Rashik Kumar vs Virendra Kumar and Another

Prakash Krishna, J

The principal point which arises for consideration in the present revision is whether a tenant is liable for eviction on the ground of subletting the premises, when the subletting took place before the commencement of the State Rent Control Legislation and subletting is prohibited under the said Act.

The relevant facts are few. They are not either in dispute or could not be disputed in the present revision filed u/s 25 of the Provincial Small Cause Courts Act.

SCC Suit No. 7 of 1995 was instituted by three Plaintiffs namely Virendra Kumar, Hirendra Kumar and Nav Ratan Kumar against Rashik Kumar and Pramod Kumar, the Defendants, for ejectment etc. in respect of a shop with open piece of land in front thereof on various grounds such as default in payment of rent, material alterations carried on in the tenanted premises without permission of the landlords and that the tenanted accommodation was sublet by the original tenant Rashik Kumar to Pramod Kumar, Defendant No. 2 without leave of the landlord. It was pleaded that the building in question is a "new construction" within the meaning of the Explanation to Section 2(2) of the U.P. Urban Buildings (Regulation of letting, rent and eviction) Act, 1972 (hereinafter referred to as the Act).

The suit was contested on the pleas inter alia that the provisions of the U.P. Act No. 13 of 1972 are applicable, the tenant has not carried on any material alteration in the premises in question, that there is no arrears of rent and the Defendant tenant has not sublet the property in question to Defendant No. 2.

The parties led evidence oral and documentary in support of their respective cases. Points for determination were framed by the trial Court and the suit for recovery of arrears of rent, ejectment and damages etc. has been decreed by the judgment and decree dated 25th of May, 2000. The trial Court has found that the provisions of the U.P. Act No. 13 of 1972 are applicable to the building in question, the rate of rent is Rs. 500/-per month, the Defendant is liable to pay house tax and water tax amounting to Rs. 360/-per annum. The property was let out to the Defendant No. 1 who has sublet it to the Defendant No. 2. On the question of material alteration, it has been found that the Plaintiff has failed to prove the plaint allegations in this regard and the issue was decided in favour of the Defendant. No illegality was found in the notice determining the tenancy or in its service. On the question of default, the Defendant tenant was found defaulter. The damages has been awarded at the rate of Rs. 1,000/-per month.

Shri Manoj Misra, learned Counsel for the applicant, in support of the revision has confined his arguments only on the following two points:

Firstly, the finding on the question of default is perverse because the Court below has failed to consider the case and evidence led by the Defendant. Submission is that on proper appreciation of the material on record, the finding on the question of default is unsustainable.

Secondly, subtenancy took place in the year 1979 when the provisions of the

U.P. Act No. 13 of 1972 were not applicable to the building in question being a "new building" which was constructed in that very year. When the subtenancy took place it was not prohibited under any law. The Transfer of Property Act governing the relations of the parties also does not prohibit subletting. The subletting which was valid initially could not be a ground for eviction of a tenant on account of application of Act No. 13 of 1972 to the building subsequently, after the expiry of the exemption period, submits the learned Counsel.

Reliance was placed on certain decisions which will be considered at the appropriate stage.

In contra, Sri Manoj Gupta, learned Counsel for the Plaintiff landlord-opp. party submits that the tenant is liable for eviction on the ground of subletting as provided u/s 20(2)(e) of the Act. He submits that if the plea of subletting is going to be sustained, he will not address the Court on the question of default and the finding recorded therein, may be varied by this Court. The landlords are interested to get their property back and they are prepared to forego their claim for recovery of arrears of rent for the period of default. By now 15 years have gone. During this period prices of the immovable properties have sky-rocketed and if the matter is remanded on the question of default, it will further delay the matter.

Considered the respective submissions of the learned Counsel for the parties.

The main point involved in the present revision is whether the tenant is liable for eviction on the ground of subletting or not which took before enforcement of the Act No. 13 of 1972 to the building in question.

There appears to be divergent opinions on the above issue. One line of the decisions is that for such subletting the tenant is liable for eviction. The reason appears to be that when the subletting took place, it was not prohibited.

The other line of the decisions is that the legislatures have used the words "has sublet" in Section 20(2)(e) of the Act. The word ''sublet'' contemplates a completed event connected in some way with the present time.

Before proceeding further it is desirable to reproduce the relevant statutory provisions of the Act No. 13 of 1972. Section 20 of the Act enumerates the grounds on which a landlord can bring a suit for eviction of a tenant from a building after determination of his tenancy. Here, we are concerned with Clause (e) which reads as follows:

xx xx xx xx xx xx xx xx

(e) that the tenant has sub-let,in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;

xx xx xx xx xx xx xx xx

The other relevant statutory provision is Section 25 which reads as follows:

Prohibition of sub-letting. -(1) No tenant shall sub-let the whole of the building under his tenancy.

The tenant may with the permission in writing ofthe landlord and of the District Magistrate, sub-let a part of the building.

Explanation:For the purposes of this Section -

(i) Where the tenant ceases, within the meaning of Clause (b) of Sub-section (1) or Sub-section (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sub-let that building or part;

(ii) lodging a person in a hotel or a lodging house shall not amount to sub-letting.

Sri Mishra placed strong reliance on M/s. Khanna Brothers, Kanpur and Ors. v. Smt. Sita Devi and others 1985(2) ARC 415 . In this case, the High Court considered Sections 20(2)(e) and Section 25 and held that Sub-section (1) of Section 25 is prospective in nature. It prohibits a tenant for subletting whole of the building. There is nothing either in Sub-section (1) or Sub-section (2) of Section 25 which may indicate that these provisions were to apply to subletting which has taken place before. The language of said Section is clear. It does not expressly attempt to deal with the parties. On further interpretation of Explanation to Section 25 it was held that use of word "ceases" is in consequence with settled interpretation that use of present tense indicates that the language intended the provisions to apply prospectively. There is nothing in the Explanation which by itself may indicate that it applies to such occupation before the commencement of this Act. No assistance can be derived from expression "deemed to have sublet". This deeming is in relation to subletting and not to past transaction. It has relied upon a Full Bench decision of Five Judges in Smt. Ram Mani Devi Vs. Rent Control and Eviction Officer and Others, In opposition, reliance was placed by the landlord on Smt. Kesar Bai v. District Judge, Mathura 1980 ARC 223, a Full Bench decision wherein it was held that Section 12(1)(b) of the Act was retrospective. The Court also relied upon another decision of Smt. Gulab Devi and others Vs.VI Ith Addl. District Judge, Kanpur 1981 ARC 602.

Before proceeding further, it is useful to notice the controversy which was up for consideration in the case of Smt. Ram Mani Devi (supra) relied upon by the Court and referred in the judgment of Khanna Brothers. The question referred to Full Bench as reframed therein reads as follows:

Whether a vacancy occurs under the provisions of U.P. (Temp.) Control of Rent and Eviction Act, 1947 in case a tenant sub-lets a portion of his accommodation?

The reference before the Full Bench was with regard to Section 7 of the old Act namely U.P. (Temp.) Control of Rent and Eviction Act, 1947. The amended Section 7 of the old Act prohibits a tenant to sublet the tenanted accommodation to anybody, except with the permission in writing of the landlord and of the District Magistrate previously obtained. A question arose in the case of subletting in contravention of Section 7 (3) of the old Act and the action is open to be taken by the District Magistrate in such circumstances. It has been answered that subletting of a portion creates vacancy in respect of that portion. The power of control u/s 7 (2) arises but such power can be exercised by the District Magistrate only by granting or refusing permission to the tenant to sublet, as provided by Sub-section (3). Obviously, the aforesaid Full Bench was not called upon to address the issue presently involved herein. The decision rendered by the Full Bench has been given in a different fact situation. The question was with regard to the exercise of power with regard to the vacancy which occurred on account of illegal subletting by the tenant. The right of landlord to seek eviction on the ground of such illegal letting was not in issue even remotely therein. This being so, the decision of the Full Bench should be understood in the context in which it was given. Even otherwise also, the said decision was given with reference to the provisions of the old Act.

Mangi Lal v. Additional District Judge, and others 1980 ARC 55 (FB) is another decision by Full Bench consisting of five Hon''ble Judges wherein the phrase "has built" as occurred in Section 12(3) of the Act, came up for consideration.

The other case relied upon is Daya Ram v. Ishrat Hussain 2004 (2) ARC 455 which supports the view point of the tenant. It is a case of creation of partnership before the application of the said Act to the property in dispute. There is not much discussion it has been held that under Transfer of Property Act, creation of partnership is not prohibited, therefore, the said partnership which took place earlier, before the application of the Act to the building will not give a right to the landlord to seek eviction.

A different view has been taken in Smt. Harish Kumari v. Ixth Additional District Judge, Lucknow and others 1993 (2) ARC 79 . It has been held that in order to attract Clause (e) of Section 20(2) it is not necessary that subletting should have been done after commencement of the Act. Subletting done prior to the enforcement of the Act is also covered by Clause (e). of course, the latter subletting should be in contravention of the provisions of old Act. There is a great amount of discussion in the judgment. The decision given in the case of M/s. Khanna Brothers (supra) was also considered, distinguished and not followed. The conclusion of the Court is principally based upon the words "has sublet" used in Clause (e) which has been interpreted by the Supreme Court in the case of Goppulal Vs. Thakurji Shriji Shriji Dwarakadheeshji and Another, with reference to a Rent Control Law enacted by the Rajasthan Legislature and a Full Bench decision of this Court in Smt. Keshar Bai v. District Judge, Mathura and others 1980 (6) ALR 165. It may be noticed that the decision of Full Bench in the case of Smt. Keshar Bai is also based on the aforesaid judgment of Apex Court in the case of Gappulal (supra). The relevant extract from the judgment of the Apex Court which has been reproduced therein, is reproduced below:

The question whether a sub-letting before the coming into force of the Act is within the purview of Clause (e) of Section 13(1) depends upon the construction of that clause. The relevant words are "has sub-let". The present perfect tense contemplates a completed event connected in some way with present time. The words take within their sweep any sub-letting which was made in the past and has continued up to the present time. It does not matter that the sub-letting was either before or after the Act came into force. All such sub-letting are within the purview of Clause (e).

(Emphasis supplied)

It has been held in the case of Keshar Bai that the provisions of the Rent Control Act as enacted by Rajasthan Legislature are in para materia with the said Act. The paragraph -25 of the judgment is reproduced below:

The law laid down by the Supreme Court in the aforesaid case, although is on different Act, but since the two Acts are in pari materia, the ratio of the aforesaid decision of the Supreme Court can be usefully applied for interpreting Section 12(1)(b) of the present Act. Just as the Rajasthan Premises Control of Rent and Eviction Act dealt with the grounds of eviction of a tenant, Section 12 of the present Act also makes provision for the said purpose. The two Acts are on the same subject.

It may be noted that Full Bench decision in the case of Smt. Keshar Bai (supra) which has been followed in Smt. Harish Kumari v. Ixth Additional District Judge, Lucknow and othersis based on the decision of the Apex Court in Gappulal (supra). The relevant portion from the judgment of the Gappulal (supra) has already been reproduced above.

It is not difficult to find out that the aforesaid decision of the Apex Court in the case of Gappulal (supra) is being constantly followed by it in subsequent decision.

More or less, a similar controversy arose in the Gurcharan Singh and Others Vs. Shri V.K. Kaushal, wherein the Supreme Court after noticing its judgment in the case of Gappulal with reference to State Rent Act of Punjab held that the words "has sublet" refer to a tenant who has entered into a transaction of sub-letting. and the transaction of subletting is referable to a single point of time. It is the moment when the act effecting the subletting is completed. That transaction is located at a fixed point. What happens then is that a flowing stream of rights and obligations issues from the subletting. Those rights continue as long as the sublease subsists, but they have their source in the definitive transaction of subletting located in a single fixed point of time. The words "has sublet" imply that the subletting must subsist on the date when the Act comes into force.

In Ganpat Ram Sharma and Others Vs. Gayatri Devi, the word "has" as used in Delhi Rent Control Act with reference to provision relating to eviction of a tenant where the tenant "has built" or "acquired vacant possession" of or "has been allotted" a residence, came up for consideration. It has been held that the word " has" contains in itself the meaning of presently possessing something. The ordinary English Dictionaries while giving the meaning of word "has" refer to to the word "have", which in turn means ''to hold'', ''to possess''. Para 16 from the report is reproduced below:

The words ''has built'' or ''has acquired'' or ''has been allotted'' clearly mean that the tenant has already built, acquired or been allotted the residence to which he can move and that on the date of the application for his eviction his right to reside therein exists. It was therefore held that the words as they stood associated with each other in Clause (h) lead to the only conclusion that as on the date of the application the tenant must be possessing a clear right to reside in some other premises than the tenancy premises as a matter of his own rightful choice either because he may have built such premises or acquired vacant possession thereof or the same may have been allotted to him.

It has been held that "therefore, the words "has sublet" uncalled for by any reference to the commencement of the Act, referred to a transaction of subletting entered into before or after the commencement of the Act, and in the case where subletting has been affected before the commencement of the Act the sublease must subsist and the right under it continues to flow, on the date of commencement of the Act." On the fact that it was specifically provided in Section 13(2)(ii)(a) of the Act that it''s scope is confined to subleases affected after the commencement of the Act, that is to say the transaction of subletting affected after the date when the Act came into force. For that reason a subletting affected before the commencement of the Act was not treated as subletting for the purposes of eviction under the aforesaid provision. It follows that if there is no restriction, the words "has sublet" will cover such subleases executed prior to the commencement of the Act.

In M/s. Babu Ram Gopal and others Vs. Mathra Dass, a lis under East Punjab Urban Rent Restriction Act, the Apex Court again placed reliance upon its earlier judgment in Gappu Lal (supra) with a view to find out the meaning of phrase " has ceased to occupy" and held that the use of present perfect tense contemplates a completed event connected in some way with the present time.

In 1995 Supp (4) SCC 47 titled as Krishan Lal v. Vidya Wati and Ors. the Apex Court has noticed its earlier decisions in the case of Gappu Lal (supra) and Gurcharan Singh and others and has held as follows:

The short question that arises for our consideration is whether there was a sub-letting prior to 1949, i.e., prior to the coming into force of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as ''the Order'') and whether the tenant was liable to be evicted under Clause 13(3) (iii) of the said Order.

Our answer should be in the affirmative. This question directly came up for consideration in Goppulal Vs. Thakurji Shriji Shriji Dwarakadheeshji and Another, . Though that case related to the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the language employed is identical. However, what is argued before us is that the decision in Goppulal v. Dwarakadheeshji is distinguishable. In fact, such a distinction was made in Gurcharan Singh and Others Vs. Shri V.K. Kaushal, dealt with a situation where the language was "after the commencement of this Act, without the written consent of the landlord ? (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof". Thereafter, there is an express provision '' after the commencement of the Act'' and that makes a world of difference.

The sum and substance of the ratio of the decisions referred to above is that the Apex Court has in clear terms laid down that the words "has sublet" used in a State Rent Control Legislation will also cover such subletting which took place even prior to the commencement of such Act unless there are specific words in the Statute making the provision prohibiting the subletting operative from the date of commencement of such Act.

The same conclusion can be arrived at from a different angle, noticed by the High Court in the case of Smt. Harish Kumari v. Ixth Additional District Judge, Lucknow and Ors. (supra) (para 18 & 19). Paragraph-19 of the report is reproduced below:

There is another way of looking at the matter. All buildings which have completed the period of 10 years from the date of construction form one class. If the Petitioner''s contention is accepted, a subletting done on or after 15th July, 1972 in respect of such a building it would be covered by Section 20(2)(e) but if it is done on 14th July, 1972 or earlier, it would not be covered. There would be no reasonable basis for this classification. Therefore, if the Petitioner''s contention is accepted, Section 20(2)(e) has the prospect of becoming constitutionally invalid under Article 14 of the Constitution. Whenever two interpretations of an enactment are possible, one ensuring its validity and the other leading to its invalidity, the former is to be preferred. For this reason also it will have to be held that Section 20(2)(e) covers also a subletting created before the enforcement of the new Act in respect of a building which was not covered by the old Act but was covered by the new Act.

The Act has been enacted with an object to protect the interest of general public, for regulation of letting and rent of, and eviction of tenants, from certain classes of building situated in urban areas. The aim and object of the Act is to protect the personal occupation of the tenant. The protection is not extended to a tenant who has abandoned the occupation of premises as past possession to another, even though by way of subtenancy. The protection against eviction is not available for permitting a tenant to make a profit out of his tenancy rights by subletting the premises.

It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in statute has to be gathered from the text, the nature of subject matter and the purpose and intention of the statute. It is cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding the conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduce one of the provisions to a "dead letter" is not harmonious construction. The paramount object in statutory interpretation is to discover what the legislation intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. Statutes should be construed, not as theorems of Euclid, but with some imagination of the purpose which lie behind them.

In E. Palanisamy Vs. Palanisamy (D) by Lrs. and Others, it has been held that the rent legislation is normally intended for the benefit of the tenants. At the same time, the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters.

In Raval and Co. Vs. K.G. Ramachandran and Others, the Supreme Court at page 823 thereof has held that the Rent Control Legislation has a scheme of its own and it is intended to provide a complete code in respect of both contractual tenancies as well as what are popularly called statutory tenancies. In other words, the special procedure provided by the Act displaces the requirements of the procedure for eviction under the Transfer of Property Act and by an ordinary civil suit. The right of the landlord to evict the tenant is restricted under such an Act. Correspondingly, it also puts the tenant under certain obligations. and one of such obligations is that the tenant shall not part with the possession otherwise he will be liable for eviction, while restricting the unfettered right of a landlord to evict a monthly tenant by giving a simple notice. Right to sublet as it exists under the T.P. Act comes to an end on the commencement of the State Rent Act, prohibiting the subletting or parting with the possession by the tenant.

The word ''has'' is used in present tense, the fact remains that on the date when the suit was filed, the subtenancy was in existence which is prohibited under the Act.

Taking into consideration the aim and object of the Act as also that the right of the landlord is restricted to evict a tenant, the subletting which took place even prior to the enforcement of the Act will be covered by Clause (e) of Section 20 of the Act. The above view is in consonance of various decisions of the Apex Court referred to above as well as in the line of Full Bench decision of Keshar Bai (supra).

The last decision cited by the learned Counsel for the applicant may now be noticed. Reference was made to Mangi Lal v. Additional District Judge and others 1980 ARC 55, a judgment of five Judges. The decision was rendered with reference to Section 21(1) Explanation-I which is in regard to the release of a building. The said decision has been distinguished by the subsequent Full Bench in Keshar Bai (supra) on the ground that the object of Section 20 is different than the one behind Section 12. Section 20(2)(e) confers power on landlord to bring a suit for ejectment against a tenant from whole of the premises if a tenant is found to sublet whole or any part of the building. In the case of Section 12(1)(b) the subtenant will be liable to be dispossessed, but, of course, only from that part of the building or whole of it which had been let out to him.

The controversy stands concluded squarely by the Full Bench judgment of this Court in the case of Keshar Bai (supra) and it is not necessary to discuss the other judgments of single Judges.

It was rightly reminded by Shri Manoj Mishra, Advocate, for the tenant that in view of conflicting judgments, the matter should be referred for an authoritative pronouncement to a Division Bench. But after considering the matter, it was not found necessary in view of various pronouncements of the Apex Court referred to above and also in view of the fact that this Court in subsequent decision referred to above has distinguished and not followed the judgment given in the case of Khanna Brothers (supra). Attention of the learned Judge while deciding the case of Khanna Brothers (supra), was not drawn to other pronouncements of the Apex Court.

Viewed as above, the view taken by the Court below that the tenant applicant is liable for eviction on the ground of subletting is perfectly justified and there is no illegality therein.

In view of the above discussion and the stand taken by the learned Counsel for the landlord, the issue relating to recovery of arrears of rent for the period 10.4.1991 to 19.11.1992 is decided by holding that the trial Court was not justified in decreeing the suit so far as it relates to arrears of rent is concerned. To this extent the finding recorded by the Court below is set aside. In other respects the judgment and decree of the trial Court is confirmed.

In the result, the decree of eviction for recovery of house tax and water tax and damages at the rate of Rs. 1,000/-per month is confirmed and the revision is dismissed.

The finding on the question of arrears of rent as recorded under issue No. 4 is hereby set aside and the said issue is decided against the Plaintiffs.

In view of the above, the revision succeeds and is allowed in part as indicated above. No order as to costs.