judgement:
ivil Appeal No. 2468 of 1982.
From the Judgment and Order dated 8.3.1982 of the High Court of Andhra Pradesh in C.R.P. Nos. 3726, 3727, 3910 and 4883 of 1979.
PG NO 202 Dr. Y.S. Chitale and G. Narasimhulu for the Appellant.
T.S. Krishnamurti Iyer, Krishan Kumar and Rajeshwar Rao for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by special leave by a tenant arises out of a common judgment rendered by the High Court of Andhra Pradesh in four Civil Writ Petitions.
Two of the Revision Petitions were filed by the appellant herein and the other two were filed by one Narsimha Murthy, the second respondent herein.
By a common judgment the High Court d_missed all the four revision Petitions.
While Narsimha Murthy has not preferred any appeal the appellant has filed this appeal by special leave to question the legality and propriety of the decree for eviction passed against him on the ground he had unauthorisedly sublet the leased premises to the second respondent for running a hotel.
Originally the building bearing door nos.
7 2 606, 607, 617 and 618 (old door No. 2540) Rashtrapati Road, Secunderabad belonged to one Bhima Rao.
The appellant took the ground floor of the premises on lease in the year 1953 from the said Bhima Rao on a monthly rent of Rs.250 for running a hotel in the name and style of Sharada Bhavan.
In or about September 1967 Bhima Rao conveyed the premises by means of a Deed of Gift to his daughter Manga Devi, the first respondent herein and the appellant duly attorned his tenancy and was paying her the rent.
After August l969 the hotel came to be run by the second respondent instead of the appellant.
As the first respondent had reasons to believe that the appellant had either transferred his rights under the lease or sublet the leased premises to the second respondent, she terminated the tenancy by means of notice with effect from 31st January, l97 l and called upon the appellant to surrender possession thereafter.
The appellant refused to vacate and sent a reply refuting the allegations contained in the notice issued to him.
This led to the first respondent filing a petition under Section 10 of the Andhra Pradesh Buildings (Lease.
Rent and Eviction) Control Act.
1960 (for short the Act ' hereafter) to seek the eviction of the appellant and the second respondent on three grounds viz. (1) wilful default in payment of rent, (2) unauthorised subletting and (3) causing waste to the property.
The Rent Controller ordered eviction on the second and third grounds.
The appellant and the second respondent preferred seperate appeals to the Appellate Authority and both the appeals were dismissed.
Thereafter the two affected parties filed two PG NO 203 revisions each against the dismissal of the appeals and the High Court clubbed all the four revisions and rendered a common judgment dismissing all the revision petitions.
The High Court, however, affirmed the finding of the courts below only on the ground of sub letting and consequently, the sole question for consideration in this appeal is whether the High Court has erred in law in upholding the order for eviction passed by the first two Courts on the ground of sub letting.
Dr. Chitale, learned counsel for the appellant took us through the terms of the agreement Exhibit R 14 entered into between the appellant and the second respondent as well as the relevant portions of the judgments of the Courts below and the High Court and argued that this was a case where the appellant had only transferred the managing rights of the hotel to the second respondent and hence there was no basis or material for the Rent Controller or the Appellate Court to hold that the appellant had sublet the leased premises to the second respondent and therefore the High Court too was in error in confirming the order of eviction passed against the appellant and the second respondent.
The learned counsel further contended that neither the agreement nor the conduct of the parties afforded any ground for taking the view that the appellant had transferred his rights under the lease or had sublet the premises to the second respondent, and on the other hand there was adequate material to show that the appellant had retained his rights in the leased premises notwithstanding his placing the hotel business in the hands of the second respondent.
To substantiate these contentions Dr. Chitale laid stress on certain clauses in the agreement which seek to emphasise that the transfer of rights pertained to the business alone and not the leasehold rights of the appellant in the leased premises.
The clauses referred to are as follows.
Clause 2 sets out that the first party (the appellant) 'has agreed to allow the second party (the second respondent) to manage the said Sharada Bhawan with all the furniture etc.".
Clause 7 interdicts the second party from permitting "the use of the premises for any purpose other than that for which it is being used viz. as a vegetarian restaurant" without the consent in writing of the first party.
Clause 8 enjoins the second party to "maintain the standard and reputation which the said business has earned and acquired".
Clause 9 prohibits the second party from assigning or underletting or otherwise parting with the business without the permission in writing of the first party.
Clause 11 stipulates that the second party shall observe all the rules and regulations governing the licences granted to the first party by the Municipality, Police etc.
and further sets out that if any breach is committed by the PG NO 204 second party he should indemnify the first party.
Under Clause 13 the first party has reserved a right to inspect the business at all reasonable times to satisfy himself that The second party was fulfilling the conditions set out in the agreement.
Clause 15 provides that on the expiry of the agreement the second party should "peacefully and quietly surrender and hand over possession of the business to the first party together with all the furniture, fixtures, utensils etc.
" Clauses 16 and 17 are of significance for both parties and, therefore, they are extracted in full: "Clause 16 The lease of the premises wherein the said business is being run, shall continue to be enjoyed exclusively by the first party at all times, and first party shall be liable to pay the monthly rent of Rs.250 or any other enhanced rent that may be Agreed upon between the first party and the landlord and in such event the second party shall pay to the first party the difference between the present rent of Rs.250 and the enhanced rent along with the monthly amounts payable vide clause (2) hereof, and shall observe faithfully all terms and conditions of the agreement of tenancy between the first party and the owner of the premises.
It is clearly understood and agreed this agreement is only with respect to the running of the said business on a "MUNAFA" basis to the second party and not subletting or underletting of the premises housing the said business.
Clause 17 The essence of this agreement is that the second party shall run the said business on his own account making use of the existing property such as furniture, fixture, etc.
which continue to belong to the first party with out any proprietory rights or interest to the second party on any of the said property.
It is distinctly understood and agreed between the parties here to that the second party shall not be entitled to obtain any credit or accommodation from any third party on the security of the said business.
The parties hereto agree that the second party shall carry on the said business on his own account and responsibility and the first party shall not be liable in any manner or to any extent in respect of the second party 's liabilities arising out of his running the said business or otherwise.
" Placing reliance on these clauses it was seriously canvassed on behalf of the appellant that the agreement was PG NO 205 explicit in its terms and there was no ambiguity and as per the terms the transfer effected was only the business of running the hotel and not the appellant 's interest in the leased property and no sub tenancy was created in favour of the second respondent.
The appellant 's counsel urged that in almost identical circumstances this Court has held in Md. Salim vs Md. Ali, ; that the transfer effected was only the right to manage the business run by the lessee and there was no transfer of any interest of the lessee in the business premises.
It was the further contention of Dr. Chitale that in all such cases the Courts must look to the dominant intention of the parties while effecting the transfer to find out whether the transfer amounted to a sub letting of the leased premises.
A reference was made to the decision in Dwarka Prasad vs Dwarka Das Saraf; [ 19761 1 SCR 277 in this behalf.
Disputing the contentions of Dr.
Chitale Mr. Krishnamurthy Iyer, learned counsel appearing for the first respondent, stated that the intention of the parties and the true nature of the transaction between them was the handing over of the hotel on a permanent basis to the second respondent together with the tenancy rights of the appellant.
Mr. Iyer said that for obvious reasons the parties had to camouflage the real nature of the transaction, by making it appear that the managing rights of the business alone were transferred but the truth could not be suppressed and hence the lower courts had rightly held that the transfer had all the trappings of sub letting and the appellant was therefore liable for eviction.
It was urged that in view of the concurrent findings rendered against the appellant by the Rent Controller and the Appellate Authority, the High Court could have very well declined to go into the merits of the findings without reappraisal of the evidence but even so the High Court had given the appellant the indulgence of a detailed examination of the evidence for itself and has after such exercise confirmed the findings of the Courts below and as such, there is no need or justification for any further examination the contentions of the appellant.
The learned counsel submitted that if nevertheless the case of the appellant has to be considered once ever again, then the agreement.
though subtly worded, provided adequate material to show that the transfer of the business had brought about a subletting of the premises also.
The manner in which the hotel had been run by the second respondent, it was added, afforded additional material to prove the factum of sub letting of the premises.
Krishnamurthy Iyer drew our attention to several terms in the agreement, to which we PG NO 206 shall advert to in due course, to substantiate his contentions.
The learned counsel also placed for our consideration a decision of Alagiriswamy, J., as he then was, in M. Rodgers vs Prakash Rao Naidu, and of this court in Bhagwan Das vs Rajeev Singh, Since both the parties lay emphasis upon the terms of the agreement to support their respective contentions, it is necessary that we look into the terms of the agreement for ourselves.
The preamble sets out that the terms "first party" and "second party", cannoting the appellant and the second respondent, will wherever the context permits include their heirs, successors, administrators and assigns.
The agreement would say that the first party, as the owner of the vegetarian restaurant "Sharada Bhawan" has agreed to allow the second party to manage the said hotel with all the furniture etc.
The agreement is for a period of eleven months from the 1st day of September 1969 and thereafter the same could be renewed or extended for any further period by mutual consent except in the event of the first party being evicted, in which event the second party would not be entitled to any compensation for any loss or damage caused to him by reason of the eviction.
Clause 2 provides that "in consideration of obtaining on hire on munafa basis of the business together with all the furniture etc.
the second party should pay to the first party a sum of Rs.750 per month during the period of first eleven months and thereafter at the rate of Rs.900 per month during the subsequent renewed or extended period.
" As per Clause 3 the second party should pay all taxes, tees, rates and other statutory outgoings in respect of the business and ii any loss is caused to the first party by non payment, the latter was entitled to recover all such charges from the second party and would also be entitled to cancel or terminate the agreement forthwith.
According to Clause 4 the second party was responsible for not only payment of all expenses and charges relating to the running of the business but also for carrying out "repairs to business premises, painting, colour wash.
and the like".
The same Clause empowers the second party to appoint, dismiss, promote or otherwise deal with all members of the staff and employees of all categories ' ' and makes him liable for all claims and demands relating to the period covered by the agreement. ' Clause 7 prohibits the second party from using the premises for any purpose other than for running a vegetarian restaurant without the consent of the first party.
Clause 9 interdicts the second party from assigning or under letting or otherwise parting with the business without the written permission of the first party.
Clause 13 stipulates that the second party should allow the first party to inspect the business at all reasonable times to satisfy himself that the PG NO 207 second party was fulfilling the conditions governing the agreement.
Clause 15 sets out that "the second party shall on the expiry of the agreement peacefully and quietly surrender and hand over possession of the said business to the first party with all the furniture and fixtures, utensils, etc.
" Clause 16 which has already been extracted states that the lease of the premises shall continue to be enjoyed exclusively by the first party at all times, and the first party shall be liable to pay the monthly rent of Rs.250 or any other enhanced rate that may be agreed upon between the first party and the landlord and in such an event the second party shall pay to the first party the difference between the present rent of Rs.250 and the enhance rent along with the monthly amounts payable by him.
There is an explanatory clause stating that the agreement is only with respect to the running of the business and not to any subletting or underletting of the premises.
Clause 17 stipulates that the business was to be run by the second party on his own account making use of the existing property such as furniture, fixture etc.
belonging to the first party without any proprietory rights or interest and that the second party was not entitled to obtain any credit or accommodation from any third party on the security of the business and that he was to run the business on his own account and responsibility.
Clause 18 makes the second respondent solely responsible for any consequences arising out of non compliance with the orders passed by the competent authorities or for contravention of any of the provisions of the laws in force Clauses 19 and 20 provide for the second respondent furnishing a cash security of Rs.5000 and the first respondent being entitled to reimburse himself from out of the deposit amount any loss or damages suffered by him on account of any default committed by the second party On a reading of the various provisions of the agreement unable to accept the contentions of the appellant that what was transferred was only the hotel business and not the appellant 's interest in the leased premises as a lessee.
Though the agreement is initially for a period of 11 months the renewal clause would enable the parties to go on extending the lease for any length of time and as per the preamble such extensions of lease would be binding upon the heirs, successors, administrators and assigns of both parties.
The appellant had handed over the furniture, utensils etc.
to the second respondent and received a sum of Rs.5,000 as security and he was entitled to reimburse himself for any loss or damage caused to the furniture and the utensils.
Though the agreement states that the appellant will continue to be the lessee of the property it is obvious that the rent of Rs.250 per month was really to be paid by PG NO 208 the second respondent through the appellant.
There is a specific provision in Clause 16 that in the event of the landlord enhancing the rent, the second respondent should pay "the difference between the present rent of Rs.250 and the enhanced rent along with the monthly amounts payable as per clause 2.
" It is therefore patent that the burden of paying the rent has been passed on to the second respondent and this can occur only if the premises had been sublet to him.
The agreement confers proprietory rights on the second respondent over the hotel business inasmuch as he is made the sole authority to appoint the staff as well as terminate their services and also take disciplinary action against them.
He is empowered to run the business on his own account and responsibility so long as he pays the appellant a sum of Rs.750 per month or the first eleven months and thereafter a sum of Rs.900 per month All the taxes, fees, rates and other statutory outgoings are to be paid by the second respondent himself.
Even the cost of effecting repairs to the business premises and painting and colour washing etc.
are to be borne by him alone.
Clauses 7 and although appearing to interdict the second respondent from changing the user of the premises or from assigning or subletting the business, really permit him to do so, if he obtains the consent or permission in writing of the appellant.
If what was transferred to the second respondent was only the right to manage the hotel business, it is incomprehensible that he would be called upon to effect repairs to the leased premises or to undertake painting, colour washing etc.
at his own expense.
Similarly the question of the second respondent changing the user of the premises or assigning or subletting or parting with the business with the written consent or the appellant will not arise if his rights under the agreement were restricted to the management of the business alone.
Clause 15 is curiously worded because it speaks about the second respondent peacefully and quietly surrendering and handing over possession of the business to the first party with all the furniture, fixtures, utensils etc. ' ' The clause would show that what was really meant was surrendering the possession of the building but in order to conceal matters, the word 'business has been used in the place of 'building '.
On a conspectus of all the terms of the agreement we feel that the High Court was fully justified in taking the view that the appellant and the second respondent had used all the ingenuity at their command to camaflouge the real nature of the transaction and make it appear that there was only a transfer of the managing rights of the business and not a transfer of the business in toto together with the right to occupy the leased premises The clauses on which the appellant 's counsel placed reliance to project the PG NO 209 appellant 's case are only make believe clauses which have been introduced with a design and purpose viz. to conceal the real nature of the contract so that the landlord may not seek the eviction of the appellant on the ground of subletting the premises.
In spite of the introduction of a few cleverly worded clauses the other clauses are self revealing and go to show that the parties were fully aware of the vulnerability of their action and the risk of eviction ensuing therefrom.
It is on account of such awareness the appellant has carefully provided in the agreement that in the event of his being evicted from the premises he will not be liable to pay any compensation for any loss or damage resulting to the second respondent.
Besides the agreement, the manner in which the second respondent had been conducting the business would also show that he was not a transferee of the managing rights alone but he was a transferee of the business together with the appellant 's interest in the leased premises also.
The business turnover increased from Rs.200 to 250 per day to Rs.700 to 800 per day.
The second respondent was assessed to income tax and sales tax in his own name as the proprietor of Sharada Bhawan and not as the manager of the hotel.
He was recognised as the proprietor of the hotel and admitted to membership of the Hotel Owner 's Association.
He exercised absolute control over the business and over the members of the staff and was the sole authority to appoint them or terminate their services or take disciplinary action against them.
He was not bound to render accounts to the appellant or share with him the profits or losses of the business.
He became solely responsible to bear all the expenses and to pay all the taxes, public charges etc.
Thus even the conduct of the parties afford material to conclude that what was transferred to the second respondent was much more than the right to run the hotel business for a limited period.
It is therefore futile for the appellant to say he had not parted with his interests in the leased premises to the second respondent.
As regards the decisions cited by Dr. Chitale we do not think that either of them can advance the appellant s case m any manner.
In Md. Salim vs Md. Ali (supra) the facts were perceptibly different.
That was also a case where the right of management of a shop run by a tenant was conferred on one Md. Salim and it was agreed between the parties that from out of the amount paid by Md. Salim, the lessee was to pay the rent to the landlord.
The agreement, however, expressly stated that the transferer will remain the proprietor of the business, and that the licence for the business should stand in his name and that after a period of two years the transferee will restore the business along with the articles PG NO 210 in good condition to the transferor.
The transfer agreement had been attested by the landlord himself.
It was on these facts it was decided in that case that there was no transfer of interest in the business premises and what was transferred was only the right to manage the business.
In the present case the agreement provides for the second respondent being allowed to run the business for any length of time as his own proprietory concern and to have all the benefits exclusively for himself.
In the other case of Dwarka Prasad (supra) the court dealt with the application of the ' dominant intention" test with reference to the facts of that case.
The question in there was whether a cinema theatre equipped with projectors and other fittings and ready to be launched as an entertainment house was "accommodation", as defined in Section 2(1)(d) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, and if so, whether the Act "barricades eviction by the landlord because the premises let constitutes an accommodation" It was in that context the Court observed that where the lease is composite and has a plurality of purpose the decisive test is a dominant purpose of the demise.
There is no occasion in this case for the test of 'dominant intention being applied because there was and there can be no lease of the managing rights of the hotel business as such and on the contrary what was transferred was an outright transfer of the hotel together with the furniture, equipment etc.
as well as the lease hold right of the erstwhile hotelier in the leased premises.
The facts of this case bear a close similarity to the facts noticed in Bhagwan Das v .S.
Rajdev Singh, (supra) That was a case where the premises let out to one Usha Sales was put under the occupation of one Bhagwan Das and when the landlord sought the eviction of the tenant on the ground of sub letting the plea raised was that Bhagwan Das had been appointed as an agent by Usha Sales for displaying and selling the protect o Usha Sales and Bhagwan Das was in the occupation of the premises on his own behalf for the purposes of his business as an agent.
The Court after perusing the agreement entered into between Usha Sale and Bhagwan Das held that the appellant was given complete control and supervision of the premises, and that the agreement was a curious mixture of inconsistencies and was plainly a clumsy attempt to camouflage the sub tenancy which was intended to be created thereby.
The facts of the present nt case, have a striking similarity to the facts noticed in that case and.
therefore, the same conclusion should be reached in this case also.
Besides the above said decision Mr. Iyer referred us to a decision of the Madras High Court in M. Rodgers vs N. Prakash Rao Naidu.
(supra) where a tenant who was running a printing press in a leased building stopped the business and the manager began running the press as the lessee of the machinery without the tenant having any PG NO 211 share in the business.
On the landlord sueing the tenant for eviction on the ground of subletting, the High Court held that since the machinery cannot be run unless it is placed in the premises where it is situated, the lessee of the machinery would get the advantage of the use of the business premises also and as such the lease amount stipulated for the lease of the machinery would also include the lease amount payable for the building and hence the transaction would clearly amount to the lessee subletting the building simultaneously with the leasing out of the machinery.
The present case warrants the same view being taken especially in the light of the recitals in the agreement which stipulate that the amount payable by the second respondent would comprise in it the rent payable by the appellant landlord for the leased premises.
At the end of the arguments it was represented at the bar that the second respondent has since vacated the premises and handed over the business to the appellant and that the appellant himself is now running the hotel through his son.
We do not think the changed circumstances can affect the rights of the first respondent in any manner to have the appellant evicted on the ground of subletting.
In the light of our conclusions, the appeal fails and is dismissed.
However, having regard to the fact that the appellant would require some time to find an alternate place to shift his hotel, he is granted six month 's time from today to vacate the premises subject to his filing an undertaking within four weeks from today on the usual terms.
There will be no order as to costs.
R.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant had taken the demised premises on lease in 1953 for running a hotel.
In August 1969 the hotel came to be run by the second respondent.
Thereupon, the landlady Ist respondent terminated the tenancy as she had reasons to believe that the appellant had either transferred his rights under the lease or sublet the premises.
On the appellant refusing to vacate, the first respondent filed petition under section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 seeking eviction on the ground of sub letting.
The Rent Controller ordered eviction.
The appeals before the Appellate Authority failed.
The High Court, in revision, affirmed the finding of sub letting.
Before this Court, it was contended on the basis of the terms of the agreement entered into between the appellant and the second respondent, that the appellant transferred only the management rights of the hotel and had retained his rights under the lease.
It was urged that the courts must look at the dominant intention of the parties.
On the other hand, the first respondent contended that the true nature of the transaction was the handing over of the hotel on a permanent basis together with the tenancy rights of the appellant.
Dismissing the appeal, it was, HELD: (I) On a conspectus of all the terms of the agreement the High Court was fully justified in taking the view that the appellant and the second respondent had used all the ingenuity at their command to camouflage the real nature of the transaction and made it appear that there was only a transfer of the managing rights of the business and PG NO 200 PG NO 201 not a transfer of the business in toto together with the right to occupy the leased premises.
[208G H] (2) It was patent that the burden of paying the rent had been passed on to the second respondent and this could occur only if the premises had been sublet to him.
[208B] (3) Though the agreement was initially for 11 months, the renewal clause would enable its extension for any length of time which was binding upon the heirs, successors, and assigns of the parties.[207G] (4) The agreement conferred proprietary rights on the second respondent over the hotel business inasmuch as he was made the sole authority to appoint the staff as well as terminate their services and empowered him to run the business on his own account and responsibility.
[208B C] (5) Besides the agreement, the manner in which the second respondent had been conducting the business would also show that he was not a transfer of the managing rights alone but was a transfer of the business together with the appellant s interest in the leased premises also.
[209C] Dwarka Prasad vs Dwarka Das Barar, 11976] I SCR 277; Md. Salim vs Md. Ali, ; , distinguished.
M. Rodgers vs N. Prakash Rao Naidu, 11969] I MLJ 352 and Bhagwan Das vs section Rajeev Singh, , referred to.
(6) At the end of the arguments in the case it was represented at the Bar that the second respondent has since vacated the premises and handed over the business to the appellant and hat the appellant himself was now running the hotel through his son.
The changed circumstances could not, in the Court s opinion, affect the rights of the first respondent in any manner to have the appellant evicted on the ground of subletting.
[211C D]


judgement:
Special Leave Petition (Civil) No. 6577 of 1988.
From the Judgment and order dated 27.4.1988 of the High Court of Allahabad in C.M.W. No. 3777 of 1987.
G.L. Sanghi and Manoj Prasad for the Petitioner.
PG NO 278 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This application for leave to appeal under Article 136 of the Constitution arises from the judgment and order of the High Court of Allahabad, dated 27th April, 1988 by the judgment under challenge the Division Bench by majority directed the Addl.
City Magistrate or the Officer at present exercising the power of Distt.
Magistrate under Rule 10(9) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Rules 1972 to issue notice on all the five landlords mentioned in the petition within one week of the filing of the certified copy of the Order, and thereafter to make an Order in accordance with law and in the light of the observations made in the said Judgment.
The petitioner before the High Court, who is the petitioner herein also, was directed not to be dispossessed until disposal of the matter by the High Court.
This application is by the tenant petitioner.
The premises in question had five co owners, namely, Veeresh Saxena, R.C. Saxena.
D.C. Saxena, Smt.
Shanti Saxena and B.S. Saxena, respondent No. 3.
Until January, 1978, Veeresh Saxena was in sole and exclusive actual physical possession of the shop and carried on business in it.
In January, 1978 the present petitioner filed allotment application for the shop and he was the sole applicant.
On 28.1.1978, Veeresh Saxena vacated the shop and sent intimation of vacancy to the Rent Control Officer under the U.P. Urban Buildings (Regulation of Letting & Eviction) Act, 1972 (hereinafter called the Act).
The Rent Control Officer, then, directed him to appear in the allotment proceedings The Inspector reported that Veeresh Saxena was found to be in possession of the shop, discontinuing the business and was going to let out the shop.
On the Inspector 's report being pasted on the Notice Board of the Rent Controller Office, neither B.S. Saxena nor the other 3 co owners filed any objection.
Veeresh Saxena filed an affidavit before the Rent Control Officer that he wanted to let out the shop to the petitioner.
The 3 other co owners never objected to the petitioner`s tenancy on the allotment order throughout the last 10 years.
The allotment letter was accordingly passed on 12th February, 1978.
The possession was, thereafter, taken up, it was alleged by the petitioner in the special leave petition.
The petitioner had alleged that he had invested more than Rs.2 lakhs in the shop, but B.S. Saxena.
who was a non occupant owner, on or about 25th February, 1978 filed an application under section 16(5) of the Act, after 25 days of allotment, for review of the Order.
It was alleged by the petitioner that the evidence was overwhelmingly in support of the fact that he had taken PG NO 279 possession of the premises on or about 4/5th February, 1978.
The Rent Controller, however, on the said application of B.S. Saxena allowed the review application and cancelled the allotment order.
revision against the said order was filed before the learned Judge under section 18 of the Act.
The learned Addl.
Distt.
Judge dismissed the revision.
The petitioner, thereafter, filed a writ petition in the High Court of Allahabad .
The question arose about the maintainability of the review application under section 16(5) of the Act.
It is upon this point that the matter has been agitated before us.
There was a difference of opinion about the maintainability of the review application at the instance of a non occupant owner and the matter was referred to a Bench of 3 learned Judges and by majority the Division Bench came to the conclusion that such an application was maintainable.
The petitioner herein contends that the High Court was wrong in the view it took on the construction of Section 16(5)(b) of the Act.
The relevant provisions of the said sub section read as follow: "(5)(a) Where the landlord or any other person claiming to be lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with clause (a) or clause (b) as the case may be of sub section (I), the District Magistrate may review the order: Provided 1hat no application under this clause shall be entertained later than seven days after the eviction of such person .
(b) Where the District Magistrate on review under this sub section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted, back into possession of the building, and may for that purpose use or cause to be used such force as may be necessary.
(6) x x x (7) Every order under this section shall subJect to any order made under sec.
18 be final.
" PG NO 280 The contention is that a landlord who was not in actual physical possession until making of the allotment order or is evicted in pursuant thereof, is not competent to make an application for review of the allotment order or release order under section 16(5)(a) & (b) of the Act.
Admittedly, as mentioned hereinbefore, the respondent applicant was not in occupation when the Order was made.
He was, however, indisputably a landlord.
So, the question is whether on the construction of the section, a landlord who Is not in actual physical possession at the time of the release order, is entitled under the law to apply for review of the order.
The High Court held that he is entitled.
We are of the opinion that the High Court was right.
Section 16(5)(a) speaks of 'where the landlord or any other person '.
Hence,there are two categories of persons contemplated i.e. a landlord, or any other person.
The requirement of sub section, to be in lawful occupation of the building or any part thereof, applies Only in case of Lany other person claiming to be in lawful occupation and not in case of landlord.
The Section has used the expression ' or" and so the expression or is disjunctive of these two categories to be treated separately.
Hence, the requirement to be in lawful occupation.
is not there in case of an application by the landlord.
Mr. G.L. Sanghi, learned counsel appearing for the tenant, has sought to argue that by virtue of the proviso a landlord who was not in occupation, was not entitled to apply.
We are unable to accept this.
The proviso puts an embargo of 7 days in making the application for review.
It can only apply to those who were in lawful occuaption at the time of the making of the original Order.
It cannot curtail the rights of the landlord, as such, it only affects any other person who was lawful occupation.
In any event, it is a well settled principle of construction that unless clearly indicated, a proviso would not away substantive rights given by the Section or the sub section.
A land lord has a right to the property.
The Section should not be construed as to defeat the right to possession of property in appropriate cases unless the intention of the Legislature is manifest We find no such clear intention in the facts of this case.
We are, therefore,.
of the opinion that the High Court came to the correct conclusion that a landlord, even though not in actual physical possession at the time of the possession of the property.
call ask for review of the order of release or allotment.
It must be borne in mind that this view was also expressed by Mr. Justice N.D.Ojha, as our learned brother then was, in his judgment in Niren Kumar Das vs The District Judge, Pilibhit & Ors., AIR 1977 Allahabad PG NO 281 47.
We agree with that interpretation.
In that view of the matter, there is no substance in the contentions urged in the specil leave petition.
The application is, therefore,rejected.
N.V.K. Petition dismissed.

summary/full:
The petitioner in the Special Leave Petition is the tenant, Respondent No. 3 was one of the five co owners of the petition premises.
On January 28, 1978, one of the co owners who had sole possession of the shop vacated the shop and sent intimation of the vacancy to the Rent Controller under the U.P. Urban Buildings (Regulation of Letting and Eviction) Act, 1972.
The petitioner filed allotment application for the said shop and he was the sole applicant.
The Rent Control Officer directed the petitioner to appear in the allotment proceedings, called for a report from the Inspector, found one of the co owners to he in possession of the shop and that he had discontinued the business and was going to let out the shop.
The 3 other co owners never objected to the petitioner 's tenancy on the allotment order.
The allotment letter was accordingly passed on 12th February.1978, and possession was taken up by the petitioner thereafter.
On or about 25th February, 1978 the 3rd respondent who was a non occupant owner filed an application under section 16(5) of the Act i.e. after 25 days of the allotment, for review of the order.
The Rent Controller allowed the review application and cancelled the allotment order.
The Additional District Judge having dismissed the revision petition, the petitioner filed a writ petition in the High Court.
The question about the maintainability of the review application under section 16(5) of the Act at the instance PG NO 276 PG NO 277 of a non occupant owner having arisen the matter was referred to a Full Bench and by a majority, the Bench came to the conclusion that such an application was maintainable.
Dismissing the Special Leave Petition, HELD: 1.
A landlord, even though not in actual possession at the time of the possession of the property, can ask for review of the order of release or allotment.
[280G] 2.
A landlord has a right to the property.
The section should not be so construed as to defeat the right to possession of property in appropriate cases unless the intention of the Legislature is manifest.
[280F] 3.
Section 16(5)(a) speaks of 'where the landlord or any other person '.
Hence, two categories of persons are contemplated i.e. a land lord, or any other person.
[280C] 4.
The requirement of the sub section, to be in lawful occupation of the building or any part thereof, applies only in case of any other person claiming to be in lawful occupation and not in case of landlord.
The Section has used the expression "or" and so the expression "or" is disjunctive of these two categories to be treated separately.
Hence, the requirement to be in lawful occupation, is not there is case of an application by the landlord.
[280C D] 5.
The proviso puts an embargo of 7 days in making the application for review.
It can only apply to those who were in lawful occupation at the time of the making of the original Order.
It cannot curtail the rights of the landlord.
as such, it only affects any other person who was in lawful occupation.
[280E G] Niren Kumar Das vs 7he District Judge, Pilibhit & Ors.
AIR 1977 Allahabad 47, approved.


judgement:
ivil Appeal No. 977 of 1976.
From the Judgment and Order dated 8.3.1976 of the Guwahati High Court in Civil Rule No. 261 of 1973.
D.N Mukherjee, N.R. Choudhary and Ranjan Mukherjee for the Appellant.
PG NO 325 Prabir Choudhary for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
This appeal by special leave has been preferred against the Judgment dated 8th March, 1976 of the Guwahati High Court in Civil Rule No. 261 of 1973.
The appellant who was a Sub Inspector of Police in Assam was dismissed by the Superintendent of Police, Darrang district, Tezpur, by Order dated 29th January, 1973.
This order was passed without compliance with the requirements of Article 311(2) of the Constitution on the ground that it was a case to which the provisions of clause (b) of the second proviso to Article 311(2) were attracted.
The appellant preferred an appeal to the Inspector General of Police, Assam (Shillong).
The said appeal having been dismissed he challenged the order of dismissal as well as the appellate order under Article 226 of the Constitution in Civil Rule No. 261 of 1973 referred to above.
The various submissions made on behalf of the appellant did not, however, find favour with the Learned Judges who heard the civil rule mentioned above resulting in its dismissal by the judgment appealed against.
Two submissions have been made by learned counsel for the appellant: (i) The appellant having been appointed as Sub Inspector of Police by the Inspector General of Police, the order of his dismissal by the Superintendent of Police, Darrang, was illegal being in contravention of article 311(1) of the Constitution.
(ii) The provisions of clause (b) of the second proviso to article 311(2) of the Constitution were not attracted to the facts of the instant case and consequently the order of dismissal was illegal having been passed without compliance with the requirements of article 311(2).
In order to appreciate these submissions, it would be useful to extract article 311 of the Constitution.
It reads: "Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed PG NO 326 or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply (a) where a person is dismissed or removed in rank on the ground of conduct which has led to his conviction Oil a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason.
to be recorded by that authority in writing, it is not reasonably practicable hold such inquiry; or (c) where the President or the Governor, as he the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it ia reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
" Having heard learned counsel for the parties, we find it difficult to agree with any of the submissions referred to above, In support of his first submission, learned counsel for the appellant placed reliance on a Memo dated 7th July, 1967 from the office of the Inspector General of Police which According to him was the letter of appointment whereby the appellant was appointed as a Sub Inspector of Police.
According to learned counsel for the appellant this being so the order of dismissal having been passed by the Superintendent of Police, Darrang, who was admittedly "an PG NO 327 authority subordinate to that by which the appellant was appointed", was on the face of it illegal.
With regard to this submission, we are of the opinion that the said Memo cannot be treated as the letter of appointment of the appellant.
It reads as hereunder: "Express: Office of the Inspector General of Police: Assam Memo No. F/1/93/Vol.
16/51 Shillong, the 7th July, 1967.
From: Shri P.C. Das, I.P.S., Deputy Inspector General of Police (P) Assam To Md. Ikramuddin Ahmed Borah, Ward No. III, P.O. Mariani, (Jorhat), Dist.
Sibsagar, Subject: Recruitment of temporary Sub Inspector of Police (Unarmed Branch) for 1967 You are hereby informed that you are provisionally selected for appointment as temporary Sub Inspector of Police (U.B.) subject to final and satisfactory police verification report.
Please report to the Principal, Police Training College, Dergaon on 17th July 1967 positively for training failing which your name will be struck off the list of selected candidates.
The details relating to books & uniform required for training in the college should be obtained from the Principal, Police Training College, Dergaon on your joining for the training.
Your provisional appointment letter will be issued by the Principle, Police Training College, Dergaon on joining.
" PG NO 328 In pursuance of the aforesaid Memo the Principal Police Training College, Dergaon, issued Memo dated 17th July, 1967, the relevant portion whereof reads as under: "OFFICE OF THE PRINCIPAL: Police Training College: Dergaon.
APPOINTMENT LETTER Memo No. 10712(A) PTC dated, Dergaon, the 17th July 1967.
Shri Ikramuddin Ahmed Borah, s/o Late A. Ahmed Borah Vill.
Mariani, P.O. Mariani, P.S. Mariani, Dist.
Sibsagar is hereby informed that he has been provisionally appointed as a Cadet Sub Inspector of Police in Assam with effect from 17 7 1967 A.N. He should provide himself with the books and uniforms.
2 to 6. . . 7.
Principal, Police Training College, Assam may expel or discharge him any time during the training if his progress or discipline or behaviour shows that he is not likely to be tit for Police service.
Principal Police Training College, Assam, Dergaon.
Even on a bare perusal of the two Memos mentioned above, it is apparent that by Memo dated 7th July, 1967 which was issued by the Deputy Inspector General of Police, the appellant was only informed that he had been provisionally selected for appointment as temporary Sub Inspector of Police (U.B.)and the order of appointment was to be issued by the Principal, Police Training College which indeed was issued by the subsequent Memo dated 17th July, 1967.
This memo seems to have been sent by the Deputy Inspector General of Police as President of the Selection Board constituted for the purpose according to the procedure for appointment of a Sub Inspector to be found in Assam Police Manual in Part III.
Rule 11(x) at the relevant time as it appears from the judgment appealed against read as hereunder: PG NO 329 "11.
(x) Direct recruitment of Sub Inspectors: The final selection will be made by the Deputy Inspector General of Police sitting as President of a Selection Board, which will consist of himself and 2 Superintendents of Police appointed by the Inspector General of Police.
The order of appointing Probationary Sub Inspectors will be issued by the Superintendents of Police of the Districts from which the candidates are nominated.
" Rule 66 deals with proceedings to be drawn up in cases of major punishment.
The said rule contains a schedule.
Item No. 3 of column I refers to Sub Inspector of Police.
Column II indicates that the appointing authorities of a Sub Inspector of Police inter alia are Superintendent of Police; S.P./S.S.P./C.I.D.; Commandant of Battalion, Principal, APTC (that is Assam Police Training College).
Deputy Inspector General of Police is shown as the final appellate authority.
Rule 11(x) and the schedule referred to above are the relevant provisions in pursuance whereof the selection was made of the appellant vide Memo dated 7th July 1967 and the appointment order was issued by the Principal Training College, Dergaon vide Memo dated 17th July, 1967.
Consequently, Superintendent of Police and Principal, Police Training College, Assam, are authorities having coordinate jurisdiction according to column Il of the schedule.
The appellant having been appointed by Principal Police Training College Dergaon, Assam, and having been dismissed by the Superintendent of Police, Darrang, who was a coordinate authority, the submission made by the learned counsel for the appellant that the order of dismissal was illegal having been passed by an authority sub ordinate to that by which he was appointed.
obviously therefore has no substance.
Coming to the second submission, we find it necessary to refer to the order of dismissal in extenso.
It reads: "D.O. No. 320 dated 29.1.73.
Whereas it has been made to appear before me that proby.
Sub Inspector of Police Ikramuddin Ahmed Borah was appointed as proby.
Sub Inspector of Police on l7.7.67 against a temporary vacancy; AND PG NO 330 Whereas said Ikramuddin Ahmed Borah since his joining the department, his service in all branches of Police work where he had been tried leaves much to be desired and that consistent efforts by his senior officers for improving his work has proved abortive and further that despite the above drawbacks the said S.I. 's conduct and integrity has recently been found to be doubtful and the said S.I. has been recently misusing his official position to the detriment of general social well being and to his personal gain.
AND Whereas I am satisfied that it is not reasonably practicable to hold any inquiry as contemplated under Clause (2) of Article 311 of the Constitution of India because of non availability of witnesses who would not testify against the said S.I. of Police out of various considerations such as fear and because of the likelihood of causing of damage to the Police image and administration before the general public in the event of holding of such an enquiry; Now, therefore, in exercise of powers under proviso (b) clause (2) of Article 311 of the Constitution of India, l, Shri P.N. Goswami, Superintendent of Police Darrang District, Tezpur, hereby order that said Ikramuddin Ahmed Borah be dismissed from the force with effect from the date of issue of this order.
Said Ikramuddin Ahmed Borah is accordingly dismissed from the police service.
Sd/ P.N. Goswami (P.N. Goswami) Superintendent of Police, Darrang, District Tezpur.
" The scope of clause (b) of the second proviso to Article 311(2) and of Article 311(3) came up for consideration before a Constitution Bench of this Court in Union of India and Anr vs Tulsi Ram Patel and Others, [1985] supplementary 2 S.C.R., page 131.
While construing the clause "it is not reasonably practicable to hold such enquiry" used in clause (b) aforesaid, it was held: PG NO 331 "Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so.
It is not a total or absolute impracticability which is required by clause (b).
What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.
It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given.
It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so . " With regard to Article 311(3) of the Constitution after pointing out that where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of judicial review in matters where administrative discretion is exercised, it was held: "If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated.
In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal.
In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done.
The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court room, removed in time from the situation in question.
Where two views are possible, the court will decline to interfere.
" PG NO 332 One of the illustration justifying clause (b) of the second proviso to Article 311(2) being invoked, as indicated above, is the non availability of the witnesses on account of fear of the officer concerned.
In the instant case as is apparent from the impugned order of dismissal this was the main ground for invoking the said clause (b).
On the material on record, it is not possible for us to make the view that there was an abuse of power by the disciplinary authority in invoking clause (b).
The Superintendent of Police who passed the order of dismissal was the best authority on the spot to assess the situation in the circumstances prevailing at the relevant time and we do not find any good ground to interfere with the view taken by the Superintendent of Police in this behalf.
As pointed out in the case of Tulsi Ram Patel supra, in such matters, the Court will not sit in judgment over the relevancy of the reasons given by the disciplinary authority for invoking clause (b) like a Court of first appeal and that even in those cases where two views are possible, the Court will decline to interfere.
In this view of the matter, we do not find any substance in the second submission either.
In the result, this appeal fails and dismissed but in the circumstances of the case there would be no order as to costs.
N.V.K. Appeal dismissed.

summary/full:
The appellant who was a Sub Inspector of Police was dismissed by the Superintendent of Police by an order dated 29th January, 1973, exercising powes under clause (b) of the second proviso to Article 311(2) of the Constitution of India.
The appellant preferred an appeal to the Inspector General of Police, and the said appeal Having been dismissed, he challenged the order of dismissal as well as the appellate order in an application under Article 226 of the Constitution in the High Court.
A Division Bench, however, dismissed the application.
In the appeal by special leave to this Court, it was contended on behalf of the appellant that: (1) the appellant having been appointed as Sub Inspector of Police by the Inspector General of Police, the order of his dismissal by the Superintendent of Police was illegal being in contravention of Article 311(1) of the Constitution, and (2) the provisions of clause (b) of the second proviso to Article 311(2) of the Constitution were not attracted to the facts of the case and consequently the order of dismissal was illegal having been passed without compliance with the requirements of Article 311(2).
Dismissing the Appeal, the Court, HELD: 1.
The Superintendent of Police and Principal, Police Training College, Assam are authorities having coordinate jurisdiction to appoint Sub Inspectors under Rule PG NO 324 11(X) and Schedule Column II of the Assam Police Manual, Part III.
[329E; 328H] In the instant case, the appellant having been appointed by the Principal Police Training College Darrang, Assam, and having been dismissed by the Superintendent of Police, Darrang, District Tejpur who was a coordinate authority, the submission that the order of dismissal was illegal as having been passed by an authority subordinate to that by which he was appointed has no substance.
[329E F] 2.
While construing the words "it is not reasonably practicable to hold such enquiry" used in clause (b) of the second proviso to Article 311(2) it was held in Union of India vs Tulsi Ram Patel and Others, [1985] Supplement 2 SCR 131, that whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so.
It is not a total or absolute impracticability which is required.
What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.
One of the illustrations justifying clause (b) of the second proviso to Article 311(2) being invoked, is the non availability of the witnesses on account of fear of the officer concerned.
[330G H; 331A B, 332A] In the instant case, it is apparent from the order of dismissal that this was the main ground for invoking the said clause (b).
The Superintendent of Police who passed the order of dismissal was the best authority on the spot to assess the situation in the circumstances prevailing at the relevant time and this Court does not find any good ground to interfere with the view taken by the Superintendent of Police in this behalf.
In such matters the Court will not sit in judgment over the relevancy of the reasons given by the disciplinary authority for invoking clause (b) like a Court of appeal.
Even in those cases where two views are possible, the Court will decline to interfere.
[332A B. C]