JUDGMENT S.U. Khan, J.
1. Respondent No. 2 initiated eviction proceedings against petitioner under Section 2A of U. P. Act No. 13 of 1972 before Prescribed Authority/IXth Additional C.M.M., respondent No. 1 Kanpur Nagar, which were registered as rent case No. 138 of 1992. The said application was allowed on 26.10.1993. This writ petition is directed against the said order.
2. Respondent No. 2 stated that petitioner was inducted in the accommodation in dispute as licensee in June, 1988 on monthly rent/licence fee of Rs. 275. Respondent No. 2 also filed a rent deed/licence deed. He also filed photocopy of intimation dated 16.6.1988 given to District Magistrate allegedly by both, i.e., respondent No. 2 and petitioner. It is significant to note that in the original application under Section 2A of the Act nothing was said with regard to the deed dated 16.6.1988 or the joint intimation given to District Magistrate of the same date.
3. Application for eviction of the licensee can be filed under Section 2A (5) of the Act only if licence has been granted in accordance with the said section. Joint intimation to the D.M. is necessary ingredient of the said section and if such intimation is not given then eviction proceedings under Section 2A (5) of the Act are not maintainable as held by the Supreme Court in 1998 (2) ARC 599 (SC). As nothing was mentioned in the original application regarding Joint intimation to the D.M. hence the application itself was not maintainable. In any case neither in the original application nor in the affidavit filed by the landlord anything was mentioned regarding order of D.M. extending the period of temporary occupation of petitioner up to six months. Even if it is assumed that joint intimation was given to D.M. for three months occupation of petitioner as licensee by respondent No. 2 and petitioner, application under Section 2A (5) of the Act was not maintainable for want of order of D.M. extending the period of the temporary occupation up to six months. In this regard reference may be made to the Division Bench authority of this Court reported in 1982 ARC 528 (para 22). The tenant had denied giving of joint intimation to the D.M./Prescribed Authority did not record any finding with regard to the said fact. Petitioner had filed various rent receipts uptil February, 1992, which were not denied by the respondent No. 2. In the original application filed by respondent No. 2 it was stated in para 6 that the petitioner had paid licence fees till 31.3.1992.
4. Section 2A of U. P. Act No. 13 of 1972 is quoted below :
"2A. Special provisions for short term licence.--(1) Notwithstanding anything contained in this Act, a person occupying a building as owner or as tenant or in any other capacity (hereinafter in this section referred to as licensor) may permit any other person (hereinafter in this section referred to as licensee) to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment under Section 16 :
Provided that intimation of the grant of such licence shall be given jointly by the licensor and the licensee to the District Magistrate within one month from the date of occupation of the building or part by the licensee :
Provided further that the District Magistrate may by order, extend the maximum period of such temporary occupation up to 6 months in the aggregate (Including the original period of occupation) :
Provided also that similar licence shall not be granted again to any other person in respect of the same building or part within a period of one year from the date of vacation of the building or part by the last licensee.
(2) Such licensee shall not be deemed to be a tenant for purposes of Section 20, notwithstanding that he pays or is liable or pay rent for such occupation.
(3) Such licensor shall not be deemed to have ceased to occupy such building or part within the meaning of Section 12 merely on the ground of having granted such licence.
(4) The District Magistrate shall not make an allotment under Section 16 in respect of the building or part vacated by the licensee except with the consent of the landlord.
(5) If the licensee omits or refuses to vacate the building or part after the expiry of the period of licence the licensor may make an application to the prescribed authority for his eviction, and the prescribed authority shall thereupon order his eviction, and its order shall be final :
Provided that no order shall be made under this subsection except after giving to the parties concerned a reasonable opportunity of being heard.
(6) The provisions of Section 23 shall apply to an order made under Sub-section (5) as if it were an order made under Section 21 or under Section 22."
5. A perusal of the said section makes it clear that for short-term tenancy/lease of three months with the provision of further extension of three months a fiction has been created by virtue of which said tenancy/lease is treated to be licence. Short-term tenancy/lease is also a lease under Transfer of Property Act, however, by fiction such a tenancy or lease of three months is treated to be licence. The fiction cannot be extended beyond the provisions of Section 2A. Under Section 2A (2) such licensee is required to pay rent however such payment of rent does not make him a tenant. The words "such licensee" clearly refer to a licensee strictly under the provisions of the said section. If after the expiry of three months (or six months as the case may be) landlord continues to accept the rent, then the fiction created by the said section exhausts and relationship of landlord and tenant by virtue of payment and acceptance of rent comes into existence. Any other interpretation will provide an easy tool in the hands of landlord to deprive the tenant of the benefit of Rent Control Act, which is not permissible under law. Any landlord at the time of giving the building on rent to the tenant may compel him to sign intimation to the D.M. to the effect that he was taking the building on licence for three months. Thereafter even if the tenant continues to be in possession of the building as tenant for years together, he would not be entitled to the protection of the Rent Control Act as at any time on the basis of the joint intimation, landlord may file application for his eviction under Section 2A (5) of the Act. The prescribed authority placed reliance upon an authority of this Court reported in 1993 ARC 341, In the said authority, it was observed in para 7 that "In my opinion there is nothing in the provisions contained under Section 2A (5) to restrict the provisions in cases of licences granted under Section 2A alone". The said view is not a good law in view of the aforesaid authority of Supreme Court reported in 1998 (2) ARC 599 (SC),
6. Learned counsel for petitioner has also argued that application under Section 2A (5) was beyond time, having been filed after expiry of about four years from the date on which alleged licence came to end. It is not necessary to decide this question in view of my findings given in the earlier paragraph.
7. Accordingly writ petition is allowed, order dated 26.10.1993 passed by Prescribed Authority/IXth Additional C.M.M., Kanpur Nagar in Rent Case No. 138 of 1992 is set aside and the application filed by respondent No. 2 under Section 2A (5) of U. P. Act No. 13 of 1972 is dismissed.
8. However, it is clarified that respondent No. 2 is at liberty to proceed against the petitioner treating him to be a tenant under Section 20 or 21 of U. P. Act No. 13 of 1972 if the grounds mentioned therein exist.