Harbans Singh Sethi vs Rent Control and Eviction Officer, Nainital and others

M.C. Desai, C.J.—This case has been laid before this bench. The petitioner is a tenant of an accommodation and has been in the habit of illegally subletting a portion of it. The subletting by him has been illegal because it prohibited by Section 7(3) of the Rent Control and Eviction Act, unless it is with the District Magistrate''s sanction and the landlord''s permission. The petitioner has been surreptitiously subletting without the District Magistrate''s sanction and the landlord''s permission in order to make an illegal gain. The last subletting was to Dewan Chand Jain. The petitioner wanted him to vacate the part of the accommodation in order to sublet it for a higher rent but he refused. After refusing Dewan Chand Jain approached the District Magistrate and got an order for the letting of the part of the accommodation in his favour, Subsequently the District Magistrate passed an order u/s 7A requiring the petitioner to show why he should not be made to vacate the accommodation on the ground that his occupation of it was in contravention of the order passed in favour of Dewan Chand Jain. The petitioner filed an objection against the notice issued to him denying that he had ever sublet the accommodation to Dewan Chand Jain and that it was vacant. The District Magistrate made an enquiry, found that he had sublet the accommodation to Dewan Chand Jain and that consequently it had been vacant and ordered him to vacate. The petitioner then applied to the Commissioner to revise the District Magistrate''s order and the application is pending. The necessity for moving the instant petition for certiorari against the District Magistrate''s order requiring the petitioner lo vacate the accommodation arose, though his application for revision of it was pending before the Commissioner, on account of the Commissioner''s refusal to slay the operation of the order sought to be revised.

The petition came before our brother Satish Chandra, who on account of certain conflict among authorities referred it to a larger bench and the petition has been laid before us.

The petition deserves to be rejected on two grounds apart from the merits. One is that the petitioner is pursuing a remedy against the impugned order before the Commissioner and is not entitled lo come to this Court invoking its extraordinary jurisdiction. It is settled now that a remade of applying to a higher authority for revision of the impugned order is an alternative adequate remedy and a High Court can refuse lo exercise its extraordinary jurisdiction under Art. 226 on the ground that such a remedy exists The instant is a fit case in which the discretion should be exercised in favour of refusing relief to the petitioner, there is nothing in the circumstances of this case on account of which he may be granted the relief even though an alternative adequate remedy is available to him and is being pursued by him. On this ground alone the petition fails.

The other ground is that the conduct of the petitioner is such as to disentitle him to the discretionary relief. He has not come to the Court with clean hands. He has been infringing the provisions of the Rent Control and Eviction Act and came to the Court suppressing the facts When he has been subletting in order to make unlawful gain in contravention of the law this Court should not help him in doing so. On this ground also the petition fails.

As regards the question of law raised whether an accommodation falls vacant when a tenant-in-chief sublets it or a part of it (without the District Magistrate''s sanction and the landlord''s permission) it has been held recently by a Full Bench of this Court inMohammad Ishaq v. State of U.P. Writ Petn. No. 222 of 1961, dated 8-11-1966 (LB) : Mohd. Ishaq Vs. State Govt. of Uttar Pradesh and Others, that when a tenant-in-chief vacates an accommodation by subletting the District Magistrate can order the owner to let it, and not to the tenant lo sublet it. This settles that there is vacation when a tenant-in-chief sublets either the whole or a part of it. The Full Bench accepted that there is vacating when there is subletting; otherwise, the question of issuing an order for letting or subletting would not arise at all, Brij Kishore and Another Vs. Rent Control and Eviction Officer and Others, , did not deal with a case of a tenant''s subletting a portion but with a case of his not using a portion of the accommodation. In Kartar Chand v. Mahesh Prasad, 1962 All LJ 601, this Court found that there was a vacancy and is, therefore, no authority for the proposition that no vacancy arises when a tenant (illegally) sutlels a portion. In Dr. A.C. Dass v. Town Rationing Officer, 1962 All LJ 553 to which one of us was a party, the whole law was discussed and it was held that a vacancy does arise when a tenant-in-chief sublets. In the case of Mohammad Ishaq, WP No. 222 of 1961 dated 8-11-1965 (LB) : ( Mohd. Ishaq Vs. State Govt. of Uttar Pradesh and Others, this decision was followed except as regards the question whether an order u/s 7(2) should, on the vacancy arising, be issued to the landlord or to the tenant-in-chief. So we hold that the petitioner had vacated the accommodation and the District Magistrate had jurisdiction to order that it should be let to Dewan Chand Jain.

The District Magistrate passed the order only in respect of the part of the accommodation which was being sublet by the petitioner and not in respect of the whole of the accommodation that was let to him by the landlord. He contended that the District Magistrate had no jurisdiction to split the accommodation. This is correct; this District Magistrate should have held that the whole accommodation had fallen vacant as decided in the case of Mohammad Ishaq. WP No. 222 of 1961 dated 8-11-1965 (LB) : ( Mohd. Ishaq Vs. State Govt. of Uttar Pradesh and Others, and ordered the landlord to let the whole of it But the order of splitting the accommodation which allows the petitioner to remain in occupation of a portion of it is in his favour and not against him and he is not aggrieved by it. If he does not like to remain in occupation of a portion he is always at liberty to vacate it. If he is aggrieved by the splitting the remedy is in his own hands because he is not obliged to remain a tenant of a part of the accommodation. The landlord may be aggrieved of Dewan Chand Jain may be aggrieved, by the order being passed in respect of a portion of the accommodation but they have sought no relief against it.

There is no force in this petition and it a dismissed with costs.