Allahabad High Court
Ashish Kumar S/O Late D.B. Saxena vs Additional District Judge, Ayodhya ... on 5 July, 2010
Author: Narayan Shukla
Bench: Narayan Shukla
Court No. - 3
Case :- RENT CONTROL No. - 75 of 2010
Petitioner :- Ashish Kumar S/O Late D.B. Saxena
Respondent :- Additional District Judge, Ayodhya Prakaran, Lucknow
Petitioner Counsel :- Sudhir Kumar Pandey
Respondent Counsel :- C.S.C.
Hon'ble Shri Narayan Shukla,J.
Heard Mr. Sudhir Kumar Pandey, learned counsel for the petitioner and the learned Standing Counsel. The petitioner has challenged the order dated 10.5.2010 passed by the opposite party no. i.e. Special Judge (Ayodhyaprakaran)/Additional District Judge, Lucknow; whereby the application "18-C" moved by the opposite parties 2 to 4 for substitution of their names in place of deceased Horilal has been allowed on the ground that deceased in compliance of original order of rent appeal has been evicted from the shop in question. The deceased moved application for re-entry, which was adjudicated upon by the prescribed authority and rejected by means of order dated 29.2.2008. The deceased challenging the said order filed rent appeal. During the pendency of the said application the deceased Horilal died leaving behind opposite parties 2 to 4. Opposite party no. 2 is employed in Sahara India, Lucknow and opposite party no.3 in Sonalika Tractor Company. It is further submitted that substitution of legal representative under section 34 (4) of the U.P. Act No. 13 of 1972 is permitted only two proceedings- (i) Proceeding for the determination of standard rent (ii) Proceeding for eviction from a building; whereas the present proceeding does not belong to the aforesaid proceeding, therefore, the application for substitution is not maintainable. In support of his contentions the learned counsel for the petitioner cited a decision of this Court rendered in the case of Allahabad Rent Case 1978, Mrs. Ratna Prasad Vs. The VIIIth Additional District Jude, Allahabad and others.
Upon perusal of the aforesaid decision, I find that the facts of the aforesaid case are quite different to the present case. In the aforesaid case though the allotment order was passed but the possession was not delivered. In the said case it has been held that applicant had not acquired status of tenant. In the said case the application for allotment was moved but the house was not allotted. However, since the application for substitution was put up for order, Rent Control and Eviction Officer allotted the house in favour of the applicant who had already died, therefore his wife and children moved application for substitution which was rejected. This court has held that the possession of house was not delivered to the applicant. In the meantime, he died, therefore, his legal heirs have not achieved the status of the tenant, accordingly rejected his application. Under the strength of the aforesaid decision, the learned counsel for the petitioner submits that in the present case also the tenant has already been evicted from the house in question and his application for re-entry has also been rejected. His legal heirs have no status of tenancy, therefore, the order passed by the Special Judge (Ayodhyaprakaran)/Additional District Judge, Lucknow on the application for substitution suffers from error and is liable to be quashed.
He also cited decisions of this Court rendered in the cases of Keshav Dwivedi and others Vs. Prescribed Authority, Lucknow, 1975 AlJ , 75 and Smt. Sabra Begum Vs. District Judge Meerut and others, AlJ 1983 , 65 on the point that the provisions of substitutions are not applicable in the present case. In the case of Ghannu Mal and others Vs. Additional District Magistrate (C.S) R.C.E.O., Lucknow and others (writ petition no. 92 of 2001) this Court has considered the provisions of Rule 25 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972 and held that legislature has protected the right of the legal heirs under Rule 25 of the Rules, 1972. Rule 25 of the Rules is as follows:-
"(1) Every application for substituting the name of (the heirs or legal representatives, the claimants or occupants) of any person who was a party to any proceedings under the Act and died during the pendency of the proceedings shall be preferred within one month from the date of the death of such persons.
(2) The application shall contain the names and addresses and other details of the heirs or legal representatives and their relationship with the deceased and be accompanied by any affidavit in its support, and thereupon, the application shall be decided after a summary inquiry by the authority concerned."
Upon perusal of the record it is evident that deceased Horilal in eviction proceeding through written statement has mentioned the names of his family members, in which opposite parties 2 to 4 were included.
In the light of Rules 25 of the Rules, 1972 the Additional District Judge, Lucknow has allowed the application for substitution on the ground that applicants have been shown as family members of the deceased and since Rule 25 protects their right, they have right to continue with the appeal after the death of deceased Horilal. So far as the consideration of their employment is concerned, this is not the stage of the same as only after bringing on record their need can be considered on the application for re- entry in the premises.
Upon perusal of the aforesaid Rule, I find that the application for substitution of legal heirs is permitted, accordingly the rights of the legal heirs of deceased (tenant) have been protected under the Rule itself, therefore, I do not find any error in the order dated 10.5.2010 passed by the Special Judge (Ayodhyaprakaran)/Ad ditional District Judge, Lucknow allowing the application for substitution. So far as the adjudication upon their rights of re-entry in premises on merit is concerned, I am of the view that the same shall be considered by the court as and when the application for re-entry is taken up for orders.
With the aforesaid observation/direction, the writ petition is dismissed.
Order Date :- 5.7.2010 GSY