Special Leave Petition Civil No 6577 of 1988
From the Judgment and order dated 2741988 of the High Court of Allahabad in CMW No 3777 of 1987
GL 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 109 of the UP 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 RC Saxena
DC Saxena Smt
Shanti Saxena and BS 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 2811978 Veeresh Saxena vacated the shop and sent intimation of vacancy to the Rent Control Officer under the UP 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 BS 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 petitioners 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 Rs2 lakhs in the shop but BS Saxena
who was a non occupant owner on or about 25th February 1978 filed an application under section 165 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 45th February 1978
The Rent Controller however on the said application of BS 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 165 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 165b of the Act
The relevant provisions of the said sub section read as follow 5a 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 165a  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 165a speaks of where the landlord or any other person 
Hencethere are two categories of persons contemplated ie 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 GL 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 NDOjha 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 thereforerejected
NVK Petition dismissed


Summary:
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 parties207G 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