MOHD ISHAQ Vs. STATE GOVT OF UTTAR PRADESH
LAWS(ALL)-1965-11-19
HIGH COURT OF ALLAHABAD (FROM: LUCKNOW)
Decided on November 08,1965

MOHD. ISHAQ Appellant
VERSUS
STATE GOVT.OF UTTAR PRADESH Respondents


Referred Judgements :-

SANGAM LAL JAISWAL V. COMMR. VARANASI DIVISION [REFERRED TO]
LACHMI NARAIN V. RENT CONTROL AND EVICTION OFFICER [REFERRED TO]
DR. A.C. DASS V. T.R.O. AND D.S.O.,LUCKNOW [REFERRED TO]
RAM BHAROSE VS. AJEET KUMAR [REFERRED TO]
MAHABIR PRASAD VS. KEWAL KRISHNA [REFERRED TO]
N C AGARWAL VS. KRISHAN LAL MEHRA [REFERRED TO]



Cited Judgements :-

RAM MANI DEVI VS. RENT CONTROL AND EVICTION OFFICER [LAWS(ALL)-1975-1-13] [REFERRED TO]
DAMYANTI MANOOCHA VS. ADDITIONAL DISTRICT JUDGE COURT NO 9 FAIZABAD [LAWS(ALL)-2015-5-32] [REFERRED TO]
H S BHATNAGAR VS. ADDL DISTRICT JUDGE DEHRADUN [LAWS(ALL)-1995-8-55] [REFERRED]
SHANTI MOHAN AND OTHERS VS. NIRANJAN SINGH AND ANOTHER [LAWS(ALL)-1980-7-93] [REFERRED TO]
RAM AGYAN SINGH VS. MURLI DHAR AGARWAL AND OTHERS [LAWS(ALL)-1969-5-20] [REFERRED]


JUDGEMENT

Desai, C.J. - (1.)THE following question has been referred to a Full Bench by a Division Bench particularly for reconsideration of the decision in Dr. A. C. Dass v. T.R.O. and D.S.O. Lucknow, 1962 All LJ 553:-- "When a tenant-in-chief vacates an accommodation by subletting it to another person can the District Magistrate pass an order under Section 7 (2) of the Act to him to sublet it to another person or to his landlord, e.g. the owner of the accommodation, to let it to another person. In other words, who is the landlord of the accommodation that falls vacant--the tenant-in-chief or the owner--who can be ordered to let?"
(2.)SINCE an abstract question is referred to us we are not concerned with the facts and I do not consider it necessary to reproduce them. The question is an abstract question of law, the answer to which does not depend upon the facts at all.
"Accommodation" is defined in section 2 (a) of the Temporary Control of Rent and Eviction Act to mean residential or non-residential accommodation in any building or part of a building. Really this is not a definition but only an explanation because in defining a word one cannot use that word itself. Accommodation is not a concept like a right but is a tangible property, meaning a building or a part of a building used for residential or non-residential purpose. Whether in respect of a building the whole of it is an accommodation or part of it is an accommodation or whether it consists of more than one accommodation depends upon circumstances such as tenancy contract. See 1962 All LJ 553 (supra) to which I was party. In N. C. Agarwal v. Krishan Lal Mehra, 1960 All LJ 755: (AIR 1961 All 104 FB), Dayal, J. said at p. 757 (of All LJ): (at p. 106 of AIR) that "the definitions of 'landlord' and 'tenant' fix the accommodation to be the accommodation for which rent is payable by the tenant to the landlord" and that "the power of determining the unit of tenancy vests in the landlord", it being "his right to let accommodation to a tenant." In these observations landlord means the owner and tenant, his tenant and do not include a tenant-in-chief as against his subtenant. If the whole building is let the whole of it is an accommodation. If it is let in two parts each part is an accommodation. Though a building in occupation of its owner is an accommodation the Act does not apply to it so long as it remains in his occupation, provided that it had not applied any time in the past also. In respect of a building which was always in occupation of the owner and never let it becomes governed by the Act when he ceases to occupy it or a part of it. If he ceases to occupy the whole Section 7 applies to the whole and the whole becomes one accommodation. If he ceases to occupy a portion only that portion becomes an accommodation governed by Section 7 and the remaining portion, though constituting another accommodation, is not governed by it. When an owner lets a building or a part of it to a tenant there comes into existence one and only one accommodation governed by the Act. When the tenant sublets the whole of it or a portion of it another accommodation does not come into existence on the subletting, not even when it is of a portion. Consequently accommodation in the case of a building let to a tenant-in-chief who has sublet, whether the whole of it or a portion of it means the whole building; in other words, the subletting does not bring into existence another accommodation, accommodation being a tangible property. On reconsideration, J think that a statement to the contrary made by me in Dr. A. C. Dass, 1962 All LJ 553, at p. 555 is not correct. A building, which has become an accommodation governed by the Act, remains one accommodation and cannot become two accommodations merely on its being sublet in whole. If another accommodation does not come into existence when the whole is sublet another should not come into existence also when a portion is sublet. A portion of an accommodation remains an accommodation.

"Landlord" is defined in Clause (c) of Section 2 to mean a person to whom rent is payable by tenant In respect of an accommodation and tenant" Is defined in Clause (g) to mean a person by whom rent is, or but for a contract, would be payable. When a person is liable to pay rent (or is excused from the liability by a contract) he is a tenant and the other person, a landlord. When an owner lets an accommodation to another person he becomes the landlord and the other person, a tenant and when the tenant sublets it, the tenant becomes a landlord and the sub-tenant, a tenant. Thus a tenant-in-chief is the landlord of his sub-tenant and the sub-tenant is a tenant as against the tenant-in-chief: See Dr. A. C. Dass, 1962 All LJ 553, (supra) and Ram Bharose v. Ajeet Kumar, 1952 All LJ 280: (AIR 1952 All 806).

(3.)THE law regarding landlord and tenants is contained in the Transfer of Property Act and continues to be in force except to the extent it is altered by the (Temp.) Control of Rent and Eviction Act. Dayal J. said in N. C. Agarwal's case, 1960 All LJ 755 at p. 757: (AIR 1961 All 104 at p. 106 (FB)) that "the Rent Control and Eviction Act.... has to be strictly construed" and that "the power of control is clearly defined and cannot extend to matters not included In the Act. An accommodation governed by the Rent Control and Eviction Act in certain matters remains governed by the Transfer of Property Act in other matters. Under Section 111 of it a lease is determined in several ways including express surrender, i.e., the tenants yielding up his interest under the lease to the landlord by mutual agreement between them and implied surrender. THEre is no determination of a lease by abandonment; even if a tenant abandons the accommodation or ceases to occupy it he remains a tenant subject to all liabilities of a tenant. In the absence of a contract a tenant is entitled to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property while remaining liable under the lease vide Section 108 (j). THE Rent Control and Eviction Act contains no provision laying down when a lease of an accommodation is determined; therefore, Section 111 of the Transfer of Property Act applies to an accommodation in respect of this matter. As regards subletting, there is Section 7 (3) in the Act laying down that no tenant can sublet any portion of the accommodation except with the permission in writing of the landlord and of the District Magistrate previously obtained, if the accommodation is governed by the Act and this provision prevails over that contained in Clause (j) of Section 108.
Under the Transfer of Property Act a tenant loses the right to remain in possession when his lease is determined and If he continues to be in possession he oan be at once used for ejectment by the landlord. Section 8 of the Control of Rent and Eviction Act Imposes a restriction on this right of the landlord to sue for his ejectment; he cannot sue unless he has obtained the District Magistrate's permission or the tenant has done one of the specified wrongs Including that of subletting the whole or any portion of the accommodation without his permission. It is to be noted that the restriction is on the landlord's right to use for ejectment and not on his right to determine the tenancy by a notice to quit, forfeiture etc. conferred by Section 108 of the Transfer of Property Act. The right to determine the tenancy Is not affected and only the right to sue for ejectment after the determination is affected by the Control of Rent and Eviction Act. See Dr. A. C. Dass, 1982 All LJ 553, at p. 556. If the District Magistrate does not grant permission or the tenant has not done any of the wrongs mentioned in Section 3 (1), he cannot be sued for ejectment even though his tenancy has been determined. It may sound anomalous but that is the position.

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