1. The following two questions have been referred for decision to us:
'(1) Can a District Magistrate under Section 7(2) of the U. P. (Temporary) Control of Rent and Eviction Act (III of 1947) order the proprietor landlord to let a portion of the accommodation to the person who occupied it as a sub-tenant of the tenant-in-chief after the tenant-in-chief has been ejected and the landlord has been ordered to let the entire accommodation to a new tenant and the new tenant and the landlord have entered into a contract of tenancy with respect to the whole house?
(2) Can the new tenant object to the subsequent order of allotment in favour of the previous sub-tenant if he (the new tenant) had not entered into procession of the portion of accommodation allotted to the sub-tenant?'
2. The admitted facts of the case are that the proprietor of premises No. 37/52, Gilis Bazar, Kanpur let them to Gauri Shanker Bhargava and obtained a decree of ejectment against his tenant, This decree was executed on the 4th of October 1955.
3. Gauri Shanker Bhargava had let certain, portions of these premises to other persons as sub-tenants, one of such sub-tenants was N.C. Agarwala.
4. Krishna Lal Mehra applied for the allotment of the premises 37/52, Gilis Bazar, on the 3rd October, 1955, and the District Magistrate passed the allotment order on the 7th October. The allotment order however specified the allotment to be with respect to the portion vacated by Gauri Shanker Bhargava. On the application of' Shri Krishna Lal Mehra the District Magistrate corrected the allotment order and made it with respect to the entire house No. 37/52, Gilis Bazar.. This was done on the 11th of October, 1955.
5. On the 17th of October, 1955, N. C. Agarwala applied to the District Magistrate for the allotment of the portion in his possession as subtenant. On the 28th of October, 1955, the District Magistrate modified his earlier order in favour of Krishna Lal Mehra with respect to the portion occupied by N.C. Agarwala as sub-tenant, and? allotted the portion occupied by Agarwala to him.
6. Krishna Lal Mehra then applied for the quashing of the order of the District Magistrate dated the 28th of October. The learned Judge quashed that order holding that the District Magistrate had no jurisdiction to split up the tenancy and to allot different portions to different persons without the consent of the landlord, Shri Agarwala has filed the special Appeal.
7. Krishna Lal Mehra stated in his affidavit that he had deposited one month's rent with the landlord on the 12th October, 1955, and that he took over possession of almost the entire first floor on the 14th October. These statements are not admitted by N.C. Agarwala in his counter-affidavit. He however states that these dates have been mentioned to suit the convenience of the petitioner Krishna Lal Mehra and that of the two sub-tenants on the first floor one continued to be in possession till the 12th November, 1955, and the other till the 28th January, 1956. The Bench referring the two questions to the Full Bench did not express any opinion on these matters.
8. The first question may however be split up and re-formulated thus:
'1 (a). 'Can a District Magistrate under Sub-section (2) of Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act (III of 1947) order the proprietor landlord to lot a portion of the accommodation to one person and the remaining portion of that accommodation to another person?
1(b). If the answer be in the affirmative can he order the proprietor landlord to let a portion of the accommodation to a person after he had ordered the landlord to let the entire accommodation to another person and the landlord and? that person had entered into a contract of tenancy with respect to the entire house.'
9. Sub-section (1) of Section 7 of the Act requires the landlord and the tenant to intimate the vacancy of an accommodation to the District Magistrate within a certain period. Sub-section (2) empowers the District Magistrate to require a landlord to let or not to let to any person any accommodation, which is or has fallen vacant or is about to fall vacant.
' 'Accommodation' is defined in Clause (a) of Section 2 of the Act which is:
'(a) 'Accommodation' means residential and non-residential accommodation in any building or part of a building and includes-
(i) gardens, grounds and outhouses, if any appurtenant to such building or part of a building;
(ii) any furniture supplied by the landlord for use in such building or part of a building;
(iii) any fittings affixel to such building or part of a building for the more beneficial enjoyment thereof; But does not include any accommodation used as a factory or for an industrial purpose where the business carried on in or upon the building is also leased out to the lessee by the same transaction.'
The definition is very wide. The word 'accommodation' in Sub-section (2) of Section 7 should however be given some specific meaning. Such a definite meaning, according to our view, should be that 'accommodation' means an accommodation in a building or part of a building which if it is in the occupation of the landlord becomes vacant by his ceasing to occupy it, if it is let out is held under one lease, agreement or tenure and if it is requisitioned is released from requisition so that if it falls vacant or is about to fall vacant intimation about its vacancy has to be given under Sub-section (1) of Section 7.
10. The definitions of 'landlord' and 'tenant' fix the accommodation to be the accommodation for which rent is payable by the tenant to the landlord- The unit of accommodation therefore be-comes the accommodation or the part of the building let to a tenant. Similar inference is to be gathered from the use of the word 'accommodation' in Section 3. A tenant is to be sued for eviction from any accommodation in certain specified circumstances. Section 3(a) provides for the determination of annual reasonable rent with respect to an accommodation which is let. Sections 4, 5, and 6 and Sub-section (1) of Section 7 lead to the same inference.
It follows therefore that the power of the District Magistrate under Sub-section (2) of Section 7 is restricted to giving orders requiring a landlord to let or not to let to any person any particular accommodation which has fallen vacant or is about to fall vacant. He has to consider the entire accommodation as one unit just as it had been a unit of tenancy from before. He cannot create several accommodations out of one unit of accommodation, and then order the landlord to let those divided portions of the accommodation to different persons.
11. The power of determining the unit of tenancy vests in the landlord. It is his right to let accommodation to a tenant. He may divide the building into any number of portions for the purposes of letting them to tenant. The District Magistrate is not conferred any power to decide this matter. The jurisdiction of the District Magistrate to control the letting of a building, or its parts arises only when the accommodation falls vacant or is about to fall vacant. The District Magistrate controls the letting and does not in any other way control the general rights of the landlord in connection with his building. The Rent Control and Eviction Act is a restrictive Act and has to be strictly construed.
Its object is to control the letting and the rent of residential and non-residential accommodation and to prevent the eviction of tenants therefrom. The power of control is clearly defined and cannot extend to matters not included in the Act. In the absence of any express provisions empowering a District Magistrate to direct a landlord to let his building in such and such parts as directed, the power of the District Magistrate cannot be construed to include such a power. He has to accept the accommodation as a unit of tenancy according to the landlord's decision, and then to see that the landlord does not exercise his powers of letting in a way prejudicial to the interest of the society.
12. A tenant cannot sublet any portion of the accommodation in his tenancy, except with the permission and writing, of the landlord and oil the District Magistrate previously obtained. This clearly indicates that the accommodation in the tenancy of a tenant is not to be sub-divided into further 'accommodations' for the purposes of subletting and that if a portion of the accommodation is to be sublet, the consent of the landlord and the District Magistrate is essential. The transaction between the tenant and his subtenant will then be legal and will not authorise the landlord to evict the tenant but will in no other way affect the landlord's rights vis a vis the tenant.
The District Magistrate is given this power to permit subletting with a view to control the letting of a portion of the accommodation by the tenant. He is to see that there is no abuse of the landlord's power of letting accommodation, by first letting a large accommodation not required by a, tenant to him and then simply allowing the tenant to sublet the excess accommodation to others. In fact once the District Magistrate recognises the subletting the power to control the relations between the tenant-landlord and the sub-tenant vests in the District Magistrate in view of the pro-visions of Sub-section (2) of Section 7 read with the explanation to that section.
13. A statute affecting private rights is to provide expressly for either the taking away of the private right or for imposing restrictions on that right. The rights cannot be taken away or restricted by implication.
14. Craies in his Statute Law, Fourth Edition, notes on page 107:
'Express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes......
(2) Conferring or taking away legal rights, whether public or private.
15. In re Cuno; Mansfield v. Mansfield, (1889, 43 Ch. D, 12 Dowen LJ said at page 17:
'..... .In the construction of statutes, youmust not construe the words so as to take away rights which already existed before the statute was passed, unless you have plain words which, indicate that such was the intention of the legislature.'
16. In the case of Western Counties Railway Company v. Windsor and Annapolis Rly. Co; (1882) 7 AC 178, it was said at page 189:
'..... .that in order to take away the right itis not sufficient to shew that the thing sanctioned by the Act, if done, will of sheer physical necessity put an end to the right, it must also be shewn that the Legislature have authorised the thing to be done at all events, and irrespective of its possible interference with existing rights.'
17. In the case of Kailash Nath v. Rent Control and Eviction Officer, 1955 AH LJ 355 the contention that the Rent Control and Eviction Officer had no jurisdiction to allot a portion of an accommodation was repelled. Agarwala, J. in his judgment said, 'Accommodation means 'the whole of the accommodation or any part thereof vide definition of 'accommodation' in Section 2(a) of the Rent Control and Eviction Act.' This was not quite accurate. We have already quoted the relevant part of the definition 'accommodation'. It means accommodation in any building or part of a building. He also referred to the policy of the Act and stated,
'It was, therefore, felt necessary that some measure of control of letting accommodation be provided for, so that more persons may he provided with accommodation than would be possible (Otherwise. For these reasons we think that a Rent Control and Eviction Officer can allot a part of the accommodation to one person and another part to another person; There is nothing in the Act to prevent this being done; on the other hand, we think that for the furtherance of the objects of the Act it would be very necessary for the, Rent Control And Eviction Officer (to possess this power.
18. It may be necessary that such a power be vested in the Rent Control and Eviction Officer, but it does not follow that such a power has been conferred by Sub-section (2) of Section 7 of the Act. There is no further discussion as to why the powers under this Sub-section of Section 7 includes the power to sub-divide accommodation into several accommodations, and then to pass orders for letting those fresh accommodations to different persons. With respect, we do not agree with this view.
19. In the case of Badri Prasad Tripathi v. District Magistrate, AIR 1952 All 832 the point did not arise for decision, as in the words of Agarwala, J. :
'It is nobody's case that a portion of the portion in the occupation of Sri Sri Nath Pathak could be separately allotted to any party. In fact the Rent Control and Eviction Officer himself stated in his order of 23-7-51 that the portion occupied by Sri Sri Nath Pathak could not be further subdivided.'
20. In the case of Brij Kishore v. Rent Control and Eviction Officer, 1954 All LJ 172: (AIR 1954 All 428), it was observed:
'The vacancy of an accommodation referred to in Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act means the vacancy of entire accommodation in the tenancy of any person and cannot refer to the tenant's not using, for the time being, part of the accommodation which had been let out to him as a result of the transaction of the contract of tenancy between him and the landlord.'
and it was held:
''The disuse by a tenant of a portion of the accommodation let to him does not amount to the tenant's vacating that portion of the accommodation and does not therefore, give any right to the Rent Control and Eviction Officer to allot such portion of the accommodation to another person.'
21. This is consistent with the view we have expressed above. In view of the above our answer to question No. 1(a) is in the negative.
22. Question No. 1(b) therefore does not arise.
23. Our answer to the second question is in the affirmative. The subsequent order of allotment in favour of a person other than the original allottee of the entire accommodation is void in view of our answer to question No. 1 (a) and, therefore, the original allottee can object to the subsequent order of allotment irrespective of the fact whether he had entered into possession of that portion of the accommodation or not.
24. We direct that the above answers be laid before the Bench concerned.