenant through the petitioners. The tenant
was the Aushadhalaya and the proprietors thereof. It is an admitted factual
position and the High Court recognised that the Aushadhalaya was closed in the
year 1976. The High Court commented that the landlord recognised Respondent No.
1 as a tenant and was charging rent from him. That is wrong and incorrect.
There was no such evidence. No rent was charged from Respondent No. 1. He never
paid any rent. The rent was paid in the name of the Aushadhalaya by Respondent
No. l. [431F-H; 432A] The Landlord knew that there was a change in the
occupation but the landlord did not consent as there was no evidence and
Respondent No.1 has not said that there was any change of tenancy. The tenancy
was not in the name of Respondent No. 1. The premises, indubitably, was in the
name of the Aushadhalaya. It was not in occupation or possession of the Aushadhalaya,
its proprietors or partners, and at the relevant time Respondent No.1 did not
claim or purported to occupy the same on behalf of the Aushadhalaya. He claimed
and asserted his own right of occupation. He was not the tenant. The premises,
indubitably, was occupied by the person other than the tenant without his
consent but perhaps with the knowledge of the landlord. [432B-D]
CIVIL
APPELLATE JURISDlCTION: Civil Appeal No. 3773 of 1988.
From
the Judgment and Order dated 15.2.1988 of the Allahahad High Court in Writ
Petition No. 3310 of 1983.
R.K.
Jain, R.B. Mehrotra and Pradeep Mishra for the Appellants.
G.C. Mathur
and K.P. Gupta for the Respondents.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Leave granted.
The appeal is disposed of by the following judgment.
This
appeal arises out of the judgment and order of the High PG NO 428 Court of
Allahabad, Lucknow Bench, dated 15th February, 1988. It relates to the premises being shop No. 483/10 in House
No. 483/7, ward No. 11, Station
Road, Rae Bareli, in
U.P., hereinafter described as premises in dispute. The house was situated on
the first floor of the aforesaid shop.
The
landlords of the aforesaid shop and house at present are S/Sh. Anand Kumar Agnihotri
and Raj Kumar Agnihotri, being the sons of late Sh. Krishna Chandra Agnihotri,
residents of Station Road, Rae Bareli.
After
the death of the owner, Sh. Krishna Chandra Agnihotri, the entire property was
divided amongst his sons and the present shop and house have fallen in the
share of the aforesaid two sons. The appellant is the brother-in-law of the
said landlords of the premises in dispute. It appears that on 26th April, 1980 the appellant moved an application
before the Rent Control & Eviction Officer, Rae Bareli. that the premises
in dispute had fallen vacant and the same should be declared to be vacant and
also applied for allotment of the said premises in his favour.
The
Rent Controller held that the shop was vacant. As mentioned hereinbefore, the
proceedings started on an application which was moved by the appellant under
Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent &
Eviction) Act, 1972 hereinafter called the Act, for allotment of the premises
on the ground floor on the ground that the premises had fallen vacant. The
Inspector (Rent) made a local inspection and found that the respondent was
residing on the first floor whereas on the ground floor certain medicines were
found and the water and electric connections were in the name of the
respondent. Evidence had been adduced before the Rent Controller. On behalf of
the respondent it was contended before the Rent Controller that the premises
was not vacant and that the appellant, who had applied, was none other than the
landlord's wife's own brother.
The
High Court recorded that the building was taken on rent by M/s. Dhacca Swastic Aushadhalaya,
Station Road, Rae Bareli (hereinafter called 'the Aushadhalaya'), in the year
1946 or 1947. The Aushadhalaya was no longer in existence and the service of
the proceedings was effected at its Varanasi address. It further appears from the records that the respondent had
been doing the profession of Vaidya. On a conspectus of the evidence the High
Court was of the view that the Aushadhalaya had been a tenant through the
respondent at the inception. The business, however, was closed in the year 1976
and the respondent was carrying on PG NO 429 his own business. The Rent
Controller found that the tenant was not in occupation and the tenant, the Aushdhalaya,
nor its proprietor. The present respondent was not the tenant but the premises
was occupied by Hirday Ranjan Chakraborty, the respondent herein. The Rent
Controller found that the premises was not occupied by the tenant but by other
person other than the tenant. The High Court found to the contrary.
The
rent was being paid, but, as it appears, in the name of the tenant, and not in
the name of the respondent in his own name. The rent was paid by the respondent
in the name of the Dhacca Swastik Aushadhalaya, but the premises was being
occupied by the person other than the tenant.
Section
12 of the Act provides for deemed vacancy, which is as follows:
"
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 a part
thereof it-- (a) he has substantially removed his effects there from, 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 mem bers 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 admitsa 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.
(3) In
the case of a residential building, if the tenant or any member of his family
builds or otherwise acquires in a vacant state or gets vacated a residential
building in the same city, Municipality, notified area of town area in which
the building under tenancy is situate, he shall be deemed to have ceased to
occupy the building under his tenancy:
Provided
that if the tenant or any member of his family had built any such residential
building before the date of commencement of this Act, then such tenant shall be
deemed PG NO 430 to have ceased to occupy the building under his tenancy upon
the expiration of a period of one year from the said date.
Explanation.--For the purposes of this
sub-section-- (a) a person shall be deemed to have otherwise acquired a
building, if he is occupying a public building for residential purposes as a
tenant, allottee or licensee;
(b) the
expression "any member of family" in relation to a tenant, shall not
include a person who has neither been normally residing with nor is wholly
dependent on such tenant.
(3-A)
If the tenant of a residential building holding a trans ferable post under any
Government or local authority or a public sector corporation or under any other
employer has been transferred to some other city, Municipality, notified area
or town area, then such tenant shall be deemed to have ceased to occupy such
building with effect from the thirtieth day of June following the date of such
transfer or from the date of allotment to him of any residential accommodation
(whether any accommodation be allotted under this Act or any official
accommodation is provided by the employer) in the city, Municipality. notified
area or town area to which he has been so transferred, whichever is later.
(3-B)
If the tenant of a residential building is engaged in any profession, trade,
calling or employment in any city, Municipality, notified area or town area in
which the said building is situate, and such engagement ceases for any reason
whatsoever, and he is landlord of any other building in ally other city,
municipality, notified area or town area then such tenant shall be deemed to
have ceased to occupy the first mentioned building with effect from the date on
which he obtains vacant possession of the last mentioned building whether as a
result of proceedings under section 21 or otherwise.
(4)
Any building or Part which a landlord or tenant has PG NO 431 ceased to occupy
within the meaning of sub-section ( 1), or sub-section (2), or sub-section (3),
sub-section (3A), or sub-section (3-B) shall, for the purposes of this Chapter,
be deemed to be vacant.
(5) A
tenant or, as the case may be, a member of his family, referred to in
sub-section (3) shall, have a right, as landlord or any residential buildings
referred to in the said sub-section which may have been let out by him before
the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction) (Amendment) Act, 1976 to apply under clause (a) of
sub-section (1) of section 21 for the eviction of his tenant from such building
notwithstanding that such building is one to which the remaining provisions of
this Act do not apply." In fact, the said Section provides that where a
landlord does not occupy the building or substantially removes his effects therefrom
or allows to occupy any person who is not a member of his family, then the
vacancy should be deemed.
In
this case, admittedly, the property is not being occupied by the members of the
tenant's family. It is not vacant but i is occupied by Hirday Ranjan Chakraborty,
who was not the tenant at any relevant time. In our opinion, the deemed vacancy
of the premises though not actually vacant, has happened. The Rent Controller
was right in coming to that conclusion. The error into which The High Court
fell was in considering Hirday Ranjan Chakraborty to be a part Or the Aushdhalaya
and the rent that was being paid and credited all along in the name of the Aushdhalaya
to be treated as they rent on behalf of Hirday Ranjan Chakraborty.
The
tenant of the premises in question has long left.
An
employee without the consent though, perhaps, with knowledge of the Landlord
was occupying the premises, but in such circumstances it cannot be held as the
High Court has done that there was no deemed vacancy. 'The High Court was in
error in holding that the Aushdhalaya was a tenant through the petitioners. The
tenant was the Aushdhalaya and the proprietors thereof. It is an admitted
factual position and the High Court has recognised that the Aushdhalaya was
closed in the year 1976. The High Court commented that the landlord recognised Sh.
Hirday Ranjan Chakraborty as a tenant and was charging rent from him. That is
wrong and incorrect. There was no such evidence.
PG NO
432 No rent was charged from Hirday Ranjan Chakraborty. He never paid any rent.
The rent paid in the name of the Aushdhalaya by Hirday Ranjan Chakraborty.
The
High Court has rightly commented that the landlord knew that there was a change
in the occupation but the landlord did not consent as there was no evidence and
Hirday Ranjan Chakraborty has not said that there was any change of tenancy.
The tenancy was not in the name of Hirday Ranjan Chakraborty. The premises,
indubitably, was in the name of the Aushdhalaya. It was not in occupation or
possession of the Aushdhalaya, its proprietors or partners, and at the relevant
time Hirday Ranjan Chakraborty did not claim or purported to occupy the same on
behalf of the Aushdhalaya.
He
claimed and asserted his own right of occupation. He was not the tenant. The
premises, indubitably, was occupied by a person other than the tenant without
his consent but perhaps with the knowledge of the landlord.
In
those circumstances, in our opinion, the High Court was not right. The Rent
Controller in his order had held that Hirday Ranjan Chakraborty could not be
given the benefit of Regulations 6 & 14 of the Act because at no stage the
landlord had accepted him as the tenant. In view of this categorical finding,
it could not be said that Hirday Ranjan Chakraborty was occupying the premises
in question with the consent of the landlord.
In The
premises the judgment and order of the High Court are set aside. The order of
the Rent Controller is restored.
C. M.
P. No. 17425 of 1988 In view of the above order, no order is necessary in this
application, and the same is accordingly dismissed.
H.S.K.
Appeal allowed.
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