Khubi Singh Yadav and Others vs District Judge and Others

Satish Chandra, C.J.—A learned single Judge of this Court felt that there was conflict of opinion in this Court on the retrospective operation of Sub-section (3-A) added to Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction ) Act, 1972 by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act No. 5 of 1976. He accordingly referred this case to a Full Bench.

The first Petitioner was a Company Commander in the Provincial Armed Constabulary. He was posted at Allahabad. On February 28, 1973, the house in dispute was allotted to him. On April 11, 1973, he was by an order transferred from Allahabad to Moradabad. Later on he was transferred from Moradabad to Lucknow. Then again he was transferred to Kanpur. At present he is posted at Kanpur. Inspite of these transfers, the first Petitioner did not vacate the house in dispute at Allahabad. His wife (Petitioner No. 2) and his brother (Petitioner No. 3) along with his sons continued to reside in the house at Allahabad.

In May, 1973, a person other than the landlord made an application for allotment of this house, but the same was dismissed in July, 1973 on the finding that there has been no vacancy. Again in January. 1974, one Dinesh Singh moved an application which was dismissed in August, 1974 on the finding that the transfer of the first Petitioner did not cause vacancy in relation to the house.

On April 17, 1978, one Sri J.P. Singh moved a similar application. The Petitioners appeared to oppose it. By an order of October 21, 1978, the Prescribed Authority held that since the Petitioner was transferred he fell within the purview of Sub-section (3-A) of Section 12 of the Act and so on June 30, 1973 following his transfer, the house in dispute will be deemed to be vacant. The Prescribed Authority followed up this order by allotting the house in dispute to Sri M.M. Ghosh, Respondent No. 3, on January 12, 1979.

The Petitioners went up in revision. The learned District Judge dismissed the same in limine. Aggrieved, the Petitioners came to this Court under Article 226 of the Constitution,

The sole question that arises for consideration in this writ petition is whether Sub-section (3-A) of Section 12 or the Act applies to an event of transfer which took place prior to the coming into force of that provision,

Sub-section (3-A) was added to the parent Act by the Amending Act No. 5 of 1976 which came in force on July 5, 1976. There is nothing in the transitory provision or in any other part of the Amending Act to expressly indicate any retrospective operation to this new addition, namely, Sub-section (3-A) to Section 12, though at several other places the Legislature has expressly made the amendments ret respective, for instance, amendments to Clauses (d), (e), (r), (rr) and (s) of Sub-section (2) of Section 43 of the Act have been made by stating ''and be deemed always to have been substituted/Similarly, Section 26 of the Amending Act of 1976 has added a proviso to Section 43(2) in the following words: ''''the following proviso shall be inserted and will be deemed always to have been inserted."

Section 12 is in Chapter III of the Act which deals with regulation of letting. Section 12 is headed as ''deemed vacancy of building in certain cases.'' Deemed vacancy means ''deemed to have ceased to occupy the building''. Sub-section (3-A) applies where:

(a) a person is a tenant of a residential building:

(b) he holds a transferable post under the Government or local authority or a public sector corporation.

(c) he has been transferred to some other city, municipality, notified area or town area:

then such tenant is deemed to cease to occupy such building with effect from thirtieth day of June following such transfer or from the date of allotment to him of any ''residential accommodation as mentioned, in the other city etc., whichever is later.

This provision imposes a liability of eviction on a tenant. Sub-section (4) of Section 12 makes the accommodation covered by, inter alia, Sub-section (3-A) as deemed to be vacant. Section 16(1) authorizes the District Magistrate to allot or release vacant buildings. On such an order being made, the tenant becomes liable to eviction.

Since Sub-section (3-A) of Section 12 creates a liability on the property rights of a tenant, it should normally be construed prospectively. In other words, it would apply where the offensive event, namely, the event of transfer has taken place after the coming into force of this provision on July 5, 1976.

This provision has no legislative history. Previous to the introduction of Sub-section (3-A), the mere transfer did not entail any liability to eviction.

Under this very Act, Clause (c) of Section 12(1) created a vacancy in the case of a residential building if the tenant as well as members of his family have taken up residence elsewhere. In other words, allotment or release can only be when the tenant as well as members of his family have shifted the residence somewhere else.

Sub-section (3-A), on the other hand, makes the residential accommodation vacant if the employee has been transferred to some other city, etc., notwithstanding that his family members may be continuing to reside in the accommodation. Since the case of shifting of residence by the tenant and his family members was already covered by Clause (c) and since Clause (c) did not cater to the situation where the tenant may have shifted his residence, but his family members continue to reside in the same house, the Legislature enacted Section 3A to cover that situation.

It is apparent that under Clause (e) of Section 12(1) vacancy did not arise merely because the tenant has been'' transferred, which implied shifting of his residence, provided his family members continue to reside in the old house. That position obtained even during the operation of the Rent Control Act of 1947 which remained in force till July 14, 1972 when the present Act came into force.

Section 14 of the Act is also material. It provides for regularisation of occupation of existing tenants or licensees. A tenant or licensee who is in occupation of a building with the consent of the landlord immediately before the commencement of Amendment Act of 1976, i.e., immediately before July 5, 1976, is to be deemed an authorized licensee or tenant of a building if no proceeding of eviction is pending against him. Take the case of an officer who has been transferred. His wife and children continue to reside in the house. Landlord consents to their being tenants or licensees of the house. In that event, the wife and children will be deemed to be authorized licensees or tenants.

If to such a situation occurring due to transfer prior to 5-7-1970 Section 3A were to apply, the position will be that on the one hand u/s 14 the wife and the children will be deemed to be authorized tenants while on the other the house will be deemed vacant rendering it liable to allotment to some one else. This will be an anomalous situation. The Legislature should not be imputed an intention where by anomalies complicate matters. We are hence not inclined to hold that Sub-section (3-A) has any retrospective operation.

Learned Counsel for the Respondents invited our attention to the decision of the Supreme Court in Goppulal Vs. Thakurji Shriji Shriji Dwarakadheeshji and Another, . In that decision, the Supreme Court considered the phrase ''has sublet'' occurring in Clause (e) of Section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act. The tenant was liable to be evicted if he has sublet. The Supreme Court held:

The relevant words are ''has sublet''. The present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any subletting which has made in the part and has continued upto the present time. It does not matter that the subletting was either before or after the Act came into force. All such sub settings are within the purview of Clause (e)

This decision came up for consideration before a five Judge Full Bench of this Court in Sri Mangi Lal v. Fifth Addl. Distt. & Sessions Judge 1980 AWC 33. Dealing with this case, the Full Bench observed:

In Gappulal''s case, the Supreme Court observed that the relevant words are ''has sublet''. The present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any subletting which was made in the past and has continued upto the present time. It does not matter that the subletting was either before or after the Act came into force. All such sub-lettings are within the purview of Clause (e). The Supreme Court went on to draw heavily upon Sections 26 and 27 of the Act on the construction of the phrase ''has sublet'' occurring in Section 13(1). After reading those provisions, it held that Sections 26 and 11 clearly contemplate that the grounds of eviction mentioned in Section 13 may have arisen before the Act came into force.

The verb ''has'' in the phrase ''has sublet'' was not given retrospectively merely because of the rules of grammar but because the legislative intent as disclosed in the scheme of the Act required complete retrospectively.

As already seen, the scheme of our Act is different.

The Supreme Court decision in Gappulal''s case came up for consideration before it in Gajanan Dattatraya Vs. Sherbanu Hosang Patel and Others, . After commenting on Gappulal''s case, the court came to the conclusion that the phrase ''has sublet'' does not mean that the subletting must continue till the date of the suit. If it was in existence on the date of the notice to quit it was sufficient. Extinguishment of the sub-tenancy after the service of notice but before the filing of the suit did not matter.

In State of Madhya Pradesh v. Peer Mohd. AIR 1963 SC 2156, the word ''has'' in the phrase ''who has, after the first day of March, 1947, migrated from the territory of India to the territory of Pakistan'' occurring in Article 7 of the Constitution was construed in the light of the scheme of the seven Articles in Part II of the Constitution to mean ''migrated before, and not after, the commencement of the Constitution.

These decisions indicate that the present perfect tense ''has'' does not have a rigid or fixed connotation. It takes its true meaning from the context of the scheme of the Act.

The resulting position is that by the use of the word ''has'', the legislature, intends to indicate a complete event connected in some way with the present time. [The word ''has'' by itself does not necessarily denote the extent of the retrospectively. That will depend upon the legislative intent as indicated by the material and relevant provisions of the Act. As shown above, the use of the verb ''has'' in Section 20 as well as Section 21 was not intended to include the offensive activity done prior to the coming into force of the Act of 1972.

It is thus apparent that the word ''has'' does not have a rigid or fixed connotation. It takes its true meaning from the context and the scheme of the Act.

In the present case, the phrase used is ''has been transferred.'' The legislative history shows that such an event did not create vacancy, according to the law in force prior to the commencement of the Amending Act of 1976. This Amending Act does not indicate that any retrospective operation was intended to be given to this provision. The scheme of the Act including Section 14 shows a contrary intention. We are hence satisfied that (sub) Section (3-A) will apply where the tenant has been transferred after July 5, 1976.

The view that we have taken has been expressed in several decisions of this Court. See Gyan Singh v. District Supply Officer, Aligarh 1979 U.P. RCC 264; Smt. Madhuri Asthana v. S.A. Khan 1979 U.P. RCC 269; Messrs Allied Products Distributors v. Arun Kumar 1979 AWC 251 and Kashi Prasad Misra v. R.C. & E. Order 1979 AWC 599.

Our attention was invited to the decisions in Shambhu Nath Tandon v. IX Addl. D, J. Allahabad 1976 AWC 801; Baikunthnath Shama v. District Judge 1977 UPRCC 457 and Ballabh Doss Daga v. III Additional District Judge 1978 UP RCC 565. These are all cases of subletting by the tenant. They are distinguishable on facts. In the case of subletting, different considerations are likely to arise.

The decision in Pooran Chand v. District Judge 1978 AWC 742 also, the question of applicability of Sub-section (3-A) did not arise. The case is distinguishable.

In Sub-section (3-A) of Section 12, vacancy arises on June 30 following the order of transfer or on the date of allotment of a house, whichever is later. It may be suggested that the offensive event is not the order of transfer, but the occurrence of the following June 30 or the date of allotment of a house. Even if an order of transfer has been passed prior to July 5, 1976 (when this provision commenced operation), but if June 30 following the order of transfer took place after July 5, 1976 or where the date of allotment'' of a house occurred subsequently, Sub-section (3-A) will apply. In the present case the order of transfer was passed in 1973. June 30 following that order took place in 1974 before the commencement of the Amending Act. There is no evidence that any order of allotment of house was passed in favour of the Petitioner in the place to which he was transferred. On facts, therefore, this precise question does not arise and we express no opinion on it.

In the result, the writ petition succeeds and is allowed. The impugned orders are set aside and the proceedings for declaration of vacancy as well as the order of allotment in favour of Respondent No. 3 are quashed. The Petitioner will be entitled to costs.