Smt. Keshar Bai and Another vs The District Judge and Others

K.C. Agarwal, J.—This Full Bench has been constituted to answer the following question which had been referred to by a learned single Judge:

Whether Clauses (a), (b) of Sub-section (1) and Sub-section (2) of Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (U.P. Act No. 13 of 1972) are retrospective or not?

For appreciating the arguments, a brief reference to the relevant facts is necessary. Dispute involved in the present case is with respect to two shops Nos. 523/2 and 523/3 Mathura. These shops belonged to Surajbhan and Radha Kishan who transferred shop No. 523/2 to Ashok Kumar and shop No. 523/3 to Smt'' Omwati Agarwal, by sale deed dated August 14, 1975. There was no dispute that formerly Gobardhan Das and his son Phool Chand were the tenants of these shops and were carrying on business in the name of M/s. Gobardhan Das Phool Chand. In 1943, Phool Chand died while Gobardhan Das died in 1954. After the death of Gobardhan Das in 1954, Ram Dayal continued the business in these shops. In April, 1963, Ram Dayal entered into partnership with one Laxman Das. Both, Ram Dayal and Laxman Das, continued business in these shops in the name of M/s. Ram Dayal Laxman Das, till November 9, 1971 when Ram Dayal and Kesarbai, the widow of Phool Chand, started a new business in these shops, in partnership with one Davendra Prasad Garg. The rent, however, continued to be paid to the landlord in the name of M/s. Gobardhan Das Phool Chand. Ultimately, the landlord sold the shops to Ashok Kumar and Smt. Omwati Agarwal, Respondents 3 and 4 (hereinafter referred to as Respondents 3 and 4).

On Sept. 20, 1976, Respondents 3 and 4 filed two separate applications under Sections 12/16 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, (13 of 1972) for brevity, (hereinafter referred to as Act No. 13 of 1972) for declaring that these shops were vacant, and for releasing them in their favour. Respondents 3 and 4 alleged that on the death of Phool Chand, Smt. Kesarbai had become a tenant, being the widow of Phool Chand, but since she had (i) removed the entire effects from the shop (ii) it will be allowed to be occupied by the persons who were not the members of her family and (iii) that she had admitted persons who were not members of her family as partners Smt. Kesarbai, Petitioner No. 1, would be deemed to have ceased to occupy the building. On these facts, the Respondents 3 and 4 alleged that the Petitioner tenant would cease to occupy the building within the meaning of Sub-section (1) and Sub-section (2) of Section 12 and, therefore, building shall be deemed to be vacant under Sub-section (2) of Section 12 of the Act.

The Prescribed Authority allowed the application and the revisions filed before the learned District Judge were also rejected. Against these orders, the present writ petition was filed.

The Petitioners contended that Clauses (a) and (b) of Sub-section (1) of Section 12 and Sub-section (2) of the said section are not retrospective and the Petitioners could not be held to have ceased to occupy the shops under Sub-section (4) of Section 12 of the Act. The Petitioners'' contention further was that as the shops could not be deemed vacant under, Sub-section (4) of Section 12, the order releasing the shops in favour of Respondents 3 and 4 were void in law.

It is settled law that courts lean strongly against applying a new Act to a pending action unless the language of the statute compels it to do so. In interpreting the language of an Act, a court is required to give effect to the ordinary meaning of the words. It must also examine the extent of the words used in a provision of a statute with reference to the context. Inasmuch as a word is incapable of conveying the true and correct sense if read in isolation, the requirement of interpreting a provision with reference to the context permits a court to look into the legislative history of the Act which it is called upon to consider. Legislative history is part of the proper context of a statute.

In "Statutory Interpretation" Sir Rupert Cross (1976 Edition, page 129), the scope of Legislative history has been laid down. it says:

Legislative history" means (i) the legislative antecedents of the statutory provision under construction i.e., corresponding sections in previous enactments since repealed and reenacted with or without modification, (ii) Pre-Parliamentary material relating to the vision of statute in which it is contained, e.g., reports of committees and commissions reviewing the existing law and recommending changes, and (iii) Parliamentary materials, i.e., the successive drafts of a Bill, explanatory memoranda, proceedings in committees and Parliamentary debates. All three of these items have claimed to be regarded as part of the context of a statute but special rules, which are none too easy to state with confidence, apply to the use which a judge may make of them when giving reasons for his decision.

Reed Dickerson, in his books "The Interpretation and Application of Statutes" (1975 Edition, page 137) has dealt with the usefulness of making a reference to the legislative history. According to him, "Legislative History" in its broadest sense, includes all relevant events occurring before final enactment".

From what we have said adove, it follows that all aspects of internal legislative history of a statute can be considered in determining the meaning which want to be attributed to a provision. As already observed above, legislative history is part of the legislative context of the statute and as such is to be taken into account.

9 We may now make a brief reference to the relevant law. It is well known that after the Second World War to give protection to a tenant against unnecessary or unreasonable eviction and in the matter of being exploited for payment of rent all States in, India at one time or the other passed Building Rent and Control Acts. The language and the scheme of the Act varied and differed from State to State. In our State, the provisional legislature enacted the U.P. (Temporary) Control of Rent and Eviction Act, No. 3 of 1947 (hereinafter referred to as Act No. 3 of 1947) "to provide for the continuance during a limited period, all powers to control the letting of rent and residential and non-residential accommodation and to prevent the eviction of tenants therefrom." The letting is controlled through Section 7, 7-A, 7-D.7-E Since we are not concerned with the Question of control of rent, a reference to the provisions controlling rent need not be made. However we may refer to the provisions preventing or imposing bar from eviction of tenants, these provisions are Sections 3, 7- C, 14 and 15.

In the present case, we are concerned with the provisions relating to the control of letting. The most important provision dealing with this matter is. Section 7 of Act No. 3 of 1947. Sub-section (1) requires notice about an accommodation becoming vacant to be given to the Distt. Magistrate Sub-section (2) confers powers on Distt. Magistrate to require by a general or special order, a landlord to let or not to let to any person any accommodation which is vacant, or has fallen Vacant, or is about to fall vacant. Sub-section (3) of Section 7 imposes bar on the right of a tenant to sub-let an accommodation. It lays down:

No tenant shall sub-let any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate, previously obtained.

The object of Section 7 was to make available an accommodation to a needy person. For that purpose, the right of a landlord to let out an accommodation and that of a tenant to sub let it, had been curtailed. An agreement entered into between a landlord and tenant could not bind the District Magistrate. Inspite of an agreement; the District Magistrate was entitled under Act No. 3 of 1947 to treat the accommodation as vacant and to evict therefrom a tenant who was in occupation of the accommodation without an allotment order. This was his statutory obligation. Just as a District Magistrate could take action and evict a tenant on the ground of illegal letting, he could also take action against a tenant under Sub-section (3) of Section 7 of the said Act as against a sub-tenant, As noted above, Sub-section (3) of Section 7 prohibited a tenant from sub-letting accommodation.

In The Agricultural and Industrial Syndicate Ltd. Vs. State of U.P. and Others, the Supreme Court was called upon to consider the validity of an order made u/s 7-A of the Act. In that connection, the Supreme Court dealt with the scope of Section 7 of the said Act. Section 7(2) of U.P. Act No. 3 of 1947, it held that a lease made in violation of the provision of Sub-section (2) could be valid between the parties but it would not bind the authorities concerned. In a case of committing breach of Section 2 the Disst. Magistrate could have the power and jurisdiction to treat the accommodation as vacant and evict therefrom the tenant who was in occupation of the accommodation without an allotment order.

The next Question that arises for consideration is about the validity of creation of a sub-tenancy. Prior to the Amending Act of 1952, Section 7(2) spoke of letting as well as sub-letting. The Distt. Magistrate had power to pass an order requiring the tenant-in-chief to sub-let or not to sub-let, in the same manner as he could require the landlord to let or not to let to a tenant. By the Amending Act of 1952, a new provision as Sub-section (3) was added, as a result whereof sub-lettings were placed in a different category. It provided that sub-letting could be bone by a tenant only with the previous permission of the landlord as well as the District Magistrate.

Sub-section (3) of Section 7 has been a subject matter of interpretation in various cases. In H.S. Sethi v. R.C.E.O. 1966 AWR 274 and in another case Mohammad ishaq v. State Government 1966 AWR 520 a full bench held that where a tenant-in-chief had illegally sub-let either the whole or part of it, a vacancy arose in respect of whole tenanted accommodation.

Thus, the legal position was that as in the case of letting so also in the case of unauthorised sub-letting, a vacancy occurred and the District Magistrate became entitled to pass such order with regard to its allotment as he thought proper.

The U.P. (Temp.) Control of Rent and Eviction Act, 1947 was replaced by the U.P. Urban Buildings (Reg. of Letting, Rent and Eviction) Act (Act No. 13 of 1972). This Act came into force on 15th July, 1972. This Act had also been passed to provide for the regulation of letting, rent and eviction of the tenants from certain classes of building situated in urban areas. It has a more comprehensive scheme to achieve the object than which was incorporated in the U.P. (Temp.) Control of Rent and Eviction Act, 1947. Chapter III of the Act deals with "Regulation of Letting". Section 11 imposes prohibition of letting without an allotment order. Section 12 deals with deemed vacancy of building in certain cases. Section 13 is correlated with Section 11 in the sense that while the latter prohibits a landlord from letting out a building, the former prohibits its occupation by any person including a tenant. This had been done to remove the lacuna found in the old Act. As a result of these provisions, a person cannot occupy a building without on allotment order. Section 16 deals with allotment and release of vacant buildings.

After having made a brief reference to the relevant provisions, it appears appropriate to reproduce the provisions of Section 12 with which we are directly concerned in the present case.

Deemed vacancy of buildings 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.

(2) in the case of a non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.

(3)...(4)...

The question requires us to answer whether Clauses (a) and (b) of Section 12 and Sub-section (2) of Section 12 are retrospective.

We will first take up the case of Section 12(1)(b).

We had already referred to the prohibition imposed by the old Act to sub-letting. Two of the prohibitions which may be noticed are Section 20(e) and Section 25 of the new Act. Section 25 provides that no tenant shall sub-let the whole of the building under his tenancy. Sub-section (2), however, permits a tenant to sub-let a part of the building with the permission in writing of the landlord and of the Distt. Magistrate. The Explanation appended to Sub-sections (1) and (2) of Section 25 is very important. The same is being reproduced below:

Explanation--For the purpose 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.

Section 20 enumerates various grounds on which a suit for eviction can be brought by a landlord against his tenant. One of the grounds is contained in Clause (e) of Sub-section (2) of Section 20. It provides:

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.

The interpretation of Clause (b) of Sub-section (1) of Section 12 requires us to construe the expression "has sub-let". Reading the whole of the sentence, one will find that the sentence has been expressed in present perfect tense. The present prefect tense contemplates a completed event connected is some way with the present time.

Although the settled law now appears to be that the mere literal construction of the statute ought not to prevail if it is opposed to the intention of the legislature. It is apparent from the statute, by even applying the rule that in the first instance the grammatical sense of the words is to be adhered to, that Clause 12(1)(b) takes within its sweep any sub. letting which had taken place even prior to the commencement of |U.P. Act No. 13 of 1972. It provides that if any person has been allowed to occupy the building who is not a member of the family, such a person would be considered to be a subtenant. The tenant admitting or allowing a person to occupy the building or part thereof would be liable to be dispossessed from that building or part, as the case may be. Under Clause (b) of Sub-section (1) of Section 12, such a tenant would cease to occupy the building.

In Goppulal Vs. Thakurji Shriji Shriji Dwarakadheeshji and Another, , the Supreme Court was called upon to interpret Section 13(1) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. This section provided that no court would pass a decree for ejectment in favour of a landlord unless it is satisfied,

(a)...(b)...(c)...(d)...(e)that the tenant has assigned, sublet or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord.

Before the enforcement of the aforesaid Act of 1950, the Jaipur Rent Control Order, 1947 was in operation. This order came into force on October 15, 1947 and also provided that the subletting was a ground of ejectment under para 8(1)(b)(ii) of that order and the tenant''s liability for eviction on this ground continued after the promulgation of 1950 Act. The Supreme Court held that the sub-letting took place after 1945 and before 1947. In 1947, no Rent Control Legislation was in force. The Supreme Court decided the controversy on the footing that on the date of sub-letting, no prohibition was in force. It held:

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 the present time. The words take within their sweep any sub-letting which was made in the past and has continued upto the present time. It does not matter that the sub-letting was either before or after the Act came into force. All such sub-lettings are within the purview of Clause (e).

Interpreting Section 13(1)(e) and other provisions of the Act, the Supreme Court found that a tenant was liable to eviction on the grounds mentioned in Section 13 even if it arose before the Act came into force.

The law laid down by the Supreme Court in the aforesaid case, although is on a 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.

At this place we may also refer to the interpretation of the words "has sub-let" used in Section 20(e). The object of Section 20 is different than the one behind Section 12. Section 20(e) confers powers on a landlord to bring a suit for ejectment against a tenant from the whole of the premises if a tenant is found to have sub-let the whole or any part of the building. In such an event, the tenant would be liable to be ejected along with the sub-tenant inducted by him into possession. In the case of Section 12(1)(b), the sub-tenant will be liable to be dispossessed. But, of course, only from the part of the building or whole of it which had been let out to him. The ultimate result, viz., dispossession of the sub-tenant would be the same in both the cases. Interpreting the words "has sub-let" used in Clause (e) of Section 20, one of us, (Hon''ble Satish Chandra, J.)(as he then was) held in Syed Husain v. Smt. Hameeda Khatoon 1976 AWC 791, that the phrase "tenant has sub-let" signifies an actual event of sub-letting whether it be prior to or after the commencement of the 1972 Act. When these very words came up for consideration in Shambhu Nath Tandon v. Distt. Judge, Allahabad 1976 AWC 801, the same view was taken. In fact, this principle of law has been followed in a number of decisions without a single case taking a contrary view.

The settled rule of interpretation is that the words used in a statute should not be read in isolation, their colour and content are derived from their context, and, therefore, every word in a statute must be examined in its context. As legislative history is also an element or an aspect of context, the same is relevant for the purpose of interpreting Clause (b) of Sub-section (1) or Sub-section (2). The usefulness of the legislative history in interpreting a particular provision has already been emphasised by us. For the purpose of finding that the rule of construction permits us to look into the history and background of the provision, a reference may be made to the decision of the Supreme Court in udayan Chinubhai v. R.C. Bali AIR 1977 SC 2319. In this case, the Supreme Court observed:

We have seen that there may be scope for two views on the explanation and that would inevitably forbid a mere grammatical construction of the same on the touch stone of the plain text divorced from the object of the provision. The real intent will have to be discovered from the scheme of the provisions. It is by following that rule of construction we have gone into the history and background of the provision together with the recommendation of the Law Commission...

In Mangilal v. Additional District Judge 1980 AWC 33 a Full Bench of this Court had an occasion to consider Sections 12, 20 and 21 of U.P. Act No. 13 of 1972. Interpreting Section 20, it observed:

The word "has" has been used in the Act in many of the provisions e.g., Section 20 permits a suit for ejectment where the tenant ''has'' sub-let. There the word ''has'' may have a different significance, because of inter alia its legislative history.

The observations made by the Full Bench are applicable to the neither inter as well It is true that neither the word "has" nor "allowed" has any rigid or precise meaning. Its import varies according to circumstances or context in connection with which it is used. The context, if kept into account, would show that the legislature intended to cover not only a case of illegal sub-letting which had been done after the enforcement of the Act but even before. U.P. Act No. 3 of 1947 had been enacted to prevent the eviction of tenants from building. The Act, however, did not permit the tenant to sub-let a part or whole of the building. Unauthorised sub-letting had been provided for as a ground for ejectment of tenant and sub-tenant. Apart from ejectment, the building let out could also be declared to be vacant and proceeding for its allotment could be taken. This was the view taken by a Full Bench of our court in Mohammad Ishaq�s case (supra). This judgment was in existence when the new Act 13 of 1972 was enacted. Keeping the view of this Court into account, the legistature made a provision for deemed vacancy in case of unauthorized sub-Letting. What was ellegal under the old Act and could be a ground for eviction of a tentant, the same position was preserved and continued in the new Act. The construction placed on clause (b) of sub-section (1) of Section 12 that it takes in its sweep the cases of sub-letting done before the enforcement of the present Act, is in csonsonance with the view taken under the old Act. Section 12(1) is stricter is its effect and more effective. It does not leave any scope for argument permitting a tenant to say that there has been no letting out of the premise by him. Law requires a Court to hold sub-letting even if it is unreal or false. In a case where a person other than a family member is found in occupation of a building, a court will have to assume that possession of such a person is that of sub-tenant. Where, as here a legal fiction is created, no party will be entitled to controvert or disprove it

At this place a reference may be made to another Full Bench decision of this court is smt. Nanha and Another Vs. Deputy Director of Consolidation, Kanpur and Others, . This Full Bench decision did not approve the earlier decision of the Full Bench given in mohd. Ishaq�s case. It pointed out a number of difficulties in accepting the view taken in the above case and held that no vacancy was created when a tenant-in-chief sub-let the whole of the accommodation. Another difficulty pointed out was that the District Magistrate would have no power to make an allotment order in relation to a portion of an accommodation even where the tenant had illegally sub-let the portion. We are, however, not called upon to consider whether the view taken in Ram Mani Devis case lays down the law correctly and it requires reconsideration. We would content ourselves by observing that at the time when U.P. Act No. 13 of of 1972 was enacted, the authority given in Mohd. Ishaq�s case held the field, the legislature may be considered to have expected the view taken in that case.

Sri. R.N. Bhalla, counsel appearing for the tenant contended that since a cardinal principle is that every statue is prima facie prospective, the court should apply the same rule in the interpretation of Section 12(1)(b) as well. Counsel urged that giving of retrospective operation to the said provision would not only affect his vested rights but also impose new burdens and impair existing obligations.

The rule that a law does not operate retrospectively is one of presumption that a law does not take away or impair vested rights acquired under exiting laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect as observed by Lopes L.J. in re Pulborough Parish School Board Election, Bourke v. (II 894) 1 KB 725. Thus, the retrospectively or otherwise of a statute has to e tested on the litmus of the factors mentioned above.

There is another rule which is equally firmly established. The rule against retrospectively is not an inflexible rule of law "but is one to be applied always in the light of the language and the subject-matter with which the statute is dealing, "Per Seaman, J. Carson v. Carson (1964) 1 WLR 511, at page 517. Thus, if the dominant intention so demands, the Act must be construed so as to have a retrospective operation (Maxwell) Interpretation of Statutes, 12th Edition, Page 216.

Thus judged, we find, as pointed out above, that sub-letting or parting with possession has ever since the advent of rent control legislation looked with scorn. It has almost been cast in the mould of an inexonerable public policy. It has, thus, never been a right, much less a vested right of a tenant to unauthorisedly sub-let a premises. Thus, the provision under consideration does not impair a vested right. It does not create a new obligation either. Under the Act 3 of 1947, no express consequences for illegal sub-letting were provided, except u/s 3(1). Section 12(1) only fills up a lacuna which otherwise would have robbed the provision of its vigour and vitality as was the case under Act 3 of 1947. It is this dominant intention which we have to give effect to. And it cannot be achieved unless Section 12(2) is given a retrospective content.

A similar argument had been advanced before the Supreme Court in Gappulal''s case (supra). The Supreme Court repelled the argument holding, "the argument that Section 13(1)(e) takes away vested right and should not be given retrospective effect is based on fallacious assumption. Apart from the Rent Act, the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit. Section 13(1) protects the tenant from eviction except in certain specified cases. If one of the grounds of ejectment is made out, the tenant does not qualify for protection from eviction. We have no reason for presuming that Section 13(1)(e) is not intended to apply to sub-lettings before the Act came into force.

u/s 7(3) of Act 3 of 1947, sub-letting was prohibited. It could be done only with the permission of the District Magistrate. In Nanha and Another Vs. Deputy Director of Consolidation, Kanpur and Others, , it was held that even if a premises was sub-let contrary to the provisions of Section 7(3), the Distt. Magistrate would not be entitled to allot it to any body else, it was with a view to plug this lacuna that Section 12 of the Act XIII of 1972 was enacted. It, thus declares the intention of the Legislature which was always latent under the old Act. It in a way explains the intention which lay embedded in Section 7(3) of the old Act. As has been observed by the Supreme court in K.M. Kanavi Vs. The State of Mysore, , that if a new Act is to explain an earlier Act it would be without objection unless construed retrospectively.

It, therefore, appears to us that if a tenant has sub-let the premises either before or after the coming into force of U.P. Act No. 13 of 1972, he would come within the clutches of Clause 12(1)(b), and it does not matter that he had the right to sub-let the premises u/s 108(1) of the Transfer of Property Act. In the absence of Rent Act, a landlord had a common law right to evict the tenant either on the determination of tenancy or by efflux of time. While the Rent Control Legislation has provided a number of facilities to the tenant, it should not be construed so as to destroy the limited relief which is available to a landlord. Clause 12(1)(b) entitles the District authorities to take action for eviction of a person is illegally brought in the scheme of the Act is to protect a lawful tenant and not a person who is illegally inducted. Permitting a subtenant or a person unauthorisedly brought in to continue in possession is to defeat the purpose and object of the Act. A protection is available to a tenant only so long as he does not commit a breach of the provisions of the Act.

These are external aids in interpreting the provision. But intrinsic aid is available in the interpretation of the provisions of Section 12 which irresistibly lead one to a conclusion that the provision is retrospective Section 12(2) as well as Section 12(3) employ a language which is in present tense. But proviso to Section 12(3) is significant. It provides consequences even if a tenant build an accommodation prior to the commencement of the Act. The legislature has, therefore, tacitly manifested its intention. If a provision which is worded in the present tense has retrospective effect according to the legislative intent itself, there are stronger reasons to lean in favour of retrospectively in the case of a provision, which is worded in present perfect tense. The provision is, in fact, retrospective. It does not penalise one for something done in the past. It is well-settled that no man has such a vested right in his past crimes and consequences as would entitle him to insist that in no future legislation shall any regard whatever he had to his previous history-- The State of Maharashtra Vs. Vishnu Ramchandra, . The provision of Section 12 of Act 13 of 1972 do not inflict any punishment but only protect the public from illegal activities of another. The allotment of a house is made only on the satisfaction of the District Magistrate that the house is bona fide required by that person. It he unauthorisedly sub-lets the premises, he does not only abuse the orders but the sub-letting per se reflects that the house is/or was not at all required by that person. If this illegal act done in the past has proximate relation with the present, it cannot be said that such illegal acts cannot at all be looked into-- Syed Bashiruddin Ashraf Vs. Bihar Subai Sunni Majlis-e-awqaf and Others, .

In the present case, however, it would be seen that this argument does not apply. Section 7(3) of the old Act also prohibited a tenant from sub-letting. The breach of provision was punishable u/s 8 of the said Act. In Ram Mani''s case, although the Full Bench did not approve the decision given in Mohd. Ishaq''s case but still it found that if a tenant-in-chief sub-lets the accommodation without having previously obtained the permission of the District Magistrate, he could be prosecuted u/s 8 of the said Act. Therefore, a person committing breach of Section 7(3) of the old Act was punishable. The interpretation placed by Section 12(1)(b) does not make a person guilty of offence who was not otherwise liable to be prosecuted u/s 8 of the old Act. The counsel for the Petitioner, however, made a reference to Mangi Lal''s case and urged that this view if taken would be in conflict with the decision of the said case. The submission is not tenable. In that case, the Full Bench was called upon to interpret provisions which were enacted by U.P. Act No. 13 of 1972 and were not to be found in the old Act. It is in this connection that the Full Bench observed that:

Under that Act tenant''s constructing a building otherwise acquiring it in a vacant state did not result in withdrawal of protection from eviction. These activities have come to entail the consequence of eviction only under the present Act. The legislature did not enact the present Act generally as an ex post facto...

For the reasons give above, we find that Section 12(1)(b) takes within itself not only the cases which came into existence after the commencement of this Act but also before. It is retrospective in operation.

The view that we have taken has been expressed in several decisions of this Court--See Shambhu Nath Tandon v. IX Addl. Distt. Judge Allahabad 1976 AWC 807, Batkunthanath Sharma v. Distt. Judge 1977 (U.P.) RCC 457, Ballabhdas Dagav. IIIrd Additional Distt. Judge 1978 (U.P.) RCC 565 and Pur an Chand v. Distt. Judge 1978 (U.P.) RCC 666.

However, our attention was also drawn to Allied Products Distributors v. Arm Kumar 1979 AWC 251. This decision had been approved by the Full Bench in writ petition No. 750 of 1979, Khubi Singh Yadav v. The District Judge, Allahabad, decided on January 21 1980--see 1980 AWC 97. In this case, a Division Bench held that Section 12(1)(a) and 12(2) of U.P. Act No. XIII of 1972 are prospective. It also made similar observation with regard to Clause (b) of Sub-section (1) of Section 12. This decision had been approved by the Full Bench only for the limited purpose holding that Sub-section (2) of Section 12 and Clause (a) of Sub-section (1) of Section 12 was prospective. In this case, the controversy relating to Clause (b) Sub-section (1) of Section 12 did not directly arise. The observations made with respect to Clause (b) of Sub-section (1) of Section 12 should not be deemed to have been approved. To that extent M/s Allied Products does not lay down the correct law.

The next point to be determined is with regard to interpretation of Section 12(2). In this provision the legislature has used the word "admits". The use of "admits" is indicative or" its intention to provide for a deemed vacancy in a case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner. Even applying the literal interpretation, it will not be possible to hold that Section 12(2) covers a case of taking a person as a partner before the enforcement of the U.P. Act No. 13 of 1972. A full bench of this Court was called upon to interpret Section 12(3A) in Civil Misc. Writ No. 750 of 1979, Khubi Singh Yadav v. The District Judge, Allahabad--sea 1980 AWC 97. It held that Sub-section (3-A) of Section 12 was attracted only where the event of transfer took place after the coming into force of Amending Act No. 28 of 1976 on July 5, 1976, This provision was not retrospective in operation. The view taken in that case applies with full force to the interpretation of Sub-section (2) of Section 12.

It may be useful to point out that a controversy relating to taking a partner in his business and carrying it on along with him came up for decision under the old Act. The consistent view of this Court had been that a tenant was entitled to use a premises for whatever business he liked. The position of a partner will only be that of a licencee. He could not be deemed to be a sub-tenant. For proving sub-tenancy, what was necessary to establish was that some rights in the tenancy must have been transferred in his favour.

For the above proposition, reference may be made to Seth Luxmi Chand v. Nathmal Dull Chand 1965 AWR 663.

It would, thus, be found that under the old Act, the position was altogether different. The view was that a mere creation of partnership in the business did not necessarily create any interest in the tenancy and that upon the facts of each case, it had to be seen whether any transfer of interest had been created in the tenement. Under Sub-section (2) of Section 12, however, it is not necessary whether any interest in the tenancy was created. Mere taking of a person as a partner or a new partner is a ground in itself to attract Sub-section (2) of Section 12. But as already pointed out above the use of word "admit" in Section 12(2) shows that the case of admission of partners before the commencement of the Act does not fall within its purview. It takes within its ambit only those cases where a person is admitted as a partner, who is not a family member of the tenant, after the enforcement of this Act. So in our opinion, therefore, Section 12(2) is prospective and cannot be applied to cases where partners had been taken before the commencement of this Act.

The only point that remains to be considered is about Clause (a) of Sub-section-(1) of Section 12. This is a new ground on the basis of which a vacancy can be deemed to have occurred. Such a provision did not find any place in the old Act. From the phraseology used in this section and the context, this provision appears to be prospective and will not apply to cases of removal of effects before the Act. Since this question is covered by the decision in Mangi Lal''s case (supra), we need not state the reasons in this judgment for agreeing with the view taken in that case. This clause is, therefore, prospective.

Let the papers of this case be laid before the learned Single Judge with the aforesaid answers.