GIRJA SHANKAR TIWARI AND ANR. versus HIRDAY RANJAN CHAKRABORTY AND ANR.

Citation: [1988] SUPP. 3 S.C.R. 426 · Decided: 05-10-1988 · Supreme Court of India · Bench: SABYASACHI MUKHERJI · Disposal: Case Allowed

Judgment (excerpt)

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GIRJA SHANKAR TIWARI AND ANR. 
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.· 
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 
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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 
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landlord does not occupy the building or substantially removes his 
effect therefrom and allows to occupy any person who is not a member 
of his family then the vacancy should be deemed. The Rent Controller 
found that the premises was not occupied by the tenant but by a person 
other than the tenant. The Rent Controller held that the shop was 
vacant and allowed the application. In an appeal the High Court dismis-
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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, 
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, . 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] 
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 
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without the consent though, perhaps with knowledge of the landlord 
was occupying the premises but in such ·circumstances it cannot be held 
as the High Court has done that there was no deemed vacancy. The 
High Court was in error in holding that the Aushadhalaya was. a tenant 
through the petitioners. The tenant was the Aushadhalaya and the 
proprietors thereof. It is an admitted factual position and the High 
Court recognised that the Aushadhalaya was closed in the year 1976. 
The High Court commented that the landlord recognised Respondent 
No. 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] 
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, 
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was in the name of the Aushadhalaya. It was not in occupation or 
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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] 
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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. 
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R.K. Jain, .R.B. Mehrotra and Pradeep Mishra for the Appel-
lants. 
G .C. Mathur and K.P. Gupta for the Respondents. 
The Judgment of the Court was delivered by 
SABYASACHI MUKHARJI, J. Leave granted. The appeal is 
disposed of by the following judgment. 
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This appeal arises out of the judgment and order of the High 
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428 
SUPREME COURT REPORTS 
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