1. The question which falls for determination in this petition is whether a contract of tenancy entered into after the coming into force of the U.P Act No. 13 of 1972 is enforceable at law at the instance of the lessor and a decree for ejectment and rent can be passed against the lessee in respect of an accommodation governed by the aforesaid Act. Both the courts below have answered this question in the negative relying on the provisions of the aforesaid enactment expressly prohibiting letting out of an accommodation otherwise than under an order of allotment. The petitioner, who is the lessor, contends that the view taken by the courts below is wrong. The submission is that the contract even if it does not bind the authorities, is fully binding upon the parties to it.
2. Having heard learned counsel for the parties, I find no merit in the above contention. In my opinion the courts below have rightly refused to grant any relief to the plaintiff. I proceed to give my reasons below. Before I do that the relevant facts which lie within a narrow compass may be set out in brief. The suit giving rise to this petition was filed by the petitioner being original suit No. 398 of 1976 in the court of the learned Judge, Small Cause. Meerut for ejectment of the defendant No. 1, who is arrayed here as respondent No. 3, as well as for recovery of arrears of rent and mesne profits. The suit was filed on the allegation that the defendant had sublet the accommodation in dispute to the defendant No. 2. The defence of the defendant No. 1 was that the defendant No. 2 was his own brother. There was no subletting. In any case the contract of tenancy set up by the plaintiff was void and unenforceable at law, having been entered into in breach and disregard of express statutory prohibition contained in the aforesaid Act.
3. The defendant No. 1 filed an application before the trial court for disposing of the question as to the maintainability of the suit as a preliminary issue. The application was filed on the allegation that the accommodation had been let out to the defendant No. 1 in the year 1975 i.e at a time when U.P Act No. 13 of 1972 had already come into operation. Under the said Act under S. 11 thereof there was an express prohibition against letting of any building except in pursuance of an order of allotment issued under section 16. Under S. 13 again, there was a complete bar to any person occupying an accommodation in any capacity whatsoever otherwise than under an order of allotment or release under S. 16. S. 13 further provides that if a person so purported to occupy he would be deemed to be an unauthorised occupant of such a building and would also be liable to be prosecuted under S. 31 of the Act. In view of these provisions the contract of tenancy relied on by the plaintiff in support of his claim for ejectment and rent was entirely unenforceable at law.
4. The aforesaid application was contested by the petitioner. The preliminary issue was, however, answered against the petitioner by the learned Judge Small Cause Court by an order dated 2-8-1979 by which he not only upheld the preliminary objection but also dismissed the suit itself as not maintainable.
5. Aggrieved, the petitioner filed a revision under Section 25 of the Provincial Small Cause Courts Act, but without any success. The revisional court agreed with the trial court on the question whether the suit was maintainable.
6. Sri Murlidhar, learned counsel for the petitioner submitted that the contract of tenancy, even though entered into without an order of allotment was binding on the parties even if the same could be ignored by the authorities on the ground that the same was expressly or impliedly forbidden by the enactment. Elaborating the submission, learned counsel submitted that Ss. 11, 13 and 31 of the aforesaid Act were not irreconcilable with the binding character of the contract as between the landlord and the tenant. He submitted that the prohibition was only against the initial letting or occupation and that the continuance of occupation in pursuance of the contract did not fall within the mischief of Ss. 11 or 13.
7. In support of the aforesaid contention learned counsel placed reliance on three decisions, namely (1974) 2 SCC 472 : AIR 1974 SC 1924 (Murlidhar Agarwal v. State of U.P); AIR 1964 All 1 (FB) (Udhoo Dass v. Prem Prakash) and AIR 1980 Andh Pra 181 (FB) (Shankar Lal v. Jagdishwsw Rao).
8. Learned counsel for the respondent, on the other hand, submitted that the view taken by the courts below is correct and is in consonance with the express statutory provisions of the enactment. Further, the view expressed by the courts below is supported by a direct authority of this Court in the case of Geep Industrial Syndicate Ltd. v. Rent Control and Eviction Officer 1982 All LJ 857.
9. Having heard learned counsel for the parties at some length and having given the matter a careful thought, I have no manner of doubt that the contract of tenancy relied on by the petitioner is not enforceable being forbidden by law and that no relief whatsoever can be granted to the petitioner in pursuance thereof.
10. In order to appreciate the controversy the relevant provisions may be reproduced here. S. 11 of the aforesaid Act says:—
“11. Prohibition of letting without allotment order.— Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16.”
11. The next following section, namely, Section 12 lists the circumstances in which a landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof. Sub-section (4) of Section 12 provides that any building or part thereof which a landlord or a tenant has ceased to occupy within the meaning of sub-section (1) or (2) or (3) or (3-A) or (3-B) shall for the purposes of this Chapter be deemed to be vacant.
12. The next provision important for our purpose is Section 13 which may be extracted here:—
“13. Restriction on occupation of building without allotment of release.— Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it he shall, without prejudice to the provisions of Section 31 be deemed to be an unauthorised occupant of such building or part.”
13. Section 14 of the Act purports to regularise occupation of a specified class of existing tenants. The finding of the courts below is that the tenancy in question is not one which is saved by Section 14 of the Act. We have then Section 15 which casts an obligation on the landlord or a tenant vacating the accommodation to intimate a vacancy to the District Magistrate. Neither the landlord has a right to let out nor is the tenant entitled to occupy an accommodation, upon the accommodation falling vacant as provided under Section 13.
14. Section 16 of the Act then lays down the procedure for allotment of an accommodation which is or has fallen vacant or is about to fall vacant.
15. Section 31 of the Act is equally important in the context. Sub-sections (1) and (2) of which being relevant are re-produced here:—
“31. (1) Any person who contravenes any of the provisions of this Act or any order made thereunder or attempts or abets such contravention, shall be punished on conviction with imprisonment of either description, for a term which may extend to six months or with fine which may extend to five thousand rupees or with both.
(2) Whoever demolishes any building under tenancy or any part thereof without lawful excuse shall be punished, on conviction, with imprisonment of either description for a term which may extend to one year or with fine which may extend to five thousand rupees or with both”.
16. An examination of the aforesaid provisions, in my humble view points irresistibly to the inference that the interdict against the letting and occupation of an accommodation after coming into force of the enactment is express and absolute. Letting or occupation otherwise than under an order of allotment after the commencement of the Act is totally forbidden by law and, further, these acts are of such a nature that if countenanced, they would without doubt he opposed to public policy, frustrate the declared and basic object of the Act, namely that of bringing all the available vacant buildings (except those which are specifically excluded) under the control of the authorities so that the same are allotted or released in favour of those whose needs may be the greatest. Elaborate procedure has been prescribed for balancing competing claims of allotment. That seems to be the basic objective which the Act was intended to achieve.
17. Thus, Section 11 of the Act specifically and unequivocally prohibits letting. The term ‘let’ has been defined in the Legal Thesaurus (Regular Edition) by William C. Burton as follows.—
“Allow the use of, charter, contract, convey, demise, grant, grant the occupancy of hire, hire out, lend, loan, make available, rent, rent out.”
18. To the same effect is also how the term ‘let’ has been defined in the Stroud's Judicial Dictionary (Fourth Edition). According to this dictionary the term ‘let’ is synonymous with the term demise of a tenement and it implies the conferment of a right of quiet enjoyment by the lessee of the demised premises. In my opinion the plain and simple import of the term ‘letting’ implies the grant of a contract by a landlord in favour of a person entitling him to use the tenement let out to him on payment of a certain rent to the landlord. ‘Letting’ implies the right not merely to enter upon the property demised but to enjoy its continued user by the lessee for the period of contract or till the same is terminated. I am unable to accept the contention that ‘letting’ implies merely the initial act of occupation and not the continued enjoyment of the property demised under the contract. The prohibition contained in S. 11 is not limited to the initial act of induction of the tenant. It extends to both the formation as well as the execution of the contract of tenancy. For under such contracts the landlord not only inducts the tenant, but authorises the continuance of the tenant over the demised premises on payment of the rent reserved therefor.
19. The acceptance of the submission of the learned counsel that the penal consequences contemplated in S. 31(1) flow only from the initial letting and occupation and they are not attracted to the continued occupation or operation of the agreement of tenancy would clearly amount to permitting the parties to circumvent the law in an indirect way. It is settled law that what may not be done directly cannot be allowed to be done indirectly (See Jagbir Singh v. Ranbir Singh, (1979) 1 SCC 560 : AIR 1979 SC 381. In Fox v. Bishop of Chister (1824) 2 B & C 635, it was held that the provisions of an Act of Parliament shall not be evaded by shifts and contrivances. To the same is what has been staged in the Maxwell's Interpretation of Statutes 11th Edition) page 109 — “to carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner, that which it has been prohibited or enjoined.”
20. The submission, therefore, that Ss. 11 and 13 prohibit only the initial act of letting and occupation and that it is only these initial acts which have been made penal under S. 31(1) must be rejected on the short ground that the same will enable the parties to defeat the provisions of law by ‘shifts and contrivances.’ It would lead to strange results, if the submission is countenanced. There would be large-scale evasion of the Act. There are many a landlord or tenant who would be willing to enter into contracts of tenancy thereby taking out of the field of immediate availability a large number of buildings which would otherwise be available for allotment to persons whose need might be far, far greater, by carrying out the operation in a clandestine and surreptitious manner. There will be no dearth of such during landlords and tenants who would be willing to go to any length, including running the risk of being prosecuted in the event of being caught, in their desire to make money or to pay money for giving or taking on rent houses under such private arrangements in order to avoid going through the cumbersome process of allotment prescribed under the law.
21. My conclusion, therefore, is that the contract of tenancy relied on by the petitioner was forbidden by law by virtue of the express prohibition contained under Ss. 11 and 13, and is by its very nature such that if permitted it would defeat the provisions of the aforesaid Act. The contract is plainly opposed to public policy being repugnant to public interest. The policy which is unmistakably discernible from the various provisions of the Act is that no one shall let any accommodation or occupy the same after the coming into force of the Act except in pursuance of an order of allotment or release. That policy will clearly be defeated if such contracts of tenancy receive the seal of approval of the court. And the mere fact that the authorities would not be bound by that contract and can on that account evict the unauthorised occupant is not enough consideration for holding that the contract of tenancy would be binding on the parties in any case when the same is expressly forbidden by law. It is common knowledge that it takes years before an unauthorised occupant is thrown out.
22. For the reason stated above, therefore, I hold that the contract of tenancy in question is clearly void and ineffectual in law under S. 23 of the Contract Act.
23. The view, that I am taking, is fortified by a Division Bench decision of this Court in the case of Geep Industrial Syndicate Ltd. (1982 All LJ 857) (supra). The Division Bench had occasion to consider the effect of Ss. 11 and 13 at some length. It also considered the question whether the ratio of the Supreme Court decision in the case of Murlidhar Agarwal ((1974) 2 SCC 472 : AIR 1974 SC 1924) (supra) could be validly applied to the cases covered by the present U.P Act No. 13 of 1972. K.C Agarwal, J., speaking for the Division Bench observed that the dictum of the Supreme Court in the case of Murlidhar Agarwal was no longer applicable to the cases covered by the U.P Act No. 13 of 1972 and that the contract of tenancy entered into in breach of S. 11 of the Act would be completely void and ineffectual in law. He further held by necessary implication that it would not be operative even as between the landlord and the tenant. K.C Agarwal, J. further observed thus at page 863 (of 1982 All LJ) paragraph 23 of the report:—
“The policy behind S. 11 is to safeguard the interest of the general public for the good of whom the Act has been made. To permit any person to let for profiteering or for his personal ends would injure the interest of the public. Any contract, therefore, arrived at between two persons, which contravenes S. 11 of U.P Act XIII of 1972, would be void inasmuch as such a contract is forbidden and would, therefore, be illegal. It has been said that “a Judge is not free to speculate upon, what, in his opinion, is for the good of the community. He must be content to apply, either directly or by way of analogy, the principles laid down in the previous decisions. He must expound, and not expand, this particular branch of law. The heads of public policy thus comprise, and are limited to nine types of contracts already enumerated at page 321 (Cheshire's Law of Contract, Eighth Edition, page 322).”
24. The Division Bench held that such a contract is both forbidden by law and if permitted would be injurious to public interest and consequently the same must be held to be void under S. 23 of the Contract Act.
25. The above Division Bench decision of this Court fully supports the case of the respondent as well as the view taken by me. I am in respectful agreement with the view expressed therein.
26. I now turn to the decisions cited by the learned counsel for the petitioner. In the case of Udhoo Dass (AIR 1964 All 1) (FB) (supra) of this Court had held that a contract of tenancy entered into between the landlord and the tenant demising a premises without an order of allotment would be binding on the parties even though as against the District Magistrate exercising powers under the U.P (Temporary) Control of Rent and Eviction Act, 1947, the contract would be void and ineffectual. This case was concerned with a lease granted by the landlord in violation of the provisions of S. 7(2) of the 1947 Act. The view taken by the Full Bench was approved by the Supreme Court in the case of Murlidhar Agarwal ((1974) 2 SCC 472 : AIR 1974 SC 1924) (supra). In the case of Geep Industrial Syndicate Ltd. (1982 All LJ 857) (supra) the Division Bench directly considered the question whether the dictum laid down by the Supreme Court in the case of Murlidhar Agarwal was applicable even to a case governed by Act No. 13 of 1972. Analysing the provisions of the present Act, in particular those of Ss. 11 and 13, the Division Bench answered the question in the negative and held that the position has now been made clear beyond doubt under the new Act and that the contract would clearly be void for the reasons stated above. The substance of the holding of the Division Bench is that the distinction which the Supreme Court drew as regards the binding character of the contract between the District Magistrate, on the one hand, and the landlord and the tenant on the other, no longer existed in view of the express prohibition against letting and the scheme of the new enactment.
27. I am in respectful agreement with the aforesaid decision. In my humble view it would not be right to apply the ratio of the Supreme Court decision in the case of Murlidhar Agarwal ((1974) 2 SCC 472 : AIR 1974 SC 1924) to a contract of tenancy entered into subsequent to the coming into force of the 1972 Act. The provisions of the 1972 Act are radically different in material aspects from the provisions of the 1947 Act. Provision after provision in the hew enactment reiterates the basic policy of the enactment which is to bar absolutely any attempt to let out or occupy a building except in accordance with an order of allotment. There was no provision whatever in the 1947 Act which may even indirectly correspond with the provisions of Ss. 11 and 13 of the enactment. The decision of the Supreme Court was rendered in a statutory setting which was materially different from the present enactment and, in my opinion, it would not be right to apply the dictum of that decision in the context of an entirely new enactment which was avowedly intended to repeal the old enactment and to replace it by a comprehensive code of a permanent character, unlike the 1947 Act, which was a temporary enactment.
28. Learned counsel for the petitioner, however, placed strong reliance on the Full Bench decision of the Andhra Pradesh High Court reported in AIR 1980 Andh Pra 181 (Shankar Lal v. Jagdishwar Rao) in which the decision of the Supreme Court in the case of Murlidhar Agarwal ((1974) 2 SCC 472 : AIR 1974 SC 1924) (supra) was considered at some length while construing the effect of a contract of tenancy and its binding character on the parties thereto in relation to the provisions of Andhra Pradesh Buildings (Lease. Rent and Eviction) Control Act. It was held relying on the dictum of the Supreme Court in the case of Murlidhar Agarwal that the contract was valid and operative infer se the parties, though it was void against the Controller. The Andhra Pradesh High Court held that even though the provisions of the Andhra Pradesh Rent Control Act contained a provision expressly prohibiting letting or occupation of a building except with the permission of the Controller, the dictum of the Supreme Court in the case of Murlidhar Agarwal based on interpretation of sub-sees. (1) and (2) of S. 7 was still applicable.
29. With great respect, on this controversy, I would prefer to follow the decision of our own Court in the case of Geep Industrial Syndicate Ltd. (1982 All LJ 857) (supra), I fully agree with the view expressed by the Division Bench of our Court that the ratio of the decision in the case of Murlidhar Agarwal ((1974) 2 SCC 472 : AIR 1974 SC 1924) cannot be applied to cases governed by the 1972 Act. I respectfully adopt the reasoning of K.C Agarwal, J., who spoke for the Division Bench in the case of Geep Industrial Syndicate Ltd. It is hence not necessary to make any further comments on the decision of the Andhra Pradesh High Court.
30. Learned counsel for the petitioner also submitted that the maxim ‘in pari delicto’ ought to be applied to the present case and the plaintiff should be granted the relief at least of damages, if not rent, for use and occupation.
31. I am unable to accept this contention. All the reliefs claimed in the suit are founded upon the contract referred to above which has been found to be void on the ground that the same is forbidden by law as well as on the ground that it is repugnant to public policy. The contract relied on by the petitioner was clearly calculated to circumvent express provisions of law. Hence, no relief can be granted to the petitioner on the basis suggested by him. The court cannot lend a helping hand to the plaintiff in any manner, directly or indirectly.
32. It was further urged that if the court does not grant the relief of damages for use and occupation to the extent of fair rent, it would amount to putting a premium on the tenant ‘inequity’.
33. I cannot accept the above contention. The refusal to grant relief to the plaintiff is founded in general principles of policy, namely, ex dolo malo non aritur actio, which means that no court will lend its aid to a man who founds his cause of action in an immoral or an illegal act. In this connection. I cannot do better than to quote a passage from the judgment of that celebrated Judge, Lord Mansfield, in Holman v. Johnson, reported in (1775) 1 Cowp. 341, at p. 343:—
“The objection that the contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this: ex dolo malo non aritus actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then the Court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it, for where both are equally in fault potior est conditio defendantis.”
34. The aforesaid statement of law provides a complete answer to the petitioner's last submission. Contracts such as that upon which the plaintiff's claim is founded affect not merely the parties thereto, but, if permitted or recognised, they would have much wider repercussions' affecting adversely the public at large as discussed above. It is because of this principle and considerations of public policy that no assistance whatever can be given to the petitioner, further, it cannot be said that the plaintiff is any the less blameworthy than the tenant.
35. It cannot be said that the plaintiff is not ‘in pari delicto’ with the defendant. In any case, if the plaintiff is being deprived of profits out of the use of the demised premises, he has no body but himself to thank for. Thus, in any view of the matter, no relief whatever can be granted to the plaintiff.
36. In the result, the petition fails and is dismissed, but I make no order as to costs.
37. Petition dismissed.