DESAI,C.J. - (1.) JUDGEMENT I agree with my brother S.K. Verma that the first question should be answered in the negative and the second, in the affirmative. I regret that I cannot agree with my learned brother Dwivedi.
(2.) THE U.P. (Temporary) Control of Rent and Eviction Act, No. 3 of 1947 has been enacted "to provide for the continuance during a limited period, of powers" to control the letting and the rent of residential and non-residential accommodation and to prevent the eviction of tenants therefrom." The letting is controlled through the provisions contained in Ss. 7, 7-A, 7-D and 7-E, the rent is controlled through the provisions in Ss. 4, 5 and 6 and eviction of tenants is prevented through the provisions in Ss. 3, 7-C, 14 and 15. The preamble only explains why these provisions and other provisions have been enacted; it itself is not an enactment and is not required to be enforced by courts. What is to be enforced by the courts is the provisions contained in the Act and they may resort to the preamble only to remove ambiguities or doubts existing in the provisions. If a provision is clear the preamble becomes irrelevant. In these petitions we are concerned with the provisions relating to the control of letting and the most important provision dealing with this matter is S. 7. Sub-Section (1) of it simply requires notice about an accommodation becoming vacant to be given to the District Magistrate and does not by itself impose any control on letting. A notice is to be given to the District Magistrate so that he may pass an order to control the letting of the accommodation in exercise of the power conferred by Sub-Section (2). The power conferred by Sub-Section (2) is to require by a general or special order, a landlord to let or not to let to any person any accommodation which is vacant, or has fallen, or is about to fall, vacant. The Sub-Section is unhappily worded. There are two orders that a District Magistrate is empowered to pass, (1) an order requiring a landlord to let an accommodation and (2) an order requiring a landlord not to let an accommodation. An order requiring the letting must in its very nature be an order requiring the letting to a particular person. An order prohibiting the letting would ordinarily be an order prohibiting the letting to any person; there would hardly be any occasion for a District Magistrates prohibiting the letting to a particular person. A general order is an order addressed to all landlords or to a landlord in respect of all accommodations owned by him. A special order is an order to a particular landlord in respect of a particular accommodation that has fallen vacant or is about to fall vacant. A special order can require the landlord to let the accommodation to a particular person or prohibit him from letting it to "any person". There cannot be a general order requiring a landlord to let the accommodation; if nobody wants it, it is not possible for the landlord to let it out. "To let" means to enter into a relationship of landlord and tenant through a contract and, as every contract requires the consent of the parties, there cannot be a letting by a landlord unless there is a person willing to be a tenant. Consequently a landlord cannot be ordered just to let his accommodation; if a person wants to take it on lease the landlord may be ordered to let it to him, but a general order "let it to any person" cannot always be complied with by the landlord and could not, therefore, he within the contemplation of the legislature. The words "to any person" cannot always go with the words "to let" and also with the words not to let. An order "Let to any person" does not, as explained above, make much sense and does not appear to have been within the contemplation of the legislature. As far as prohibition is concerned, the legislature seems to have contemplated the order "Do not let to any person without my permission" rather than an order "Do not let to a particular person without my permission". So in the case of an order to let, a particular person must be specified in it, whereas in the case of an order not to let the words "to any person" have to be used. The legislature has created confusion by using the words to mean in one case "a particular person" and in the other case "to any person". Whatever may be the defects in the language used in the Sub-Section the following orders are undisputedly within a District Magistrates powers : 1. Do not let any accommodation which is or has fallen vacant or is about to fall vacant to any person without my permission. 2. Let such and such accommodation which is or has fallen vacant or is about to fall vacant to such and such person. An order passed under Sub-Sec. (2) becomes operative, or a question of complying with it arises, only when an accommodation has fallen vacant because it deals with what should be done, or should not be done, after it has become vacant. Since the provision occurs in the same section in which there is the provision about the giving of information about the vacancy of an accommodation and since the Act itself does not define when an accommodation falls vacant it may be assumed that an accommodation falls vacant only in the manner laid down in Sub-Section (1), i.e. when a landlord, ceases to occupy it, whether with or without intention to let it, or when the tenancy is terminated, or when the tenant during the continuance of his tenancy vacates or ceases to occupy it, or when the State releases it from requisition. When a tenant vacates or ceases to occupy it or when his tenancy is terminated the accommodation is vacant within the meaning of Sub-Section (2) and the District Magistrate becomes empowered to order the landlord to let it to a particular person. Under R. 3 of the Rules framed by the State Government under S. 17 he is required to make such an order within thirty days of the receipt of the information given to him by the landlord under Sub-Section (1). As he becomes empowered to pass such an order as soon as the accommodation falls vacant or he receives intimation about its being about to fall vacant and remains empowered for a period of thirty days from the date of the receipt of the information it must be held that the accommodation remains vacant for thirty days, unless it has been let in compliance with a special order of the District Magistrate. If there has been a general order prohibiting a landlord from letting an accommodation without his permission, no landlord can let an accommodation within this period unless the District Magistrate has passed an order requiring him to let it. Even if there has been no general order the existence in the District Magistrate of the power to order him within thirty days to let the accommodation to a particular person denies any right in him to let it otherwise during this period and, if he still does let it, it does not make the accommodation not vacant. An accommodation that has fallen vacant remains vacant so long as an order by the District Magistrate to let it to a particular person has not been passed or the time within which he can pass such an order has not expired.
(3.) THERE are only two kinds of orders contemplated by Sub-Section (2), either an order to let or prohibitive order not to let; there is nothing like an order "occupy yourself" expressly contemplated by the legislature and obviously there was no need for its making a provision for it because if a landlord is prohibited from letting the accommodation he is thereby not prohibited from occupying it himself but left free to occupy it himself. The rights of a landlord as the owner of the accommodation remain intact except so far as they are curtailed by the provisions of the Act. The only restrictions on his powers are exactly those that have been imposed by its provisions. He is not prohibited from occupying an accommodation himself unless there is an order requiring him to let it to a particular person. No landlord can be compelled to keep his accommodation vacant and can be prevented from occupying it himself even though it is not required to be let. Therefore, an order requiring him not to let an accommodation leaves him free to occupy it himself and consequently the legislature did not provide for an order like "Occupy yourself". When a landlord is free to occupy an accommodation himself there is no question of his being permitted to occupy it himself and District Magistrate has not to give him any such permission. If he desires to let a landlord occupy an accommodation himself all that he has to do is to refrain from passing an order under Sub-Section (2), or, at the most, to pass an order not to let it to any person. Sub-Section (2) only confers power upon a District Magistrate to pass an order; it does not compel him to do it and it is open to him to refrain from passing an order contemplated by it even on receipt of information about vacancy of an accommodation. A landlords occupying an accommodation himself is not illegal when there is no general or special order requiring him to let it or when there is a general order requiring him not to let it; therefore, no order releasing the accommodation for his occupation is required. In any case a special order "Do not let it to any one" is enough. Rule 6 of the Rules made by the Government is, therefore, inappropriately worded; instead of the words "permit the landlord to occupy it himself" there should have been some such words as "not require the landlord to let it to any person" Rule 6 should be understood in this sense. Since it is not within the purposes of the Act to empower a District Magistrate to pass any order other than that mentioned in S. 7, R. 6 should not be interpreted so as to mean that he has the power to pass a different kind of order. ;