Yatindra Singh, J. - (1.) Is there vacancy if the sub-tenant leaves the premises? Who is entitled to have his release application considered first : the landlord owner or the Chief tenant? These are the questions involved in these two writ petitions. This is how they arise. FACTS
(2.) There is big house situate at 38, Lytton Road, Dehradun. Sri H.S. Bhatnagar is the owner of the same (the landlord owner for short). A part of this is occupied by him and a part by Dr. Diwan Singh as his tenant (the Chief tenant for short). Dr. Diwan Singh let out a part of the portion in his tenancy to one Sri B.M. Puri (the sub-tenant for short). The landlord-owner says this was some time in 1968 without obtaining any permission from the landlord or the District Magistrate. The chief tenant does not agree. He says it was some time in the year 1960 after taking permission from one Data Ram, brother of the mortgagee of the property at that time. The Chief-tenant further says that subsequently the land lord-owner gave permission ; the order for regularisation was passed in favour of the sub-tenant on 13.7.1970. The landlord-owner disputes this.
(3.) The sub-tenant left the portion in his possession on 3.1.1978. This is the specific date given by the landlord-owner. There is no finding by any Court on which date he has left the premises and removed his effects from there. But Sri M.S. Negi, appearing for the Chief-tenant does not dispute it. The parties agree that the sub-tenant left the premises on 3.1.1978 and removed his effects therefrom. There is a physical vacancy in respect of the portion in possession of the subtenant. Whether this amount to vacancy in law is another question ; this is to be decided in this case.;