Allahabad High Court
Smt. Kishan Pyare vs Rent Control And Eviction ... on 1 December, 2004
Equivalent citations: 2005(1)ARC260, 2005(2)AWC1217, 2005 A I H C 2074, (2005) 2 RENTLR 74, (2005) 1 ALL RENTCAS 260, (2005) 1 RENCJ 165
Author: Vikram Nath
Bench: Vikram Nath
JUDGMENT Vikram Nath, J.
1. This writ petition has been filed by the tenant for quashing the judgment dated 2.9.1987, passed by the Rent Control and Eviction Officer, Bulandshahr, in Case No. 35 of 1985, Babu Ram v. Nand Kishore and Ors., whereby he has declared vacancy in the premises in dispute.
2. The dispute relates to shop No. 316, situate in Mohalla Intarorhi. Bulandshahr of which Babu Ram, respondent No. 2, was the owner and landlord and Shravan Kumar son of the petitioner was a tenant. During the pendency of the writ petition, the landlord Babu Ram transferred the premises in dispute in favour of Sunil Kumar son of Ram Bharosey Lal and he has been impleaded as respondent No. 4 in the writ petition. The tenant Shravan Kumar had died on 24.2.1985. The landlord Babu Ram filed an application under Section 12 (1) (b) read with Section 16 (1) (b) of the U.P. Act No. XIII of 1972 for declaring vacancy and releasing the shop in dispute in his favour on the ground that the tenant Shravan Kumar has died leaving behind no heirs as such the shop in dispute is available and further that the landlord bonafide required it for augmenting his income to feed his large family.
3. The Rent Control and Eviction Officer initially vide order dated 30.9.1985, declared vacancy, without calling for report from the inspector and without issuing any notices. Thereafter, when the application of the landlord for release was being considered, notices were issued to the petitioner, who appeared and filed objections and contested the release application and also filed application for recalling the order of vacancy. It was subsequently alleged by the petitioner that the application filed by the landlord was based upon incorrect facts and after the death of Shravan Kumar the petitioner being heir became the tenant after his death. The Rent Control and Eviction Officer invited objections and thereafter the application filed by the petitioner for recalling the order of the vacancy was allowed vide order dated 27.5.1986.
4. The Rent Control and Eviction Officer again considered the question of vacancy on merits after affording opportunity to the parties. The landlord took objection to the stand taken by the petitioner. Firstly, that Smt. Kishan Pyare, the petitioner, is not the mother of the tenant Shravan Kumar and secondly, that she has been residing separately from Shravan Kumar who was living alone, therefore, she has no focus to be heard. Rent Control and Eviction Officer, after considering material on record, and after hearing the parties held that Smt. Kishan Pyare, was the real mother of the deceased tenant Shravan Kumar. He further held that she was not residing with Shravan Kumar as such there was deemed vacancy under Section 12 (1) (b) of the Act and accordingly vide order dated 2.9.1987 declared vacancy. Aggrieved by the said order Smt. Kishan Pyare has filed the present writ petition.
5. I have heard Sri R. K. Misra, Advocate, holding brief of Sri Neeraj Agarwal, learned counsel for the petitioner. He has stated that Sunil Kumar the subsequent purchaser had already been impleaded in this petition and is represented through Sri H. N. Sharma, advocate.
6. This is an old writ petition of the year 1987. Order sheet indicates that case has been adjourned repeatedly on account of illness slip of Sri H. N. Sharma and it was also directed to be listed peremptorily twice. Today it is listed peremptorily and again illness slip of Sri H. N. Sharma advocate, has been noted. In view of the provisions contained in the High Court Rules, this matter is being heard ignoring the illness slip of Sri H. N. Sharma, learned counsel for the respondent Sunil Kumar. The previous owner Sri Babu Ram had filed counter affidavit, which has been examined by me.
7. The only question required to the decided in this case Is whether the Rent Control and Eviction Officer was right in relying on the fact as to whether Smt. Krishana Pyare was residing separately from her son Shravan Kumar or not. It has been contended by the learned counsel for the petitioner, that this question is not at all necessary to be looked into. For the purposes of tenancy it was required to be seen as to who is the heir of the petitioner tenant as provided under Section 3 (a) of the Act, which reads as under :
3. Definitions.--In this Act, unless the context otherwise requires.
(a) "Tenant", in relation to a building, means a person by whom its rent is payable, and on the tenant's death-- (1) In the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death. (2) In the case of a non-residential building, his heirs ;
8. It is clear from Sub-clause (2) of Section 3 (a) of the Act that on the death of tenant of a non-residential building, his heirs would become tenant and so far as residential building is concerned, Sub-clause (1) provides that heirs, who normally resided with the tenant at the time of his death, would become the tenant. It is not denied that Smt. Kishan Pyare is mother of Shravan Kumar. This finding has not been challenged by the landlord. Learned counsel for the petitioner has stated that there is no writ petition filed by the landlord.
9. Further Section 3 (g) of the Act defines family in relation to the landlord and tenant of building. The same is quoted as under":
3. (g) "family", in relation to a landlord or tenant of a building, means, his or her--
(i) Spouse,
(ii) Male lineal descendants,
(iii) Such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her.
And includes, in relation to a landlord, any female having legal right of residence in the building;"
10. Sub-clause (iii) of Section 3 (g) of the Act includes such person who may have been normally residing with the deceased tenant. Taking into consideration the said definition the Rent Control and Eviction Officer has held that Smt. Kishan Pyare is not included in the family of Shravan Kumar after recording a finding that she was not residing with him. This question was irrelevant whether or not Smt. Kishan Pyare was residing with Shravan Kumar. She having inherited the tenancy there was no question of any vacancy. The right of the petitioner to inherit the tenancy was derived from Section 3 (a) of the Act. Section 3 (g) of the Act would have come into play for inheritance of the tenancy only where family was to be considered, and not otherwise.
11. Further the declaration of vacancy under Section 12 (1) (b) of the Act also cannot be sustained as it referred to situation where tenant has allowed the building to occupy by any person, who is not a member of his family. In the present case, question of tenant allowing any person other than family to occupy does not arise. This was a case of a deceased tenant and his inheritance. His heirs would continue to remain as tenant until their tenancy is terminated in accordance with law. The landlord had other remedies available to him for getting the, premises vacated. In any case he could not get it declared as vacant, on the ground that the mother was not residing with Shravan Kumar, in respect of non-residential accommodation.
12. In view of the discussion made above the reasoning of the Rent Control and Eviction Officer for declaring the vacancy cannot be sustained. The same is accordingly liable to be set aside. The writ petition succeeds and is allowed. Impugned judgment dated 2.9.1987 declaring the vacancy in premises in dispute is set aside.