S.P Srivastava, J.:— The dispute in the present case relates to a building being utilised for business purposes, a vacancy in respect whereof was notified on 13-8-1981 in the proceedings under Section 16 read with Section 12 of the U.P Act No. 13 of 1972 and after disposing of the objections the Rent Control and Eviction Officer ultimately declared the said building to be vacant on 18-11-1991. The order notifying the vacancy as well as the order declaring the premises in dispute to be vacant and available for allotment or release as contemplated under Section 16 of the Act was challenged by the petitioners before this Court by means of Civil Misc. Writ Petition No. 14310 of 1981. A Division Bench of this Court relying upon the decision of the Hon'ble Supreme Court in the case of Trilok Singh and Company v. District Magistrate, Lucknow, reported in (1976) 3 SCC 726 : AIR 1976 SC 1988 : 1977 ARC (S. No. 14) 11 (SC), and considering the impact of the amendments brought in the Act vide the Amending Act No. 28 of 1976, came to the conclusion that the amendments did not make any difference and had no effect on the status or effect of the notification or declaration of vacancy under Section 12 and holding that since such an order caused no injury and caused no prejudice to the interest of a party and further holding that the decision of the Apex Court in Trilok Singh and Company's case continued to be applicable even after the amendments brought in the Rent Control Act in the year 1976, dismissed the writ petition on the ground that such a writ petition against a notification or declaration of vacancy simpliciter was premature. The aforesaid decision of this Court was challenged before the Hon'ble Supreme Court in Civil Appeal No. 8552 of 1983. See the decision of Supreme Court which is reported in 1985 (2) ARC 73 (SC). The Apex Court after considering the effect of the amendments referred to above found it difficult to reconcile to the decision in Trilok Singh ami Company's case and holding that the view taken in Trilok Singh and Company's case that it was unnecessary for the District Magistrate to afford the opportunity of hearing before notifying the vacancy was not correct and further reversing the view in the aforesaid case to the effect that an order notifying the vacancy caused no injury and caused no prejudice to the interest of any party, set aside the judgment and order passed by the Division Bench and directed this Court to rehear the writ petition on merits. It is how this case has come up again before this Court for consideration.
2. It may be noticed that during the pendency of the appeal before the Hon'ble Supreme Court the present petitioners had applied for amendment of this writ petition which was allowed without expressing any opinion on the merits of the contentions sought to be raised in the proposed amendments. While remanding the case the Hon'ble Supreme Court had observed that the amendments sought to be made were of such a nature that they required to be considered and dealt with by the High Court. The facts in brief, shorn of details and necessary for the disposal of this case are that the premises No. 24/34 Mahatma Gandhi Marg, Allahabad was let out to Sheobux Roy for being utilised for business purposes. He established a business therein in the name and style of B.N Rama and Co. On his death the tenancy rights were inherited by his five sons Khush Bux, Sant Bux, Sampat Roy, Ganpat Roy and Sheopat Roy. In due course of time there was a partition amongst the sons of Sheo Bux Roy and the premises in question fell in the lot of Sampat Roy, Ganpat Roy and Sheopat Roy only and the other two sons Khush Bux and Sant Bux ceased to have any concern with it. The three sons stated carrying on different independent businesses in the various portions of the demised premises in different names and styles. All of them, however, utilised the name of ‘B.N Rama & Co.’ Thus, B.N Rama & Co. (Stores) run by Ganpat Roy as Proprietor, B.N Rama & Co. ‘Bar & Restaurant’ run by Sampat Roy and family, B.N Rama & Co. (Wines) run by the same persons, B.N Rama & Co. (Agencies) run by the same persons, B.N Rama & Co. (Drug Stores) run by Sheopat Roy and family and Ganpat Roy came into being and were carried on in the same demised premises.
3. By the year 1980, however, the record shows that there remained only three separate businesses. They were B.N Rama & Co. (Agencies) run by Sampat Roy and his family members B.N Rama & Co. (Stores) run by Ganpat Roy as Proprietor, B.N Rama & Co. (Drug Stores) run by Ganpat Roy and Sheopat Roy and family occupying different portions of the demised premises.
4. On 19-3-1981 two applications were filed by R.N Kapur and R.S Kapoor before the Rent Control and Eviction Officer seeking allotment of the premises in dispute in their favour alleging that Ganpat Roy had illegally sub-let the portions of the shop to different persons in contravention of the provisions of the U.P Act No. 13 of 1972. It was further asserted in this connection that Ganpat Roy had entered into a partnership with Swaroop Kailash his son-in-law and Ramesh Roy his own son constituting a partnership firm in the name and style of B.N Rama & Co. (Textiles) and started a new business in a portion of the disputed shop towards the north. It was asserted that Swarap Kailash was not the member of the family of Ganpat Roy. It was also asserted that Ganpat Roy had sub-let portions of the shop in dispute to B.N Rama & Co. (Agencies) run by Sampat Roy and his family members in partnership. It was also asserted that Ganpat Roy had sub-let another portion of the shop to B.N Rama & Co. (Bar and Restaurant) in which the family members of Sri Sampat Roy were partners. This business was later on converted into business in Godrej Products. It was further alleged that the inner portion (north and east) corner of the shop in dispute was also sub-let by B.N Rama & Co. (Stores) to B.N Rama & Co. (Wines) in which Sri Sheopat Roy and his family members were partners. This prospective allottee further asserted that Ganpat Roy had also admitted as partners Sri Sheopat Roy and his family members in his own business B.N Rama & Co. (Drugs and Stores) though these persons were persons other than his family members. In the circumstances, therefore, it was asserted that a vacancy in the eye of law had come into existence and the entire premises in dispute had become available for allotment and requested that the vacancy be notified and premises in dispute be allotted to him.
5. On the receipt of the aforesaid applications, Rent Control and Eviction Officer directed the Rent Control Inspector to submit a report. This report was submitted on 23-5-81 in which the Rent Control Inspector recommended that no action was called for in view of the stay order which was operating. The Rent Control and Eviction Officer, it appears, was not satisfied with the report and directed that the parties be called and fixed 12-6-81 for hearing of the case. The case, however, could not be taken up on 12-6-81 but when on 13-8-81 the case was taken up, the Rent Control and Eviction Officer heard the prospective allottees and noticing that the occupants of the premises in dispute had not turned up inspite of service of notices, proceeded to consider the question relating to the notification of the vacancy and prima facie being satisfied on the basis of the assertions made in the affidavits filed by the prospective allottee about various portions of the demised premises having been sublet by Ganpat Roy and specially on account of Ganpat Roy having entered into an agreement of partnership to run a business in the premises in dispute with Swarup Kailash as a partner who was not a member of his family, he directed for the vacancy being notified with intimation to all concerned through process-server as well as through publication in the local Newspapers fixing 2-9-81 for consideration of the question regarding the allotment of the premises in dispute. It appears from the record that on earning to know of the order dated 13-8-81 the landlord moved an application on 27-8-81 seeking release of the premises in dispute in his favour. In his application it was asserted that the vacancy in respect of the accommodation in dispute bad already been notified on 13-8-81. It was also asserted that Ganpat Roy who was utilising the portion of the premises in dispute for running a business in the name and style B.N Rama & Co. (Stores) had sublet a part thereof which had become available for being released. On the receipt of the application for release, the Rent Control and Eviction Officer called for a fresh report from the Rent Control Inspector which was submitted on 1-9-81. The Rent Control Inspector proceeded on the assumption that the premises in dispute had already been held to be vacant under the order dated 13-8-81 and in his report recommended for the release of the accommodation in favour of the landlord. It appears that in pursuance of the direction issued by the Rent Control and Eviction Officer, the notices regarding the notification of the vacancy were published in the local newspapers on 31-8-81. It appears that from this publication, the sitting tenants came to know about the proceedings under Section 16 of the U.P Act No. 13 of 1972 initiated by R.N Kapoor and R.S Kapoor the prospective allottees. An application under Rules 8(2), 22(b), 22(E) of the Rules framed under U.P Act No. 13/1972 was, therefore, filed on behalf of Sampat Roy, Ganpat Roy and Sheopat Roy which was duly supported by an affidavit, praying that the order dated 13-8-81 be set aside and the tenants may be afforded opportunity to have their say in the matter. In the affidavit it was asserted that the sitting tenants/occupants of the premises in dispute had not been served with any notice whatsoever of the proceedings and the premises in dispute could not be deemed to be vacant and available for allotment or release. The Rent Control and Eviction Officer considered the application filed by the sitting tenants, heard the prospective allottees, the landlord and the sitting tenants on the merits of the said application and vide the order dated 30-9-81, while sitting aside the order dated 2-9-81 directed that the sitting tenants/occupants shall be provided full opportunity to file objection and lead evidence on the question of vacancy. Parties were directed to lead the entire evidence in support of the respective cases before 14-10-81 and fixed that date for hearing the arguments on the question relating to the accrual of vacancy in respect of the accommodation in dispute. The application filed by the sitting tenants to which a reference has already been made above was thus, disposed of by the Rent Control and Eviction Officer under the order dated 30-9-81. It appears that in support of their case the sitting tenants filed affidavits of Ganpat Roy, Sampat Roy and Sheopat Roy besides the affidavits of N.M Banerji as well as Dr. Ghosh. The prospective allottees had filed the affidavit of R.N Kapoor along with the copy of the partnership deed dated 19-8-76. On behalf of the landlord the affidavit of Harish Tandon was filed along with various documents.
6. The Rent Control and Eviction Officer considered various affidavits and the materials which were placed on record and heard the parties. Before the Rent Control and Eviction Officer it was asserted by the prospective allottees as well as the landlord that Ganpat Roy alone was the tenant of the entire premises in dispute and had sub-let the same by entering into partnership with Swarup Kailash his son-in-law who was not a member of his family as was evident from the partnership deed dated 19-8-76 and had thereby contravened the provisions contained in Section 25 of the Act. In support of the assertion that Ganpat Roy alone was the tenant reliance was placed by the landlord on the fact that the rent in respect of the premises in dispute was being paid by Ganpat Roy only. The Rent Control and Eviction Officer came to the conclusion that since it stood admitted to the tenants that Ganpat Roy had taken his son-in-law into partnership, the entire set of co-tenants were to be deemed to have ceased to occupy the building. The contention of Sampat Roy and Sheopat Roy to the effect that the act of Ganpat Roy could not be deemed to be the act of all the other tenants was rejected by the Rent Control and Eviction Officer. Relying upon the decision of this Court in the case of Smt. Nathibai v. District Judge, Kanpur, reported in 1981 ARC 575 and the decision of this Court in the case of Smt. Ram Deri Sakya v. 1st Additional District Judge, Lucknow, reported in 1981 ACJ 409 : 1981 ARC 305 (LB) (FB), the Rent Control and Eviction Officer concluded that the aforesaid decisions were fully applicable to the circumstances of the present case and once it stood admitted by the occupants that Ganpat Roy had admitted Swaroop Kailash as a partner and this act being in clear violation of Section 25 of the Act as there was no written permission of the landlord or the District Magistrate for this purpose all the tenants were liable to be evicted because, according to the Rent Control and Eviction Officer, in law several co-tenants constituted one person. The Rent Control and Eviction Officer was of the view that if one of the co-tenants contravened law all of them together were liable to fall as they were collectively liable though contravention might have been committed only by one of them. The Rent Control and Eviction Officer tried to draw support for this view of his from the observations made in the case of Badri Narain v. Rameshwar Dayal, reported in AIR 1951 SC 186. Consequently, the Rent Control and Eviction Officer held that the entire premises which had bran let out to Shiv Bux Roy and had been inherited by his successors was liable to be declared vacant as contemplated under Section 12 of the U.P Act No. 13 of 1972. He, therefore, declared the premises in dispute to be vacant and fixed 25-11-81 for hearing/arguments on the release/allotment applications.
7. By means of this writ petition, the petitioners have prayed for the quashing of the orders dated 13-8-81, 30-9-81 and 18-11-81 and for striking down the provisions contained in Sections 3(g), 12(2), 12(4), 25(2) and Explanation I to Section 25(2) of the U.P Act No. 13 of 1972.
8. I have heard Sri A.K Yog, learned Counsel for the petitioner and Sri A.K Sharma, learned Counsel for the respondents. I have also heard the learned Standing Counsel representing the State.
9. Learned Counsel for the petitioner has urged that the entire proceedings leading up to the passing of the order dated 18-11-81 were without jurisdiction, null and void. It has been asserted that the respondent-authority had not adhered to the procedure prescribed under Rule 8 of the Rules fained under U.P Act No. 13 of 1972, the requirement contemplated wherein are of mandatory nature. It was further asserted that no notice whatsoever was served on the sitting tenants/occupants of the premises in dispute before its inspection by the Rent Control Inspector which was a fatal defect. It was further asserted that in the facts and circumstances of the present case the provisions contained in Section 12(2) of the U.P Act No. 13 of 1972 could not be deemed to have been attracted at all and in the absence of any evidence or material whatsoever which could lead to an inference that a sitting tenant had allowed any portion of the premises in dispute to be occupied by any person who was not a member of his family and there being no evidence whatsoever to show that any portion of the premises in dispute had ceased to be occupied by the sitting tenant, the question of applying the provisions contained in Section 12(1)(b) of the Act could not arise. It has further been asserted that since none of the provisions contained in either Sections 12(1)(b) or 12(2) of the Act could be said to have been attracted in the facts and circumstances of the case, the respondent-authority had acted with manifest illegality in assuming that the sitting tenants had contravened the provisions contained in Section 25 of the Act. It has further been asserted that on the facts and materials brought on record no reasonable person could come to the conclusion that sub-letting of a portion of the accommodation in dispute as invisaged under the provisions of U.P Act No. 13 of 1972 had come into being and no presumption of fact of sub-letting even by fiction of law envisaged under Explanation to Section 25 of the Act could be deemed to have become available to the landlord. The contention raised by the learned Counsel for the petitioner is that the premises in dispute could not have been deemed to have become vacant as contemplated under Section 12 of the Act so as to become available for either release or allotment.
10. In his bid to get out of the clutches of the provisions contained in Section 12 of the U.P Act No. 13 of 1972, the learned Counsel for the petitioner has attempted to challenge the vires of Sections 3(g), 12(2), 12(4), 25(2) and Explanation I to Section 25(2) of the U.P Act No. 13 of 1972, as well as Rule 10(6) of the Rules framed thereunder. What has been asserted in this regard by the learned Counsel of the petitioner is that the provisions contained in Sections 12(1), 12(2), and 12(4) of the Act are unreasonable and discriminatory and unconstitutional being in violation of Articles 14 and 19 of the Constitution. It has been asserted that the aforesaid provisions restrict the right conferred and recognised and secured under the provisions of the Partnership Act, it has further been asserted that the petitioner had a right to carry on legitimate business in any manner and since the right to carry on business in partnership which stands guaranteed under the constitution and secured under the provisions of the Partnership Act is put in jeopardy on account of the legal fiction contemplated under the provisions of Sections 12(2) and 12(4) and Explanation to Section 25 of the Act, these provisions cannot be sustained as they imposed unreasonable and excessive restriction on the petitioner's fundamental rights guaranteed under Article 19 of the Constitution. It has further been asserted that these provisions are violative of Article 14 of the Constitution as well because of inherent arbitrariness. It has further been asserted that there was no rational basis or intelligible principle for artificially excluding persons from the definition of ‘family’ as contained in the Act which persons are in fact members of the family as understood in the existing social set up in our country and the definition of family contained in Section 3(g) of the Act is violative of Articles 19(1)(g) and 14 of the Constitution. It has further been asserted that Rule 10(6) of the Rules framed under the Act so far as it placed the bar of two years against the persons who are deemed to have ceased to occupy building within the meaning of Section 12 of the Act for becoming eligible for allotment of any building is arbitrary, unconstitutional and irrational and violative of Article 19 of the Constitution.
11. Learned Counsel for the respondents-landlord has asserted that although the U.P Act No. 13 of 1972 is a beneficent piece of legislation and was intended for the benefit of tenants in view of the shortage of housing accommodation in the State yet it amply protected the interests of the landlord as well and the provisions contained in Sections 12 and 25 of the Act are meant for preventing the abuse of the protection afforded to the tenants under the provisions of the Act. It has been asserted by the learned Counsel for the landlord that after the death of Shiv Bux Roy the status of the sons who had succeeded to tenancy rights was that of joint tenants and the nature of the tenancy being that of a joint tenancy, the contravention of the provisions of the Act by any one of the joint tenants was to be deemed to be the contravention by all the joint tenants as one unit and all of them will have to suffer the consequences. It has been asserted that in the circumstances of the case bringing in Swarup Kailash as a partner as evident from the partnership deed on record was sufficient to attract the provisions contained in Section 12(2) of the Act and the entire demised premises was to be deemed to have become vacant so as to be available for release. It has been asserted that the provisions contained in Section 3(g), Section 12 and Section 25 of the Act are constitutional, valid and there is no infirmity in the order passed by the Rent Control and Eviction Officer which could justify any interference by this Court. The prospective allottees have reiterated their stand taken before the respondent No. 1 and have tried to support the impugned order on the reasonings contained therein.
12. The learned Standing Counsel has asserted that then provisions contained in Sections 3(g), 12(2), 12(4), 25(2) and Explanation I to Section 25(2) of the Act which are sought to be challenged on the ground of being unconstitutional do not suffer from any such legal infirmity as alleged.
13. I have given ray anxious thought to the rival contentions raised by the Counsel for the parties and have carefully gone through the evidence and the material on the record.
14. In the cases involving sub-letting it is difficult for the landlord to produce direct evidence in this regard showing the existence of the relationship of tenant-in-chief and the alleged sub-tenant became the matter is specially within their kowledge, therefore, in order to prove sub-letting the landlord has to rely on attending circumstances. It is in this view of the matter that the Legislature has provided for a presumption of fact about coming into existence of sub-tenancy taking recourse to a legal fiction. Once a sub-letting takes place the impediment in the way of the landlord to recover possession stand removed inducing him to go to Court and ask for recovery of possession. The tenant's liability to eviction arises once the fact of unlawful sub-letting is proved.
15. It cannot, however, be overlooked that while the initial onus of proving sub-letting or a transfer of the lease holding is upon the landlord yet once the Court is satisfied that there has been a transfer of possession, the onus may shift and within whose special knowledge the facts explaining the manner in which such possession has been transferred lie, may have to bear the burden thereafter. It is, therefore, clear that when once the parting of possession is proved, the burden shifts to the tenant to show that the alleged sub-tenant is in occupation not as a sub-tenant but only as a licensee or as a person in permissive occupation. The initial onus to prove the ground of eviction, thus, rests on the landlord. But the facts which are in the special knowldge of the tenant must be proved by tenant and the tenant cannot take advantage of the onus of proof to withhold the best evidence in his possession or power to satisfy the Court with regard to the correctness of the case set up by him.
16. On proof of the fact that the tenant has parted with the possession, even in respect of a part of accommodation let out to him and the alleged sub-tenant is in exclusive possession of that portion of the demised premises an inference of sub-letting can be legitimately drawn unless the tenant is able to prove satisfactorily some arrangement between him and the alleged sub-tenant which negatives the inference of sub-letting. Section 25 of the U.P Act No. 13 of 1972 provides as under:—
“25. Prohibition of sub-letting.—(1) No tenant shall sub-let the whole of the building under his tenancy.
(2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building.
Explanation.—For the purposes of this section—
(i) Where the tenant ceases, within the meaning of clause (b) of sub-section (1) of 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.”
17. The explanation contained in Section 25 referred to above contemplates raising of a presumption of fact regarding sub-letting of the demised building either as a whole or in part on the proof of the teanant ceasing to occupy the building or any part thereof within the meaning of the provisions contained in Section 12(1)(b) or Section 12(2) of the Act. The relevant portion of Section 12 of the Act provides as under:—
Section 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 part thereof if:
(a) ………………………………or,
(b) He has allowed it to be occupied by any person who is not a member of his family; or
(c) ……………………………………..
(2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not 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.”
18. The word “occupy” as used in Section 12(1)(b) and Section 12(2) of the Act referred to above is quite significant. This word is a word of uncertain meaning and sometimes denotes legal possession in the technical sense. However, at other times, occupation denotes nothing more than the physical presence in a place for a substantial period of time. Its precise meaning in any particular statute must depend on the purpose for which and the context in which it is used. As observed by the Apex Court, the modern positive approach is to have a purposeful construction that is to effectuate the object purpose of the Act.
19. Under the scheme of U.P Act No. 13 of 1972 the word ‘occupy’ as used in Sections 12(1) and 12(2) of the said Act appears to have been made cannoting different meanings. This word so far as Section 12(1)(b) is concerned denotes physical possession while this word as used in Section 12(2) of the Act denotes legal possession in the technical sense. In order to attract Section 12(1)(b) it has to be established that the tenant has allowed the demised premises or any part thereof to be physically occupied by any person who is not a member of his family and once the fact of the demised premises or any part thereof being physically occupied by a person contemplated under Section 12(1)(b) is established as indicated above the presumption of fact about the sub-tenancy having come into existence becomes available to the landlord by virtue of the legal fiction envisaged under the explanation to Section 25 of the Act.
20. The provisions contained in Section 12(1) of the Act are applicable to both residential as well as non-residential buildings or part thereof. Section 12(2), however, applies only in the case of non-residential building and that too to its entirely and cannot apply to a part of it only. This presumption about the coming into existence of sub-tenancy in respect of the entire demised premises contemplated therein becomes available simply on the landlords establishing that a person who is not a member of the tenant's family has been admitted as a partner or a new partner has been admitted as the case may be. The expression ‘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 used in Section 12(2) of the Act has to be understood taking into consideration the provisions contained in Section 31 of the Indian Partnership Act. The word business is a word of wide import and represents some organised activity. So long as there is some real substantive, systematic and organised course of activity with a set purpose it would constitute business'. Section 31 of the Indian Partnership Act deals with the introduction of a partner and provides that subject to contract between partners and to the provisions of Section 30 no person shall be introduced as a partner into a firm without the consent of all the existing partners. Admission of a partner is nothing else but introduction of a partner. Introduction of a partner as envisaged under Section 31 of the Partnership Act can be in any existing partnership firm. Section 12(2), therefore, contemplates carrying on business in a non-residential building by an existing partnership as envisaged under Section 4 of Partnership Act and admission of a perron, who is not a member of the family of the partners already doing business in that building and occupying the whole of it, as a partner, or a new partner as the case may be as envisaged under Section 31 of Partnership Act. It is in this event alone that the tenant which may include all the partners can be deemed to have ceased to occupy the building as a whole. The Act of introducing admitting a partner as envisaged under Section 12(2) of the U.P Act No. 13 of 1972, as indicated above, is by itself sufficient to render the building on question vacant as a whole with a further presumption in regard to the coming into existence of an illegal sub-tenancy. It cannot be overlooked that the malady of passing over rented premises by a tenant to another person under the garb of forming a partnership with him in violation of the provisions of the Act regulating letting etc., was sought to be remedied by introducing the legal fiction in question.
21. It is, thus obvious that the area of operation of Sections 12(1)(b) and 12(2) of U.P Act No. 13 of 1972 cannot be said to be overlapping and they are mutually exclusive. The assertion of the learned Counsel for the petitioner that in the present case there was neither the requisite pleading nor proof in order to get the benefit of the presumption of fact about coming into existence of sub-tenancy contemplated by the legal fiction envisaged under the explanation to Section 25 of the Act, making out a case attracting Section 12(2) of the Act appears to have some force.
22. There is an other aspect which, cannot be lost sight of in any of the affidavits filed on behalf of either the landlord or the prospective allottee no assertion has been made which may lead to an inference that the sitting tenants had ceased to occupy any portion of the premises in dispute and such portion had been put in actual physical possession of a person who was not a member of the family of the tenant. Even the Rent Control and Eviction Officer has not recorded any such finding of the impugned order. As a matter of fact a perusal of the impugned Order passed by the Rent Control and Eviction Officer shows that he has inferred the creation of subtenancy and raised the presumption of fact of coming into existence of the sub-tenancy on the basis of the fiction of law envisaged under the Explanation to Section 25 of the Act simply on the ground that Swarup Kailash who was not a member of the family of Ganpat Roy or other tenants had been taken as partner in a newly constituted partnership firm in the name and style of B.N Rama and Company (Textiles) with Ganpat Roy, the sitting tenant and his son as the other partners therein. The Rent Control and Eviction Officer had, therefore, proceeded to determine the question of vacancy in respect of the accommodation in dispute taking the present case to be a case not under Section 12(1)(b) of the Act but as a case contemplated under Section 12(2) of the Act. Since neither the prospective allottees nor the landlord had come up with a case of the tenant having ceased to occupy the building in question or a part there of within the meaning of Section 12(1)(b) of the Act as indicated hereinbefore, there could be no justification for proceeding to hold the premises in dispute as vacant even in respect of a part of the demised premises. Since it was not the case of the landlord or the prospective allottees that the petitioners had ceased to occupy the tenanted portion and had left the disputed tenanted portion entirely in the occupation of Swarup Kailash, it was not open to the Rent Control and Eviction Officer to shift the ground of declaration of vacancy to Section 12(1)(b) from Section 12(2) of the Act without affording an opportunity to the petitioners in this regard which opportunity does not appear to have been provided to the sitting tenants/occupants in the present case.
23. Learned Counsel for the petitioner has strenuously contended that the entire proceedings in question stand vitiated on account of commission to adhere to the requirements contemplated under Rule 8 of the Rules framed under the U.P Act No. 13 of 1972 laying down the procedure to be followed while assertaining the vacancy. It has been contended that before notifying a deemed vacancy opportunity should have been given to those who were likely to be adversely affected by the order. It was further asserted that giving of a notice to a tenant in the case of deemed vacancy under the provisions contained in Sec. 12 of the Act was a requirement of an imperative nature. It has further been contended that the requirment that the notice should be given to a person who is likely to be affected by the order cannot be dispensed with by relying upon the principle of absence of prejudice or imputation of certain knowledge to the party against whom action is sought for.
24. Learned Counsel for the landlord and the prospective allottees, however, have asserted that a distinction has to be drawn between a notification of vacancy and a declaration of vacancy. It has been asserted that Rule 8(2) of the Rules require that the conclusion of the report of the Inspector should be notified for information to the general public and an order of allotment could be passed not before the expiration of three days from the date of such publication and if in the meantime any objection is received, not before the disposal of such objection. The publication of the conclusion of the inspection report for information to the general public as contemplated under Rule 8(2) of the Rules is loosely called the notification of a vacancy. This notification of vacancy is at a stage anterior in point of time to the stage of declaration of vacancy. If no objections are received and the conclusion of the inspection report shows that a vacancy did exist, the competent authority could declare the vacancy with the result that the accommodation in question becomes available for allotment or release. However, if objections are received against the conclusions of the inspection report and the Rent Control and Eviction Officer is satisfied after hearing the objections and considering the evidence led before him that the vacancy had not come into existence he may not declare the vacancy and if he comes to the conclusion inspite of a report to the contrary that a vacancy had in fact come into existence he may in that event also declare the premises in question to be vacant. It has been contended that in the present case the sitting tenants had put in appearance in the case before the Rent Control and Eviction Officer between the stage of notification of the vacancy and the declaration of the vacancy in respect of the accommodation in dispute. It has further been contended that the sitting tenants had been afforded full opportunity to contest the claim of the prospective allottee as well as the landlord about the premises in dispute having fallen vacant. In this view of the matter it is contended that no prejudice was caused to the tenant and they having been afforded full opportunity of being heard in the matter they could not be permitted to challenge the proceedings on the ground of want of notice as asserted.
25. A similar question had come up before this Court in the case of Geep Industrial Syndicate Limited v. The Rent Control and Eviction Officer, reported in 1982 (U.P) RCC 592 : 1982 (1) ARC 585 (DB), wherein a Division Bench of this Court observed that the Rules of natural justice must not be stretched too far and if full opportunity had been afforded to an occupant to file objections before allotment, the defect, if any, in following the procedure prescribed under Rule 8 of the Rules framed under the Act will be deemed to have been cured. It was observed by the Division Bench that in case the occupant had full opportunity to put his case that there was no vacancy, the order in question passed in the proceedings could not be held to be invalid on the ground of want of notice. In the order of remand in the present case the Apex Court has observed that the District Magistrate could not be justified in immediately directing the vacancy to be notified in violation of the statutory requirements of Rule 8 depriving the occupant of an opportunity of hearing contemplated under Rule 8(3). The petitioners cannot derive any advantage out of this observation as they had been in fact afforded full opportunity of hearing, in support of their case about the non-existence of the vacancy before the passing of the order dated 18-11-81 wherein the competent authority had declared the premises in dispute to be vacant. In the circumstances of the present case, I am not at all impressed with the submission of the learned Counsel for the petitioner in this regard which is liable to be rejected.
26. Learned Counsel for the petitioner has contended that after the death of Sheo Bux Roy since the accommodation in dispute was a non-residential accommodation, the petitioners who were his heirs became tenants in their own right and their status was that of tenants-in-common and not joint tenants. It has further been contended that the payment of rent by one of them could not deprive the other heirs of their status as tenant. Reliance was placed in this connection on the decision of this Court in the case of Smt. Raj Rani v. Yad Ram, reported in 1977 (2) RCR 185. The learned Counsel for the prospective allottee and the landlord however, contended that even after the successors of Sheo Bux Roy had split up their tenancy for more beneficent enjoyment of the demised premises even, if any one of them in respect of a particular portion occupied by him committed an Act by which he rendered himself liable to be evicted from the premises all will become liable to eviction from the entire premises. In this connection it has further been asserted that if in dealing with their tenancy rights, heirs of deceased tenant Sheo Bux Roy had made some mutual arrangement amongst themselves that could not alter their character of joint tenancy. Learned Counsel for the respondent heavily relied upon in this connection on the observations made in the decision of the Hon'ble Supreme Court in the case of H.C Pandey v. G.C Paul, reported in (1989) 3 SCC 77 : AIR 1989 SC 1470 : 1989 (2) ARC 26 (SC), in paragraph 4 where of it has been observed that it is now well settled that on the death of original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It has further been observed that it is a single tenancy which devolves on the heirs. The Supreme Court in the aforesaid decision has observed that the heirs succeed to the tenancy as joint tenants. It is on the basis that it has been contended that even if the heirs of the original tenant who inherited the tenancy rights split up the tenancy inter-se amongst themselves for the purposes of more beheficial enjoyment of the premises and that may not be objectionable in principle as such an inter se arrangement amongst themselves is not binding on the landlord and the fact as to how the tenants enjoyed the premises is a matter for the co-tenants to decide yet even after the contenants spilt up their tenancy for more benificial enjoyment, if any one of them, in respect of a particular portion of the demised premises occupied by him, commits an act by which he renders himself liable to be evicted from the premises, indeed all will be evicted from the entire premises.
27. Learned Counsellor the contesting respondents has further relied upon the decision of the Apex Court in the case of Smt. Gian Devi Anand v. Jeevan Kumar, reported in (1985) 2 SCC 683 : AIR 1985 SC 796 : 1985 SCFBRC 229 (SC), whereunder it has been held that the termination of the contractual tenancy by the landlord does not bring about a change in the status of the tenant who continues to remain in possession after the termination of the tenancy by virtue of the provisions of the Rent Act and that the heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. The aforesaid decision is of no assistance so far as the controversy raised in the present case is concerned. In the case of Smt. Gian Devi, the Apex Court has not decided the question regarding the status of the heirs of a deceased tenant and has no where held that their status under the law is that of joint tenants.
28. This question, however, specifically game to be considered by the Apex Court in the case of Mohd. Azeem v. District Judge, Aligarh, reported in (1985) 2 SCC 550 : AIR 1985 (SC) 1118 : 1985 (5) ARC 85 (SC), and after elaborately discussing the various provisions contained in the U.P Act No. 13 of 1972, with which we are concerned in the present case, the Hon'ble Supreme Court observed that when the Act defines ‘tenant and family’ reference to personal law is irrelevant and the concept of joint tenancy is foreign. In the aforesaid decision the Apex Court did not approve of the decision of a Full Bench of our Court reported in 1981 ARC 305. The Full Bench had proceeded on the basis that the heirs of the deceased tenant became joint tenants. The Supreme Court observed that the definition does not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy. It was specifically observed by the Apex Court in the aforesaid case that the Full Bench of this Court had fallen into an error in working on the basis of joint tenancy running counter to the scheme under the Act and that the conclusions reached by the Full Bench were wholly unsustainable.
29. So far as the decision in the case of H.C Pandey v. G.C Paul, reported in (1989) 3 SCC 77 : AIR 1989 SC 1470 : 1989 (2) ARC 26 (SC), referred to above is concerned it may be stated that this decision has to be considered in the light of the observations may by the Apex Court in its decision in the case of State of U.P v. Synthetic and Chemical Limited, reported in JT 1991 (3) SC 268, wherein in para 41 it has been observed as below:—
“……………………A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind (Salmond 12th Edition). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., 1941 IKB 675, the Court did not feel bound by earlier decision as it was render ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation Of Delhi v. Gurnam Kaur ., (1989) 1 SCC 101. The Bench held that, precedents sub-silentio and without argument are of no moment.’ The Court thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 …………………………. “…………………………..Any declaration or conclusion…………………………..” preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent…………………………..”
30. What is noticeable in the case of H.C Pandey (supra) is that the conclusion contained in para 4 of the aforesaid judgment is not preceded by reasoning or rationale. Further the fact that the provisions contained in U.P Act No. 13 of 1972 have an overriding effect over the provisions contained in Transfer of Property Act has also not been noticed therein. Moreover the aforesaid case arose out of proceedings under the Old Rent Control Act which had no provision akin to Section 38 of U.P Act No. 13 of 1972. The decision of the Hon'ble Supreme Court in the case of Mohd. Azeem v. District Judge, Aligarh, reported in (1985) 2 SCC 550 : AIR 1985 SC 1118 : 1985 (2) ARC 85 (SC), has to be treated as the law declared by the Supreme Court which is binding on this Court as contemplated under Article 141 of the Constitution of India. There is, therefore, no escape from the conclusion that the status of the heirs of the deceased tenant Sheo Bux Roy cannot be that of joint-tenants but has to be as tenants in common. It is, therefore, obvious that the entire premises in dispute could not be deemed to have fallen vacant as held by the respondent No. 1.
31. In the circumstances of the case, although in view of what has been stated hereinbefore it is not necessary to decide the questions relating to the constitutional validity of the provisions contained in Sections 3(g), 12(1), 12(2), 25 and Rule 10(6) of the U.P Act No. 13 of 1972, yet since in its judgment and order dated 19-3-1985 the Hon'ble Supreme Court has, observed that the aforesaid questions were of such nature that they required to be considered and dealt with by the High Court, I proceed to consider the submissions made by the learned Counsel for the petitioner in this regard.
32. I have heard the Counsel for the petitioner, learned Counsel appearing for the prospective allottees and the landlord as well as the learned Standing Counsel representing the State in the aforesaid matter.
33. While examining the submissions made by the learned Counsel for the petitioner in regard to the above, it has to be kept in mind that every presumption favours the validity of an Act and the doubts, if any, must be resolved in support of the Act. This presumption arises from the fact that the Legislature is pledged to support and uphold the Constitution. These presumptions, however, are not conclusive but throw a heavy burden upon the person who attacks the validity of any statutory provision in an Act lawfully passed to show clearly and convincingly as to how and in what respect the impugned provision of the Act is violative of any constitutional principle. It cannot further be overlooked that a provision contained in an Act of Legislature cannot be struck down merely on the ground that it is more advantageous to one class of persons than to another class unless it is violative of Articles 14 or 19 or other specific provisions of the Constitution.
34. The learned Counsel for the petitioner has challenged the Section 3(g) of the U.P Act No. 13 of 1972, on the ground that there is no rational basis or intelligible principle for artifically excluding persons who are in fact members of the family in the existing social set up from the ambit of the family as contemplated under the Act and has asserted that it is in this dew of the matter that this provision is violative of Articles 19(1)(g) and 14 of the Constitution. The contention raised is that on account of this definition a son-in-law of a tenant who, according to the learned Counsel for the petitioner, is entitled to be treated as a member of the family of the tenant stands deprived of running a business in the non-residential demised premises even if he chooses to do so and the premises is deemed to have fallen vacant resulting in not only his ouster but the ouster of the sitting tenant from the said premises. This according to the learned Counsel is violative of Article 19(1)(g) of the Constitution.
35. The word ‘Family’ is a popular, loose and flexible expression and not a technical term. It is a word of most uncertain import. It can mean many things according to its context. Ordinarily cases of blood relations and consanguinity are covered by the term. The word family is not a word of Part but is a word of common use and is of elastic nature. Broadly speaking it may include a persons' wife or husband the children, parents living with them as members of common house-hold, brothers, sisters constituting a Hindu family widowed daughter or her children, widowed sisters, her children deceased brother's wife, her children all being dependent on and living with him or her.
36. U.P Act No. 13 of 1972 is a beneficient piece of legislation. In order to protect the interest of helpless tenants and preventing the landlord from exploiting the situation for unjustified personal gains it had become imperative for the Legislature to intervene to protect the tenants against harassment and exploitation by avaricious landlords by appropriate legislation which came into being in the shape of the Act in question. While it is no doubt true that the Rent Control Act is essentially meant for the benefit of the tenants at the same time it also seeks to safeguard the legitimate interests of the landlords. The Rent Control Act in question is indeed in the nature of social welfare legislation intended to protect tenants against harassment and exploitation by landlords safeguarding at the same time the legitimate interests of the landlords. The Rent Control Act in question seeks to preserve the social harmony and pronote social justice by safeguarding the interests of the tenants mainly and at the same time protesting the legitimate interest of the landlords. Since the Rent Control Act makes serious encroachment in the freedom of contract and does not permit the landlord to snap his relationship with the tenant merely by his Act of serving a notice to quit on him and inspite of the notice he continues to be a tenant and enjoys all the rights of a lessee which extend to the heirs also, the legislature intervend to restrict the members of the family to whom the protection available under the Act could be extended. Similarly in order to maintain the balance and social harmony the protections available to the landlord under the Act were also regulated by restricting them to the specific persons who could be deemed to fall within the ambit of the term ‘family’. The heritable interest of the heirs of the statutory tenants stand restricted by narrowing down the ambit of the term ‘family’. The legislature has afforded the protections under the Rent Act against eviction, in this manner, to only those who according to its wisdom have been brought within the ambit of the term ‘family’.
37. A perusal of the definition of the term ‘family’ as used in the U.P Act No. 13 of 1972 shows that the quantitative contents of the family as normally understood has been drastically reduced. As observed by the Hon'ble Supreme Court in the case of Bheem Singh Ji v. Union of India, reported in (1981) 1 SCC 166 : AIR 1981 SC 234, in the diversity of Indian Social Structure, the concept of ‘family’ has varied from region to region and even from community to community and we cannot postulate any parameters in this behalf. It has further been observed that nuclear families were becoming the vogue of Indian Urban Life. The Hon'ble Supreme Court went on to observe that fisson, not fusion, is the mordern trend and there is hardly space for a nuclear family to live in urban conditions. To think of large joint families as the natural unit is to resurrect by gone ways of life and turn the blind eye to the rapid growth of the concept of small family in accord with the current life style in urban conditions.
38. I am clearly of the view, that in the circumstances taking into consideration the aims and objects of the U.P Act No. 13 of 1972 and the real purpose sought to be achieved by the enactment in question the impugned provision cannot be held to be arbitrary or such an artificial creation of the statute which can be said to be inconsistent with the natural unit of the family prevalent in the country and cannot be deemed to be suffering from any constitutional invalidity as asserted.
39. In the case of Mohd. Azeem (supra), the Hon'ble Supreme Court had clearly observed that if an Act intended to stablise letting rent and eviction by regulation, the legislative purpose behind Section 12 of the Act appeared to be in keeping with the scheme of the Act making available as much accommodation as possible for allotment to needy persons. This apart, it cannot be overlooked that the provisions contained in Sections 12(1), 12(2) and 12(4) of the Act as well as those contained in Section 25 and the Explanation thereto read together with Rule 10(6) of the Rules framed thereunder also serve the purpose of preventing the abuse of the protections afforded to the landlord as well the tenants under the Scheme of the Act. The legal fiction relating to the deemed vacancy and deemed subletting run side by side. These are aimed to protect not only the interest of the landlord but also that of the tenant in general and provide a sufficient guarantee against the abuse of the privilages granted under the provisions of the Act and to prevent contravention of the provisions contained therein. In the circumstances, even if it be assumed that these provisions have the effect of imposing certain restrictions, these restrictions fall in the category of reasonable restrictions, enforced to secure the object and the purpose of the Act to which a reference has already been made above.
40. I am of the considered opinion that the provisions in question do not suffer from any such constitutional invalidity which may, justify the striking down thereof and the contentions raised by the learned Counsel for the petitioner in this regard are not at all acceptable.
41. In view of the conclusions indicated hereinbefore, I have no hesitation in holding that the approach of the respondent No. 1 to the case stood vitiated on account of errors manifesto the face of the record as well as total misconception of law and it is impossible to approve the same. In the result, the writ petition succeeds. It is hereby allowed and the impugned orders dated 13-8-1981 and 18-11-1981 are quashed. The parties are, however, directed to bear their own costs.
42. Petition allowed.
U.P Act No. 13 of 1972U.P Act No. 13 of 1972