1. Whether the obligation to report the vacancy under Cl. 22(1) of the Rent Control Order, 1949, arises in every case, or whether it arises only in cases where there is letting, or, in other words, whether the word 'landlord' in Cl. 22(1) embraces the term 'owner'; is the question referred by the learned single Judge (Tulpule J. ) for decision by a Division Bench.
2. The petitioner claiming to be a tenant of the house No. 54 standing on Nazul Plot No. 349, Sheet No. 25-D, at Khamgaon, belonging to the respondent, at Rs. 60/- per month from Dec. 15, 1975, filed two applications - one for fixation of fair rent and the other for permission to carry out essential repairs. He also contended that a sum or Rs.500/- had been taken by the respondent from Dec. 15, 1975, filed two applications - one for fixation of fair rent and the other for permission to carry out essential repairs. He also contended that a sum of Rs. 500/- had been taken by the respondent from him as advance. The respondent denied that the petitioner was his tenant and contended that the petitioner was a mere licensee as he had been temporarily accommodated for a period of two months, as he had vacated the premises in which he was staying because they were being sold. According to the respondent, he had purchased the suit house in the year 1957 but could obtain possession only after a protracted litigation, in the year 1966. His alternative contention was that as the lease had been created in contravention of Cls. 22 and 23 of the Rent Control Order, it was void and the petitioner's applications were not maintainable.
3. Both the Rent Controller and the appellate authority held that as the tenancy had not been created in accordance with the provisions of the Rent Control Order, it was not valid. The infraction, according to both the authorities, lay in the failure on the part of the respondents to give intimation as required under Cl. 22(1) of the Rent Control Order and the absence of the assurance by him that the house was being permitted to be occupied in accordance with sub-Cl.(2) of Cl.23 of the Rent Control Order.
4. Aggrieved by these orders, the petitioner filed the present petition. The learned single Judge, who heard the matter, felt that there was an inconsistency between the view taken by this Court in Anandibai v. Shanthabai, Second Appeal No. 286 of 1962, decided on 7th January, 1970 by Nain J.), 1970 MahLJ 21: Pandurang v. Dulichand, 1960 NagLJ 335, decided by S.P. Kotwal, J., as he then was and Atmaram v. Jago, (Second Appeal No.43 of 1964, decided on 16th November, 1965, by Paranjpe J.) on one hand; and Mohammed Altafur Rehman v. House Allotment Officer, 1980 MahLJ 94, decided by V.V. Joshi J., on the other; as the former line of the judgments seems to take the view that every vacancy had to be reported and that even in case of premises where the character of possession changes, a notional vacancy occurs requiring compliance with Cl.22 of the Rent Control Order, while in Mohammed Altafur Rehman's case, it was held that compliance with Cl.22 is necessary only where a house is vacated after it has been let out to a tenant or vacated after it has been let out to a tenant or vacated by the landlord with the intention of letting it out to some tenant, but where the house is not let and is not occupied by the owner, if it is being let out for the first time, any compliance with Cl.22 would not be necessary.
5. Before proceeding to consider the rulings to which reference was made by the learned single Judge, it would be necessary to examine the provisions of the Rent Control Order, which have bearing on the subject. Cls. 22 and 23 of the Rent Control Order are as follows:-
'22.(1) Every landlord of a house situate in an area to which this chapter extends, shall-
(a) within seven days from the date of the extension of this chapter, if the house is vacant on such date; or
(b) within seven days from the date on which the landlord becomes finally aware that the house will become vacant or available for occupation by himself or for other occupation on or about a specified date;
give intimation of this fact to the Collector of the district in which the area is included or such other officer as may be specified by him, in the Form given in the Schedule appended in this Order, and shall not let or occupy the house except in accordance with Cl.23.
(2) No person shall occupy any house in respect of which this chapter applies except under an order under sub-Cl. (1) of Cl.23 or Cl.24 or an assurance from the landlord that the house is being permitted to be occupied in accordance with sub-Cl. (2) of Cl.23.
23.(1) On receipt of the intimation in accordance with Cl.22, the Collector may, within fifteen days from the date of receipt of the said intimation, order the landlord to let the vacant house to any person holding an office of profit under the Union or State Government or to any person holding a post under the Madhya Pradesh Electricity Board, or to a displaced person or to an evicted person and thereupon notwithstanding any agreement to the contrary, the landlord shall let the house to such person and place him in possession thereof immediately, if it is vacant or as soon as it becomes vacant;
Provided that if the landlord has, in the intimation given under Cl.22, stated that he needs the house for his own occupation, the Collector shall if, satisfied after due enquiry that the house is so needed, permit the landlord to occupy the same.
(2) If no order is passed and served upon the landlord within the period specified in sub-Cl.(1), he shall be free to let the vacant house to any person.'
Clause 22(1) creates an obligation on the landlord to intimate to the collector within seven days from the date on which the landlord becomes finally aware that the house will become vacant and available for occupation or for other occupation on or about the specified date. That obligation is not cast on an owner. The term 'landlord' under Cl.2(4) of the Rent Control Order includes the person who is receiving or is entitled to receive the rent of a house whether on his own account or on behalf of himself and others or as an agent or trustee, or who would so receive the rent or be entitled to receive the rent if the house were let to a tenant. Thus, the expression includes not only the cases where there had been previously a demise but also those contingencies where he would be entitled to receive the rent if the house were to let to a tenant. Under sub-Cl.(5) of Cl.2, 'tenant' means any person by whom or on whose account rent is payable for a house and includes a sub-tenant and a person continuing in possession after the term of his tenancy has expired.
6. It would be useful in this context also to refer to the preamble of the C.P. & Berar Regulation of Letting of Accommodation Act, 1946, under which the Rent Control Order has been issued, and it as follows:-
'An Act to provide for regulating the letting and subletting of accommodation in the Central Provinces and Berar.
Whereas it is expedient to make provision for regulating the letting and sub-letting of accommodation and other ancillary matters here under specified:
It is hereby enacted as follows:- The preamble makes it very clear that the net cast is not wide but is restricted only to the letting and sub-letting of accommodation and other ancillary matters, and all other categories of transactions would stand excluded. Having regard to these provisions, we are clear that the term 'landlord' used in Cls. 22, 23 and 24 of the Rent Control Order would not embrace an owner unless he intends to let the premises after the vacancy is created.
7. Shri Kulkarni, the learned Advocate for the respondent, urged that the point, which has been referred., has been concluded by decision of a Division Bench of this Court in Kakubhai and Company v. Nathmal Kishanlal Goenka, : AIR1980Bom25 . In that case, it was held that under Cl.22(2) , C.P. and Berar Letting of Houses and Rent Control Order, there is a total prohibition which prevent occupation of a house unless there is an order under Cl.23 or an assurance that letting is permitted in accordance with Cl.23(2) . A lease granted in contravention of the Rent Control Order is therefore void in view of S. 23, Contract Act being in contravention of Cl.22(2), Rent Control Order. It did not deal with the question as to whether the necessity of intimation arises in every case where the house is physically vacant and has not been occupied by any tenant. That question did not arise for decision by the Division Bench, in that case.
8. In Mangilal Karwa v. State of Madhya Pradesh, AIR 1955 nag 153, a Division Bench of then Nagpur High Court made the following observations:-
' The provisions contained in Cls. 23,24 and 24A of the Rent Control Order, 1949, do not compel the Landlord to let his house if he does not intend to induct any tenants into the premises. It is only after the house has already been let out or the landlord intends to let out that the Deputy Commissioner is empowered to determine who shall be the tenant in such a house. The wishes of the landlord, according to the statute, count only so long as he had not decided to let out the premises, he has deprived himself of this absolute right to say 'No', and the power of the Deputy Commissioner to intervene and regulate the letting would come into existence. Thereafter, it is for the Deputy Commissioner to consider and determine after due enquiry whether the premises are really required by the landlord himself or whether they are open to be let out to tenants, and if so to whom.'
9. A learned single Judge of this Court in Atmaram v. Jago, (Second Appeal No. 43/64) (Paranjpe J.), while considering the provisions of Cl. 22, observed that so long as the landlord does not intend to occupy the premises for himself or to let them out to any one, that house could not come within the orbit of Cl. 22, But the moment he decides to let out the vacant house, it would come within either sub-Cl, (1) (a) or sub-c1 (1) (b) of Cl 22 and therefore, he would become liable to given an intimation to the Collector as per this clauses. There, the plaintiff intended to purchase the property and allowed the defendant to occupy the house as a tenant, and the learned Judge held that the moment he took the decision to take a transfer of title and to allow the defendant to occupy the house as a tenant, his case clearly fell within sub-Cl. 1(b) of Cl 22 and he ought to have intimated the Collector. It was not even suggested there that in the absence of the intention to let out the property also provisions of Cl. 22(1) would have applied. In pandurang v. Dulichand, 1960 NagLJ 335, another learned single Judge (S.P Kotwal J., as he then was) Observed that where the landlord without complying with the provisions of Cls. 22, 23 and 24 of the C.P and Berar Letting of Houses and Rent Control Order lets out the house falling vacant, such contract is void and suit for rent based on such contract is not maintainable on account of S. 23 of the Contract Act. The learned Judge was not called upon to consider the points as it arises here, and the case was decided on the assumption that there was a vacancy which had not been intimated.
10. Nain J., in Second Appeal No. 286 of 1962, Anandibai v. Shantabai, 1970 MahLJ 21, followed the earlier two decisions by the sign Judges and held that non-compliance with the provisions of Cls. 22, 23 and 24 would render the contract void and the suit for rent based on such a contract would not be maintainable on account of S. 23 of the Contract Act. The point, which arises here, did not arise in that case also for decision.
11. It is in this context that the observations, which came to be made in Mohd. Altafur Rehman's case by Joshi J. 1980 Mah learned Judge referred to Mangilal v. State of Madhya Pradesh, AIR 1955 Nag 153 and Kisanlal v. S. D.O.Arvi, 1976 Madh LJ 13. We have already referred to the observations mad in Mangilal's case, so far as they have a bearing on the point before us. In Kisanlal's case, the landlord had let out some rooms of his house and was in possession of the rest. He temporarily allowed a close relative who was staying in another village, to use some portion of his front room, which had no other facilities, for his dispensary. When the relative secured other accommodation , he left the room. The landlord had stocked some seeds etc., in the rear portion. When the relative left, the Houses Allotment Officer, on an application of his reader for allotment, issued notice to the landlord who denied having let out the room and stated that it was temporarily occupied by his relative. The House Allotment Officer inspected the premises and without any further inquiry held that the house was vacant; that it was not in domestic use; that the landlord had not given intimation, that even if plea for personal use were to be raised that would be falsified by the fact that other rooms were let out. He thus held that the room was available for allotment and allotted the same. Chandurkar J. (as he then was) on these facts, observed that merely because some accommodation in the occupation of the landlord is vacant, that accommodation does not become available for allotment. In order that the accommodation must be available for allotment the accommodation must be vacant in the sense that the landlord is not either using the accommodation or it is not in his own occupation. In Mohd. Altafur Rehman's case, the petitioner, after entering into an agreement of purchase, requested the vendor to let a friend of the petitioner's father to occupy the house as a licensee without any payment of rent. The petitioner purchased the house on 10-10-72 and the licensee who continued to occupy it till about the year 1977 having vacated it, the same was though out occupied by the owner. The House Allotment Officer, however, allotted the house to the respondent, and it was in this background that the learned Judge made the following observations:
'It is not every vacancy of a house in the normal sense of a house being made vacant either temporarily or permanently that would attract the provisions of Cl. 22, C.P. and Berar Letting of Houses and rent Control Order requiring intimation to be given to the Collector. It is only when the house is vacated after it has been let out to a tenant or vacated after it has been let out to a tenant or vacated after it has been let out to a tenant or vacated by the landlord with the intention of letting it out to some tenant or vacated by the landlord with the intention of letting it out to some tenant that the provisions of Cl. 22(1) would be attracted. There could be several cases in which the house would be vacated in the sense of its being made vacant and yet the provisions of Cl. 22(1) would not be attracted. A temporary vacancy for example would be caused before a purchaser takes possession after the vendor vacates. An owner of a house occupying it himself may vacate it if he is going out of town for some period not intending to let out the house. An owner occupying personally may also vacate the house and go elsewhere intending that after sometime some relation of his might step into it and occupy the house not as tenant but on behalf of the owner. In all these cases it cannot be imagined that the provisions of Cl. 22(1) could be attracted requiring the landlord to notify the vacancy to the Collector giving power to the Collector to allot the house to be let out to a tenant of the Collector's choice.'
12-13. The view taken by Joshi J. in Mohamad Altafur Rehman's case accords with the view taken by Paranjape J. in Atmaram's case. In no case it is held that every vacancy - irrespective of its character - is required to be intimated, though undoubtedly it has been held in some cases that even a 'notional vacancy' can fall within the concept of vacancy in Cl. 22. Even in Atmaram's case and Mohtd. Altafur Rehman's case it has not been held that Cl. 22 is not attracted if the house is being let out for the first time.
14. Having considered the statutory provisions and the authorities, we are of the view that is not every vacancy of a house national or actual - that would attract the provisions of Cl. 22 requiring intimation to be given. It is only in the following circumstances and no other, that obligation to give intimation under there relevant clause is attracted.
(1) When a house is vacated by a tenant and the landlord (a) proposes either to re-let it or (b) wants it released for his bona fide occupation, as required under proviso to Cl. 23.
(2) When the landlord proposes to let out the house for the first time.
15. In this connection, a useful reference may also be made to Cl. 23 (2) and the statutory schedule under Cl. 22, both respectively referring only to letting and re-letting and to no other aspect. The landlord is absolutely free do deal with the property in any manner he chooses, for example, there is not restriction on his right to transfer the property even after its vacation by a tenant. the matter would now go back to a single Bench for decision of the other questions involved in this case.