JUDGMENT Yatindra Singh, J.
1. Is there vacancy if the sub-tenant leaves the premises? Who is entitled to have his release application considered first : the landlord owner or the Chief tenant? These are the questions involved in these two writ petitions. This is how they arise.
FACTS
2. There is big house situate at 38, Lytton Road, Dehradun. Sri H.S. Bhatnagar is the owner of the same (the landlord owner for short). A part of this is occupied by him and a part by Dr. Diwan Singh as his tenant (the Chief tenant for short). Dr. Diwan Singh let out a part of the portion in his tenancy to one Sri B.M. Puri (the sub-tenant for short). The landlord-owner says this was some time in 1968 without obtaining any permission from the landlord or the District Magistrate. The chief tenant does not agree. He says it was some time in the year 1960 after taking permission from one Data Ram, brother of the mortgagee of the property at that time. The Chief-tenant further says that subsequently the land lord-owner gave permission ; the order for regularisation was passed in favour of the sub-tenant on 13.7.1970. The landlord-owner disputes this.
3. The sub-tenant left the portion in his possession on 3.1.1978. This is the specific date given by the landlord-owner. There is no finding by any Court on which date he has left the premises and removed his effects from there. But Sri M.S. Negi, appearing for the Chief-tenant does not dispute it. The parties agree that the sub-tenant left the premises on 3.1.1978 and removed his effects therefrom. There is a physical vacancy in respect of the portion in possession of the subtenant. Whether this amount to vacancy in law is another question ; this is to be decided in this case.
4. Three applications have been filed around the time the sub-tenant left the portion in his possession. First application was by the Chief-tenant on 6.12.1977 under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act. 1972 (hereinafter referred to as the Act) in respect of the portion occupied by the subtenant on the ground of his personal need. The second application was by the landlord on 5.1.1978 under Section 16 of the Act for declaration of vacancy and release of the portion in possession of the sub-tenant. The third application was also filed by the landlord-owner on 7.1.1978 under Section 21 (1) (a) of the Act for release of the portion in possession of the sub-tenant on the ground of personal need. It is on these three applications that different proceedings were started that are subject matter of challenge in these two writ petitions. We are not concerned in these two writ petitions with the entire portion, which let out to the Chief tenant. But with the portion which was let out by the Chief-tenant to the sub-tenant. This is clear from the fact that landlord-owner's application on 5.1.1978 for declaration of vacancy as well as his application under Section 21 of the Act. Both were confined to the portion in possession of the portion occupied by the sub-tenant. This portion is referred to as the premises in dispute.
5. The applications filed by the landlord-owner for declaration of vacancy and release under Section 16 was dismissed on 10.8.1978. The revision against the same was dismissed on 15.6.1982. The landlord owner (filed a Writ Petition No. 11895 of 1982 against these orders. It was allowed on 28.8.1995 and the matter was remanded for re-decision. The Rent Control and Eviction Officer by his order dated 28.6.1996 has held that the premises in dispute has been legally released in favour of the Chief tenant by the order dated 26.2.1979 in proceedings started by him under Section 21 of the Act. It is not vacant. The application of the landlord-owner was dismissed. The landlord owner has filed Writ Petition No. 21404 of 1996 against this order. This is the writ petition against order refusing to declare the premises vacant. He was also permitted to add prayer for quashing of the order dated 26.2.1979 at the time of hearing in this writ petition.
6. The other application of the landlord owner under Section 21 (1) (a) for release of the portion in possession of sub-tenant was rejected by the prescribed authority by his order dated 26.2.1979. The appeal against the same was dismissed on 25.3.1982. The other writ petition numbered as 8599 of 1982 is against these orders. This is the writ petition against the order refusing to release the premises under Section 21 of the Act. Both these two writ petitions are taken together.
POINTS FOR DETERMINATION
7. I have heard counsel for the parties. Following points arise for determination in this case :
(i) Was there vacancy due to sub-letting?
(ii) It is admitted case of the parties that sub-tenant left the premises in dispute on 3.1.1978, He has removed his effects from there. Will there be a vacancy under the law in such an event?
(iii) If there is a vacancy in respect to the portion of subtenant, then whose need should be considered first? Should it be the need of the Chief-tenant or should it be the need of the landlord owner?
(iv) In case the need of the landlord-owner is to be considered first, then was there any bond fide need or not?
(v) Should any relief be granted to the petitioner in the writ petition against non-declaration of vacancy?
1st POINT--VACANCY DUE TO SUBTENANCY
8. It is admitted that there was a sub-tenant ; though the date of creation of sub-tenancy is disputed. In any case this was before the Act came into force and at a time the U. P. (Temporary) Control of Rent and Eviction Act. 1947 (the old Act for short) was in force. There is a dispute if the landlord granted any permission for sub-letting. The Rent Control and Eviction Officer in his order dated 28.6.1996 has held that no one has filed any document or evidence to show that sub-tenant was in possession from what date and under which order. It is admitted case that there was no order of allotment or the permission of the District Magistrate under the old Act before the premises was sub-let.
9. The tenant along with his counter-affidavit has filed two documents ; one is the certified copy of application alleged to have been filed by the sub-tenant for regularisation of his sub-tenancy. This is alleged to have been signed by the landlord-owner. The other is a copy of the order passed by the Rent Control and Eviction Officer on 16th July, 1970 regularising his tenancy. These documents were not filed before the Courts below and are filed for the first time here. The landlord-owner in his rejoinder-affidavit says that these are forged documents and should not be taken into account. Be as it may, a vacancy did not occur under the provisions of the old Act in case the tenant sub-lets a portion of his accommodation without the consent of the landlord and the order of the District Magistrate in violation of Section 7 (3) of the old Act. This has been held by the five Judges Full Court Bench of our Court in Ram Mani Devi v. Rent Control and Eviction Officer, 1976 (2) ALR 76.
10. The sub-letting continued. Though there was no vacancy under the old Act because of sub-letting. But will there be no vacancy due to the sub-letting even if it continues after the enforcement of the Act. The counsel for the landlord-owner has cited a Full Bench decision of Smt. Keshar Bai v. D.J., Mathura. 1980 ARC 223, to show that in such a situation, there would be deemed vacancy under the Act. "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. According to the counsel for the petitioner even if there was no vacancy earlier it will become vacant on the enforcement of the Act. I have my doubts about it. But I do not propose to go into this question for the reasons :
* The landlord never objected to sub-tenancy, which even according to the landlord-owner started from 1968. He knew about it. It was in the same house where he was residing. He has waived his rights, if any.
* The landlord did not file any application for declaration of vacancy immediately after the enforcement of the Act. He filed the application only when sub-tenant in fact left the premises on 3.1.1978. Even if it is taken that the Act gave him rights, he never claimed it. He only claimed when the tenant actually removed his effects that to not on the basis of subtenancy but on the ground of removing his effects.
* The landlord neither filed a suit for eviction on the ground of sub-letting nor it filed application for declaring the entire premises as vacant. His initial application was confined only to the portion left by the sub-tenant. It is only after the matter was remanded from this Court that he started claiming that the entire premises in possession of tenant be declared as vacant.
* The portion in the possession of the sub-tenant has in fact fallen vacant. This is dealt in the 2nd point.
11. The landlord is not entitled to claim that the premises in possession of the Chief tenant has become vacant or there is a vacancy in the premises in dispute, namely, the portion in possession of the subtenant only because of sub-letting. The landlord-owner is estopped from raising this plea. He in fact in the circumstances waived it.
2nd POINT--VACANCY--SUB TENANT LEFT THE PREMISES
12. It is admitted case of the parties that the sub-tenant left the portion occupied by him on 3.1.1978. He has removed his effects therefrom. There is physical vacancy. The Act was applicable to the entire building as well as to the portion left by subtenant ; the premises in dispute. No one can occupy the same without it being released or allotted in favour of some one. It is immaterial that there was no privity of contract between the landlord and the sub-tenant or for that matter it was initially in possession of the tenant and was sub-let. The fact that sub-tenant does not have rights greater than the rights of the Chief-tenant or he has to leave in case the Chief-tenant is evicted, does not mean that on the event of removing his effects from the premises, it will not be vacant. There was a vacancy under the Act on 3.1.1978 when the sub-tenant removed his effects and left the premises.
3rd POINT--WHOSE NEED SHOULD BE CONSIDERED FIRST?
13. There was a vacancy on 3.1.1978. The landlord filed an application declaration and release of the premises in dispute on 5.1.1978. His application has been ultimately dismissed on 28.6.1996 on the ground that the Chief-tenant has obtained possession on 11.8.1979 in pursuance of the order dated 26.2.1979. This order was passed by the prescribed authority in an application filed by the Chief-tenant under Section 21 of the Act for the release of the premises in dispute. The landlord-owner's application was also there. In case his application was to be considered first and there was bona fide need to release the premises in dispute in his favour then order dated 26.2.1979 could not be given effect to and the order dated 28.6.1996 cannot be sustained.
14. It is true that the Chief-tenant is a landlord qua sub-tenant. This is due to the definition of the landlord as defined in the Act. In a case tenant files an application for release under Section 21 of the Act against sub-tenant, then such an application would be maintainable.
This is correct due to wording of Section 21 and the definition of the landlord. This does not mean that in a case the owner landlord of the entire building files an application for the release, his application should be considered after the application of the Chief-tenant. There is no decision as to what will be done if there are two such competing rights.
15. The Act was enacted as the preamble says. 'An Act to provide, in the interest of the general public, for the regulation of letting and rent of, and the eviction of tenants from certain classes of buildings situated in Urban areas, and for matters connected therewith'. This was an Act for saving unnecessary harassment to the tenant and to give them some protection. There was neither any intention nor in fact any propriety rights higher than the landlord were given to the tenant. The Act was to safeguard the unnecessary eviction of the tenant. The Legislature merely placed certain restrictions on the right of the land lord-owners. This was the intention of the Act. Should the provisions of the Act be so interpreted that even in a case where there is no eviction of the tenant but there was a question who should get the possession of the premises left by the sub-tenant, the preference should be given to the Chief-tenant over the landlord who is also owner of the property. This was neither the intention of the Act nor it has been done. Sub-tenant is also a tenant. If he vacates the premises in his possession or if it is deemed to be vacant under Section 12 of the Act, then between the Chief-tenant and landlord-owner it is landlord-owner's whose application should be considered first and it is only when it cannot be released in favour of the landlord-owner that the application of the Chief-tenant can be considered.
16. The premises in dispute could be released by the District Magistrate/Rent Control and Eviction Officer only if the landlord bona fide requires the same. This is so mandated in Section 16 of the Act. In the present case, the Rent Control and Eviction Officer has not applied his mind to this question. He has rejected the application of the landlord-owner on the irrelevant ground that it has been released in favour of the Chief tenant. This could not be done without first considering the need of the land lord-owner. The order dated 28.6.1996 is illegal. But should it be quashed? We will consider it while discussing the 5th point.
4th POINT--WAS NEED OF THE LANDLORD BONA FIDE?
17. Sub-tenant left the premises on 3.1.1978. The landlord owner filed an application for declaration of vacancy and release on 5.1.1978. The landlord owner also filed another application under Section 21 for release of the premises in dispute on 7.1.1978. The application of the landlord owner under Section 21 of the Act was dismissed on 21.2.1979. It was held that the landlord owner does not bona fide require the premises in dispute. His appeal against this order was also dismissed on 25.2.1983. The finding of the prescribed authority was affirmed. The Courts below have held that the landlord-owner has obtained the vacant possession of premises in possession of the other tenant and has removed the roofs. If his need was bona fide, then he should not have done so. It is on this ground that it was held that there was no bona fide requirement.
18. The counsel for the petitioner says that these findings are based on the commissioner's report, which is not admissible. This is not correct. This finding was also based on the affidavit filed by the Chief-tenant. So far commissioner's report is concerned, he was Court Commissioner and the certified copy was admissible. In case the petitioner wanted to cross-examine him, he should have summoned him. The Judgment of the Courts below cannot be faulted on this ground. The finding that landlord has no bona fide need cannot be set aside. The Writ Petition No. 8599 of 1982 against the order refusing to release the premises under Section 21 of the Act on bona fide need has no merits and is dismissed.
5th POINT--RELIEF--WRIT AGAINST VACANCY
19. The application for release of the premises in dispute under Section 21 of the Act was filed at the same time when application to declare the premises as vacant. To be precise it was two days after. The need of the landlord-owner in respect of the premises in dispute has been found to be not bona fide under Section 21 of the Act. Can the District Magistrate/Rent Control and Eviction Officer hold otherwise? He cannot. He has no other option. Once the need of the landlord is not bona fide then premises in dispute cannot be released in his favour. It would be futile to quash the order of the Rent Control and Eviction Officer and send the matter back for decision. The Court does not issue such writs.
20. It is no doubt true that the Chief-tenant is entitled to file an application for release on his bona fide need in case the property is not released in favour of the landlord-owner. In the present case, the premises in dispute cannot be released in favour of landlord-owner. His need has been held to be not bona fide. The Chief-tenant has got the property released after establishing his bona fide need. There is no justification for quashing any of the orders.
CONCLUSION
21. The Writ Petition No. 8599 of 1982 lacks merits and is dismissed. The other Writ Petition No. 21404 of 1996 is dismissed but on the grounds mentioned in this Judgment. There will be no orders as to costs.