Dr. S.N. Ghosh vs Rent Control and Eviction Officer and Others

K.N. Singh, J.—This is a petition under Article 226 of the Constitution challenging order of the Rent Control (Officer, Allahabad, dated 2-11-1974, allotting the house in dispute to Respondent No. 3, S.P. Dwivedi, as well as against the order of the 7th Additional District and Sessions Judge, Allahabad, dated 10-12-1974 dismissing the Petitioner''s appeal against the order of allotment.

Dr. S.N. Ghosh, the Petitioner, is Professor and Head of the Department of Applied Physics in the University of Allahabad. He was residing in house No. 20/44, Jawahar Lal Nehru Road, Allahabad, as a tenant for the last 14 years. He obtained two years'' leave without pay from the University of Allahabad and joined Jadavpur University in West Bengal to establish and organise a department for the study of space science. The Executive Council of Allahabad University granted two years'' leave to him with effect from 26-4-1974 during which period he was permitted to write books, deliver lectures to other Universities, visit foreign countries as Visiting Professor and join Universities. The Petitioner''s lient however, continued to remain in the University of Allahabad on the post of Professor and Head of the Department of Applied Physics. He further continued to remain a member of the Executive Council and Academic Council of Allahabad University and in that connection he was required to attend the meetings of the said bodies frequently. Before proceeding to Jadavpur University Dr. Ghosh sent a letter to the Rent Control and Eviction Officer on 27-4-1974 and forwarded copy of the same to the District Magistrate and landlord informing them that he waS temporarily going to Jadavpur University and that he was not vacating the building in which he had been residing and he had no intention of leaving or. vacating the house and that no action should be taken on arty application for allotment unless information was given to him in that respect.

It appears that S.P. Dwivedi, Respondent No. 3 made an application for allotment of the house in question. The Rent Control and Eviction Officer directed the Inspector to hold an enquiry and submit his report. On 20-5-1974 the Rent Control and Eviction Inspector submitted his report and stated that on enquiry he found that one G.K. Mukerji was residing in the house. He suggested that notice be issued to G.K, Mukerji as to how he was residing in the house without any allotment order and further enquiry be made from the Vice Chancellor of the University of Allahabad to ensure correct position as to whether the Petitioner was to come back to the University again. The Rent Control and Eviction Officer did not hold any enquiry, instead he declared vacancy. The Petitioner as well as Respondent No. 3 filed affidavits before the Rent Control and Eviction Officer and contested allotment proceedings. The Petitioner contended that he had temporarily gone to Jadavpur University and he had not substantially removed his house-hold effects from the house and G.K. Mukerji was residing in the house as caretaker to look-after his belongings, there was no vacancy. His contention was, however, not accepted and the Rent Control and Eviction Officer by his order dated 2-11-1974 allotted the premises in question to Respondent No. 3. The Petitioner challenged that order in appeal before the District Judge but the order of allotment was affirmed in the appeal by the 7th Additional District and Sessions Judge, Allahabad, by his order dated 10-12-1974. Aggrieved the Petitioner has filed the present petition challenging the aforesaid two orders.

Learned Counsel for the Petitioner urged that since there was no valid allotment order could be issued, the Rent Control and Eviction Officer acted without jurisdiction in allotting the house in question to the Respondent No. 3. He further urged that the findings recorded by the two authorities suffer from manifest errors of law and the findings are perverse. Both the authorities held that the Petitioner had allowed G.K. Mukerji to occupy a portion of the house although he was not a member of his family hence there was vacancy as contemplated by Section 12(1)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the Act). Section 12 creates a legal fiction for deeming vacancy on the existence of certain circumstances enumerated therein. The section contains four sub-sections. Sub-section (1) is relevant for the purpose of the instant case which is in the following terms:

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 if-

(a) he has substantially removed his effects therefrom, 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 members of his family have taken up residence, not being temporary residence, elsewhere.

The above Sub-section contemplates three sets of circumstances, on the existence of any of them deeming provision is attracted. Clause (a) contemplates that if the landlord or the tenant substantially removes his effects from the building, vacancy shall be deemed to have taken place. Clause (b) contemplates that if the landlord or the tenant permits the building in question to be occupied by any person who is not a member of his family there will be vacancy. Clause (c) contemplates that in case of residential building if the landlord or the tenant as well as the member of his family as defined under the Act take up residence elsewhere not being temporary residence, the deeming provision shall come into play and the Rent Control and Eviction Officer will be entitled to declare a vacancy in the building and allot the same. Section 11 of the Act prohibits letting of any building except in pursuance of an allotment order issued u/s 16 of the Act. The Act prohibits tenant as well as landlord to allow any person to occupy any building or part thereof except in pursuance of an allotment order issued u/s 16 of the Act. In a case where a landlord or a tenant contravenes these provisions and allows any other person who is not a member of his family to occupy the building or a portion there of, the Act does not recognize him as a valid occupant and for that purpose Section 12 has been enacted to create a legal fiction so that on the existence of the circumstances enumerated therein vacancy may be declared even though the building may physically be under the occupation of some person.

A careful reading of the three Clauses (a), (b) and (c) of Section 12(1) makes it amply clear that the legislature intended that if the tenant or landlord removes his effects substantially from the building in that case legal fiction would be attracted. The expression "substantially removing his effect" is of great significance. 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 house-hold effects from the accommodation in question. Clause (b) is attracted when a tenant or landlord allows any person who is not a member of his family as defined in Section 2(g) of the Act to occupy the building. This provision is intended to prevent sub-letting and unauthorised occupation [without allotment order. But the material question then arises as to whether it is open to a tenant to appoint a caretaker to look after his house-hold effects and the building during the period of his temporary absence from the station. In enacting Clause (b) the legislature intended that the legal fiction should be applicable only when the tenant or the landlord allows the premises to be occupied by some other person surreptitiously with a view to defeat the provisions of the Act. The occupation by such a person if intended to be of a permanent nature the deeming provision would be attracted and vacancy would occur in law. But the legislature never intended that if a tenant goes out on leave or for tour for six months or for a year and in that case if the building is occupied by a servant or any of his family friend with a View to keep watch on his goods which may be kept in the building vacancy shall be declared or deemed to have occurred. It does not requite any argument that a servant is not family member as defined in the Act and if the Respondent contention is accepted even the occupation of the house by a servant in the absence of the tenant may attract the deeming provision to declare the building vacant. This was sever intended by the legislature in enacting Clause (b) of Sub-section (1) of Section 12, A family friend may be kept to keep watch on he house-hold effects of the tenant or the landlord during his temporary absence. In my opinion it makes no difference in law, if the tenant permits his family friend to occupy a portion of the accommodation as caretaker during his absence or if a servant is allowed to reside therein for keeping watch. What is material is the dominant intention of the tenant, if on enquiry it is found that the tenant had gone out and that he had vacated the premises and allowed another person to occupy the building under the guise of a family friend although he had no intention or necessity to reside in the building, the deeming provision would apply. But if it is found that the tenant had gone out temporarily and that he was to return back and continue to reside in the building, there would be no question of any vacancy. Occupation by a third person rules out a temporary occupation by caretaker or guest but if the person concerned is allowed to occupy the house exclusively on a permanent basis then the legal fiction would come into play and there would be vacancy. The determination of this question would therefore depend on the facts of each case, Similarly under Clause (a) if it is proved that the tenant has not substantially removed his effects from the house in question, the deeming provision would not come into play and the house cannot be declared vacant. It is well accepted principle that deeming provisions must be construed strictly. The expression "substantially" means that the tenant has removed almost all his belongings which may indicate his intention of not coming back to occupy the house in question. The deeming provision can, however, not be made applicable if it it is found that only part of the belongings of the tenant have been removed and his furniture luggage and other belongings are still kept in the house under the charge of a care-taker. As already discussed the real test to determine vacancy under the deeming provision is the intention of the tenant which can be inferred from the proved facts and circumstances. It is in this background that the Petitioner''s case is required to be considered.

In the instant case, the Rent Control and Eviction Officer committed patent error in declaring vacancy without giving any notice to the Petitioner who was admittedly a tenant of the house in question. He had already sent an application to the District Magistrate informing about his temporary absence from Allahabad, and in that application he had made a prayer that in case any proceedings were taken he should be given information but that was not done. Even the Rent Control and Eviction Officer, in his report dated 20th May, 1974, had suggested that before declaring vacancy enquiries may be made from the Vice Chancellor of the Allahabad University as to whether the Petitioner had permanently left Allahabad for joining his service at Jadavpur University. Admittedly the Rent Control and Eviction Officer did not make any enquiry from the Vice-Chancellor of the Allahabad University, instead on the very next day, i.e. on 21st May, 1974, he declared vacancy without giving any reasons. The order is quoted in paragraph 15 of the petition which does not contain any reasons. Since the Petitioner had already submitted an application to the District Magistrate before he left Allahabad, and had made a request that opportunity of hearing be afforded before declaration of vacancy, it was necessary for the Rent Control and Eviction Officer to give an opportunity to the Petitioner. The manner in which the Petitioner was not given any opportunity and no enquiry was held shows that the vacancy was declared without ascertaining correct facts. I am, therefore, of the opinion that the order of the Rent Control and Eviction Officer declaring vacancy was illegal. When the allotment proceedings were taken the Petitioner appeared and filed an affidavit. He also filed a certificate from the Registrar of the University that he held his lien in the University of Allahabad and had temporarily gone to Jadavpur University. The Petitioner had further asserted that his furniture and other house-hold belongings were still intact in the house and he has not substantially removed his house-hold effects, that G.K. Mukerji was permitted to reside in the house as a caretaker to keep watch over the belongings left in the house, that he was not charging any rent from G.K. Mukerji and that he has been paying rent to the landlord regularly. The Rent Control and Eviction Officer by his order dated 2nd November, 1974, allotted the premises to Respondent No. 3 without recording any specific findings on the questions raised by the Petitioner. In appeal the learned Additional District Judge also committed a patent error of law in holding that since the Petitioner had allowed G.K. Mukerji to occupy three rooms out of five rooms in his tenancy, the Petitioner had substantially vacated the house in dispute, consequently it followed that Mukerji was Petitioner''s sub-tenant. The learned Judge ignored the material evidence on record which indicated that G. K. Mukerji was using the three rooms as care taker and even in those three rooms Petitioner''s furniture was kept while other valuable goods were kept under lock and key of the Petitioner in two other rooms. The finding of the District Judge is solely based on the report of the Rent Control Inspector and not on any other material. Admittedly, the Petitioner had filed affidavit and a certificate from the Allahabad University. The learned District Judge failed to consider the material available on the record in support of the Petitioner''s case. As already noted, the Petitioner had filed a certificate from the Registrar of the Allahabad University that he had been given leave without pay and he held lien on the post and he is a member in the various bodies of the University and he was frequently required to attend the same, This material was placed by the Petitioner to show that he still continued to be in the service of the Allahabad University and that he had no intention to leave Allahabad, instead he had held his lien in the University and he was required to come to Allahabad to attend meetings of the various bodies of the University off and on. The learned District Judge rejected this document on a patently erroneous ground:

The very certificate of Sri B.M. Singh, Registrar, Allahabad University on which great reliance has been placed by the Appellant indicates that the Appellant has got his lien in Allahabad University and is now not working in the said University and has got employment somewhere else. As such this certificate of the the Registrar of Allahabad University also does not show that the Appellant is still in service in Allahabad University. This certificate goes to show that the Appellant is in service somewhere else having a lien in Allahabad University. Therefore, in view of the provisions of Section 12 of the aforesaid Act and the fact that Sri S.N. Ghosh has left Allahabad and is in service in Jadavpur University, Calcutta, I feel that he has vacated the premises in dispute by delivering unauthorised possession to Sri G.K. Mukerji.

The above observations of the learned Judge betray correct approach to the matter in question. The certificate of the Registrar clearly indicated that the Petitioner had gone out of Allahabad temporarily and that he was required to visit Allahabad for attending the meetings of various authorities of the University. As already discussed, the learned District Judge failed to record any finding as to whether the Petitioner intended to vacate the premises in question or to take residence elsewhere permanently. On the admitted facts, the Petitioner had not removed his house-hold effects. G.K. Mukerji was permitted to reside in the house to keep a watch, On these facts no reasonable person could have recorded a finding that the Petitioner''s intention was to vacate the premises and to allow another person to occupy the house.

The above conclusion is further supported from the affidavits and the material filed before this Court. A perusal of the rejoinder-affidavit of the Petitioner shows that during the pendency of the allotment proceedings the Petitioner''s wife and his eldest son came back from Calcutta and continued to reside in the house and G.K. Mukerji ceased to occupy the house and he shifted to his own residence. Further G.K. Mukerji has himself filed an affidavit saying that the Petitioner had got most of his valuables in two rooms and while in the other rooms his furniture and other things remained. He had made available to him only one room for the exclusive use of his wife and himself. The arrangement was purely voluntary and on friendly basis and there was no talk or even a slightest suggestion about payment of rent to the Petitioner or to his landlord. He has further asserted that the Petitioner''s family returned on 2nd November 1974, after temporary absence and he vacated the house and went to reside at Naini along with his wife. The Petitioner has asserted in paragraph 26 of his rejoinder affidavit that even though he has taken two years'' leave and has joind Jadavpur University, he has been performing various duties at Allahabad University. He has taken classes on special request at Allahabad, he has attended Academic Council and other bodies of the Allahabad University in the months of July, August, September, November, December, 1974 and January and February, 1975, and on all these occasions when he came to attend the meetings he stayed in the accommodation in his own right as tenant. He has further stated that on 2nd November, 1974, his wife and elder son came to Allahabad and ever since then they have been residing in the house. Having regard to all these circumstances it is clear that the Petitioner never intended to vacate the house or to allow G.K. Mukerji to occupy the house in question as a sub-tenant. The facts stated above clearly show that during his temporary absence the Petitioner had allowed G.K. Mukerji to reside in a room of his house to keep a watch. In view of these facts the findings recorded by the District Judge and the Rent Control and Eviction Officer are not sustainable in law. Further the deeming provisions contained in Clauses (a) and (b) of Section 12(1) were not attracted.

As discussed above, there was no vacancy in the house in question. Further the deeming provisions as contemplated by Section 12(1) were not attracted. Therefore under the law no valid allotment order could be issued in favour of Respondent No. 3 in respect of the house in question.

In the result. I allow the petition and quash the impugned orders 21-5-1974, 2-11-1974 and 10-12-1974. The Petitioner is entitled to his costs.