http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: GIRJA SHANKAR TIWARI AND ANR.

       Vs.

RESPONDENT: HIRDAY RANJAN CHAKRABORTY AND ANR.

DATE OF JUDGMENT05/10/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1989 AIR  151            1988 SCR  Supl. (3) 426  1988 SCC  (4) 758        JT 1988 (4)   147  1988 SCALE  (2)1511

ACT:      U.P.  Urban Buildings (Regulation of Letting, Rent  and Eviction) Act, 1972--Section 12--Deemed vacancy of building- -When arises-- When an employee of a tenant company  without consent  but with knowledge of landlord occupies  premises-- Whether it can be said that there is a deemed vacancy. Held- -Yes.

HEADNOTE:      Certain premises in Rae Bareli were given on rent to an Aushadhalaya  in the year 1946 or 1947 by the landlord.  The Aushadhalaya  went out of existence but an employee  of  the same,   respondent  No.  I  continued  occupying  the   said premises.  He also paid rent in the name of the  tenant  and not in his own name.      Appellant  No. I moved an application under section  12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)  Act  for declaring that the premises  had  fallen vacant and for allotment of the said premises in his favour. Section  12 of the Act provides that where a  landlord  does not occupy the building or substantially removes his  effect therefrom  and  allows  to occupy any person who  is  not  a member of his family then the vacancy should be deemed.  The Rent Controller found that the premises was not occupied  by the  tenant but by a person other than the tenant. The  Rent Controller  held  that the shop was vacant and  allowed  the application.  In  an  appeal the High  Court  dismissed  the application.  The High Court considered respondent No. 1  to be  a part of the Aushadhalaya and the rent that  was  being paid and credited all along in the name of the  Aushadhalaya to be treated as the rent on behalf of the respondent No. 1. Hence  this appeal by special leave. Affirming the  decision of the Rent Controller and setting aside the decision of the High Court, this Court,      HELD:  In  this case, admittedly, the property  is  not being occupied by the members of the tenant’s family. It  is not  vacant but it is occupied by Respondent No. l, who  was not  the  tenant at any relevant time. In our  opinion,  the deemed  vacancy of the premises though not actually  vacant, has happened. [431E]                                                   PG NO 426

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

                                                 PG NO 427      The  tenant of the premises in question has long  left. An  employee  without  the  consent  though,  perhaps   with knowledge of the landlord was occupying the premises but  in such  circumstances it cannot be held as the High Court  has done that there was no deemed vacancy. The High Court was in error in holding that the Aushadhalaya was a tenant  through the  petitioners.  The tenant was the Aushadhalaya  and  the proprietors thereof. It is an admitted factual position  and the  High Court recognised that the Aushadhalaya was  closed in the year 1976. The High Court commented that the landlord recognised  Respondent  No. 1 as a tenant and  was  charging rent  from  him. That is wrong and incorrect. There  was  no such evidence. No rent was charged from Respondent No. 1. He never  paid any rent. The rent was paid in the name  of  the Aushadhalaya by Respondent No. l. [431F-H; 432A]      The  Landlord  knew  that there was  a  change  in  the occupation but the landlord did not consent as there was  no evidence and Respondent No.1 has not said that there was any change  of  tenancy.  The tenancy was not  in  the  name  of Respondent No. 1. The premises, indubitably, was in the name of the Aushadhalaya. It was not in occupation or  possession of the Aushadhalaya, its proprietors or partners, and at the relevant time Respondent No.1 did not claim or purported  to occupy  the same on behalf of the Aushadhalaya.  He  claimed and  asserted  his own right of occupation. He was  not  the tenant.  The  premises,  indubitably, was  occupied  by  the person other than the tenant without his consent but perhaps with the knowledge of the landlord. [432B-D]

JUDGMENT:      CIVIL APPELLATE JURISDlCTION: Civil Appeal No. 3773 of 1988.      From  the  Judgment and Order dated  15.2.1988  of  the Allahahad High Court in Writ Petition No. 3310 of 1983.      R.K.  Jain,  R.B. Mehrotra and Pradeep Mishra  for  the Appellants.      G.C. Mathur and K.P. Gupta for the Respondents.      The Judgment of the Court was delivered by      SABYASACHI  MUKHARJI, J. Leave granted. The  appeal  is disposed of by the following judgment. This appeal arises out of the judgment and order of the High                                                   PG NO 428 Court  of  Allahabad, Lucknow Bench,  dated  15th  February, 1988.  It relates to the premises being shop No.  483/10  in House  No. 483/7, ward No. 11, Station Road, Rae Bareli,  in U.P.,  hereinafter  described as premises  in  dispute.  The house was situated on the first floor of the aforesaid shop. The landlords of the aforesaid shop and house at present are S/Sh.  Anand Kumar Agnihotri and Raj Kumar Agnihotri,  being the sons of late Sh. Krishna Chandra Agnihotri, residents of Station Road, Rae Bareli.      After  the  death  of the owner,  Sh.  Krishna  Chandra Agnihotri, the entire property was divided amongst his  sons and  the present shop and house have fallen in the share  of the aforesaid two sons. The appellant is the  brother-in-law of the said landlords of the premises in dispute. It appears that on 26th April, 1980 the appellant moved an  application before the Rent Control & Eviction Officer, Rae Bareli. that the  premises  in  dispute had fallen vacant  and  the  same should  be  declared  to  be vacant  and  also  applied  for allotment of the said premises in his favour.      The  Rent Controller held that the shop was vacant.  As

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

mentioned  hereinbefore,  the  proceedings  started  on   an application  which was moved by the appellant under  Section 12 of the U.P. Urban Buildings (Regulation of Letting,  Rent &  Eviction)  Act,  1972 hereinafter  called  the  Act,  for allotment of the premises on the ground floor on the  ground that  the premises had fallen vacant. The  Inspector  (Rent) made  a local inspection and found that the  respondent  was residing  on  the first floor whereas on  the  ground  floor certain  medicines  were found and the  water  and  electric connections were in the name of the respondent. Evidence had been  adduced before the Rent Controller. On behalf  of  the respondent it was contended before the Rent Controller  that the premises was not vacant and that the appellant, who  had applied,  was  none  other than the  landlord’s  wife’s  own brother.      The High Court recorded that the building was taken  on rent by M/s. Dhacca Swastic Aushadhalaya, Station Road,  Rae Bareli (hereinafter called ’the Aushadhalaya’), in the  year 1946  or 1947. The Aushadhalaya was no longer  in  existence and  the  service  of the proceedings was  effected  at  its Varanasi  address. It further appears from the records  that the respondent had been doing the profession of Vaidya. On a conspectus  of the evidence the High Court was of  the  view that  the  Aushadhalaya  had  been  a  tenant  through   the respondent  at  the inception. The  business,  however,  was closed  in the year 1976 and the respondent was carrying  on                                                   PG NO 429 his own business. The Rent Controller found that the  tenant was  not in occupation and the tenant, the Aushdhalaya,  nor its  proprietor. The present respondent was not  the  tenant but the premises was occupied by Hirday Ranjan  Chakraborty, the  respondent herein. The Rent Controller found  that  the premises was not occupied by the tenant but by other  person other than the tenant. The High Court found to the contrary. The rent was being  paid, but, as it appears, in the name of the tenant, and not in the name of the respondent in his own name. The rent was paid by the respondent in the name of the Dhacca  Swastik  Aushadhalaya, but the  premises  was  being occupied by the person other than the tenant.      Section  12  of the Act provides  for  deemed  vacancy, which is as follows:      " 12. Deemed vacancy of building 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 it-- (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 mem bers  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 admitsa  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) In the case of a residential building, if the tenant  or any  member of his family builds or otherwise acquires in  a vacant  state or gets vacated a residential building in  the same city, Municipality, notified area of town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy: Provided that if the tenant or any member of his family  had built  any  such  residential building before  the  date  of commencement  of this Act, then such tenant shall be  deemed                                                   PG NO 430

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. Explanation.--For the purposes of this sub-section-- (a)  a person shall be deemed to have otherwise  acquired  a building,   if  he  is  occupying  a  public  building   for residential purposes as a tenant, allottee or licensee; (b)  the expression "any member of family" in relation to  a tenant,  shall  not include a person who  has  neither  been normally  residing  with  nor is wholly  dependent  on  such tenant.     (3-A) If the tenant of a residential building holding  a trans  ferable post under any Government or local  authority or  a public sector corporation or under any other  employer has  been  transferred  to some  other  city,  Municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from  the thirtieth day of June following the date of such transfer or from  the  date  of  allotment to  him  of  any  residential accommodation  (whether any accommodation be allotted  under this  Act or any official accommodation is provided  by  the employer)  in the city, Municipality. notified area or  town area  to  which  he has been so  transferred,  whichever  is later.     (3-B) If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, Municipality,  notified area or town area in which the  said building  is  situate, and such engagement  ceases  for  any reason whatsoever, and he is landlord of any other  building in ally other city, municipality, notified area or town area then  such tenant shall be deemed to have ceased  to  occupy the  first mentioned building with effect from the  date  on which  he  obtains vacant possession of the  last  mentioned building whether as a result of proceedings under section 21 or otherwise.     (4) Any building or Part which a landlord or tenant has                                                   PG NO 431 ceased to occupy within the meaning of sub-section ( 1),  or sub-section  (2), or sub-section (3), sub-section  (3A),  or sub-section  (3-B) shall, for the purposes of this  Chapter, be deemed to be vacant.      (5)  A tenant or, as the case may be, a member  of  his family, referred to in sub-section (3) shall, have a  right, as landlord or any residential buildings referred to in  the said  sub-section which may have been let out by him  before the  commencement  of  the  Uttar  Pradesh  Urban  Buildings (Regulation of Letting, Rent and Eviction) (Amendment)  Act, 1976 to apply under clause (a) of sub-section (1) of section 21  for  the  eviction  of his  tenant  from  such  building notwithstanding  that  such  building is one  to  which  the remaining provisions of this Act do not apply."      In  fact,  the  said  Section  provides  that  where  a landlord  does  not  occupy the  building  or  substantially removes his effects therefrom or allows to occupy any person who  is not a member of his family, then the vacancy  should be deemed.      In  this  case, admittedly, the property is  not  being occupied  by the members of the tenant’s family. It  is  not vacant  but i is occupied by Hirday Ranjan Chakraborty,  who was not the tenant at any relevant time. In our opinion, the deemed vacancy of  the premises though not actually  vacant, has  happened.  The Rent Controller was right in  coming  to that  conclusion. The error into which The High  Court  fell was in considering Hirday Ranjan Chakraborty to be a part Or the  Aushdhalaya  and  the  rent that  was  being  paid  and credited  all  along in the name of the  Aushdhalaya  to  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

treated as they rent on behalf of Hirday Ranjan Chakraborty.      The  tenant of the premises in question has long  left. An  employee  without  the  consent  though,  perhaps,  with knowledge of the Landlord was occupying the premises, but in such  circumstances it cannot be held as the High Court  has done  that there was no deemed vacancy. ’The High Court  was in  error  in  holding that the  Aushdhalaya  was  a  tenant through the petitioners. The tenant was the Aushdhalaya  and the proprietors thereof. It is an admitted factual  position and  the High Court has recognised that the Aushdhalaya  was closed  in the year 1976. The High Court commented that  the landlord  recognised  Sh.  Hirday Ranjan  Chakraborty  as  a tenant  and  was charging rent from him. That is  wrong  and incorrect. There was no such evidence.                                                   PG NO 432 No rent was charged from Hirday Ranjan Chakraborty. He never paid any rent. The rent paid in the name of the  Aushdhalaya by Hirday Ranjan Chakraborty.      The High Court has rightly commented that the  landlord knew  that  there  was a change in the  occupation  but  the landlord did not consent as there was no evidence and Hirday Ranjan Chakraborty has not said that there was any change of tenancy.  The tenancy was  not in the name of Hirday  Ranjan Chakraborty.  The premises, indubitably, was in the name  of the  Aushdhalaya. It was not in occupation or possession  of the  Aushdhalaya,  its proprietors or partners, and  at  the relevant  time  Hirday Ranjan Chakraborty did not  claim  or purported  to occupy the same on behalf of the  Aushdhalaya. He claimed and asserted his own right of occupation. He  was not the tenant. The premises, indubitably, was occupied by a person other than the tenant without his consent but perhaps with the knowledge of the landlord.      In those circumstances, in our opinion, the High  Court was  not  right. The Rent Controller in his order  had  held that  Hirday  Ranjan  Chakraborty could  not  be  given  the benefit of Regulations 6 & 14 of the Act because at no stage the landlord had accepted him as the tenant. In view of this categorical finding, it could not be said that Hirday Ranjan Chakraborty was occupying the premises in question with  the consent of the landlord.      In  The  premises the judgment and order  of  the  High Court  are  set aside. The order of the Rent  Controller  is restored. C. M. P. No. 17425 of 1988      In  view of the above order, no order is  necessary  in this application, and the same is accordingly dismissed. H.S.K.                                      Appeal allowed.