Holding

A premises occupied by a person who is not the tenant nor a member of the tenant’s family, even if rent is paid in the tenant’s name, is deemed vacant under Section 12 of the Act.

Summary

The premises in Rae Bareli were originally let to M/s. Dhacca Swastik Aushadhalaya in 1946-47. The Aushadhalaya ceased operations in 1976, but its employee, Hirday Ranjan Chakraborty, continued to occupy the shop and paid rent in the name of the former tenant. The appellant, brother‑in‑law of the landlords, filed an application under Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act seeking a declaration of deemed vacancy and allotment of the premises. The Rent Controller held that the building was deemed vacant because it was occupied by a person who was not a member of the tenant’s family and not the tenant, and allowed the application. The High Court reversed this finding, treating the occupant as a tenant through the Aushadhalaya. The Supreme Court allowed the appeal, restoring the Rent Controller’s order and holding that deemed vacancy arises even though the premises are not actually vacant, where occupation is by a non‑family person without landlord’s consent.

Issues considered

Whether occupation of premises by an employee of a former tenant, without the landlord's consent, amounts to a 'deemed vacancy' under Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Legislation cited

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 12, s. 14, s. 6

Subjects

deemed vacancyU.P. Urban Buildings Actrent controltenancyoccupancySection 12eviction

Judgment

GIRJA SHANKAR TIWARI AND ANR.
A
v.
HIRD A Y RANJAN CHAKRABORTY AND ANR.

OCTOBER 5, 1988 .

[SABYASACHI MUKHARJI ANDS. RANGANATHAN: JJ.]

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.·
c
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 .employe~ of the same,
respondent No. 1 continued occupying the said premises. He also paid
D rent iu the name of the tenant and not in his own name.

Appellant No. 1 moved an application under section 12 of the U.P.
-Lrban Buildings (Regulation of Letting, Rent and Eviction) Act for
declaring that the premises had fallen vacant an_d for allotment of the
said premises in his favour. Section 12 of the Act provides that where a
E 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
r
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 dismis-
F sed the application. The High Court considered respondent No. I 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,
d
, . 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. 1, 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]
H
426
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•••
'· ~

G.s. TIWARI v. H.K CHAKWORri' 1i>iuKHARJI, 1.1 427

The tenant of the premises in question has long left. An employee A
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 B
Court recognised that the Aushadhalaya was closed in the year 1976.
The High Court commented that the landlord recognised Respondent
No. l 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. I. He never paid any rent. The rent was paid in the
name of the Aushadhalaya by Respondent No. I. [431F-H; 432A]
c
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. l has not said that there was any cha~ge of tenancy. The tenancy
was not in the name of Respondent No. I. The premises, indubitably,
was in the name of the Aushadhalaya. It was not in occupation or D
possession of the Aushadhalaya, its proprietors or partners, and at the
relevant time Respondent No. I 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, indubit-
ably, was occupied by the person other than the tenant without his
consent but perhaps with the knowledge of the landlord. [432B-D] E

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3732
of i988.

From the Judgment and Order dated 15.2.1988 of the Allahabad
High Court in Writ Petition No. 3310 of 1983. F

R.K. Jain, .R.B. Mehrotra and Pradeep Mishra for the Appel-
)
lants.
j
G .C. Mathur and K.P. Gupta for the Respondents.
G
The Judgment of the Court was delivered by
tll
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 H
428 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

Court of Allahabad, Lucknow Bench, dated 15th February, 1988. It
A 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 pre-
sent are S/Sh. Anand Kumar Agnihotri and Raj Kumar Agnihotri,
B 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-Jaw of the said landlords of the premises in
c 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 sho.uld be
declared to be vacant and! also applied for allotment of the said pre-
mises in his favour.
D l.
The Rent Controller held that the shop was vacant. As
mentioned hereinbefore, the proceedings startedon an application
which was moved by the appellant under Section 12 of the U .P. Urban
Buildings (Regulation of Letting, Rent & Eviction) Aci, .1972,
hereinafter called the Act, for allotment of the premises on the ground
E floor on the ground that the premises had fallen vacant. The Inspec.tor
(Rent) made a local inspection and found that the respondent was
residing on the first floor whereas ori the ground: floor certain
medicines were found and tlie 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 pefore
F 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
c; (hereinafter called 'the Aushadhalaya'), in the year 1946 or 1947. The
Aushadhalaya was no longer in existence and the service of the pro-
ceedings 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
H at the inception. The business, however, was closed in the year 1976
~/'.''/.Tc' ',i ',"~'~
~'
*
'ii
G.S. TIWARI v. H.R. CHAKRABORTY [MUKHARJI, J.] 429

"" and the respondent was carrying on his own business. The Rent Con-
troller found that the tenant was not in occupation and the tenant, the A
Aushdhalaya, nor its proprietor. The present respondent was not the
tenant butlh.e 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 B
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 respon-
dent in the name of the Dhacca Swastik Aushadhalaya, but the pre-
mises was being occupied by the person other than the tenant.

Section 12 of the Act provides for deemed vacancy, which is as
follows: c
"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-
D
(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- E
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.ofnis famiiy as a partner or a new partner, as F
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 otherw;se acquires in a
vacant state or gets vacated a re~illential building in the G
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 com- . H
430 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A mencement of this Act, then such_ tenant shall be deemed
to have cea_sec_l 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-
B
(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
c 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
0, 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 accom-
E modation (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.

F (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 I
in any other city, municipality, notified area or town area
G 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.

H (4) Any _!J_uilding or part which a landlord or tenant has
G.S. 1TIWARI v. H.R. CHAKRABORTY [MUKHARJI. J.] 431 -~·

ceased to occupy within the meaning of.sub-section ( 1), or
A
sub-section (2), or sub-section (3), sub-section (3A), or
sub_-section (3-B) shall,for tile pu~poses 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 B
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
c
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 w.ho is not a member of his family, then D
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 it is occupied
by Hirday Ranjan Chakraborty, who was not the tenant at any rele-
vant time. In our opinion, the deemed vacancy of the premises though E
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 of the
Aushdhalaya and the rent that was being paid and credited all along in
the name of the Aushdhalaya to be treated as the rent on behalf of
Hirday Ranjan Chakraborty. f
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 pre.mises, 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 G
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 Au~hdhalaya 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_, j-1
432 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A 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
B · 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 Ran jan Chakraborty did not claim or purported
C 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 a person other than the tenant
without his consent but perhaps with the knowledge of the landlord.
t
D In those circumstances, in our opinion, the High Court was not I
right. The Rent Controller in his order had held that Hirday Ranjan I

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.
E
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 applica-
tion, and the same is accordingly dismissed.

H.S.K. Appeal allowed.

i