Durga Prasad vs Narayan Ram Chandaani

Sudhanshu Dhulia, J.

Mr. Vikas Bahuguna, Advocate, present for the petitioner.

Mr. Lokendra Dobhal, Advocate, present for the respondent.

This writ petition arises out of the proceedings under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from hereinafter referred to as "U.P. Act No. 13 of 1972"). The landlord i.e. respondent herein moved an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972, against the tenant, namely, Smt. Lalita Devi. The release application was dismissed by the Prescribed Authority vide order dated 19.04.2010.

Consequently, the landlord/respondent filed an appeal under Section 22 of the U.P. Act No. 13 of 1972. During the pendency of the appeal, tenant passed away on 06.07.2013. For the reasons best known to the landlord, he moved an application for substituting the present petitioner, who is admittedly the "brother" of the deceased. The application was allowed. Thereafter, the appellate court came to the conclusion that there is a bona fide need to the landlord and allowed the appeal of the landlord vide order dated 10.10.2014.

In view of this Court, a "brother" does not come within the definition of "family", as defined in the U.P. Act No. 13 of 1972. Section 3(2)(g) of the U.P. Act No. 13 of 1972 which reads as under:--

"3(2)(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 normal residing with him or her,

and includes, in relation to a landlord, any female having a legal right of residence in that building."

In view of the above provision since brother does not come within the definition of "family", there was no occasion for the landlord to move an application for substitution of the present petitioner. The appellate court also without appreciating the law on the subject straight away allowed the appeal of the landlord against which the present petitioner has filed this writ petition.

As far as the status of the present petitioner is concerned, it is no more than that of an unauthorized occupant, in view of Section 13 of the U.P. Act No. 13 of 1972, which reads as under:--

"13. Restrictions on occupation of building without allotment or release.- Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part."

The above provision of law has to be read with clause 4 of Section 34 of the Act No. XIII of 1972, which reads as under:--

"34. Powers of various authorities and procedure to be followed by them.-

(1)...................................................................

(2)...................................................................

(3)...................................................................

(4) Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of the proceeding, such proceeding may be continued after bringing on the record:--

(a) in the case of the landlord or tenant, his heirs or legal representative;

(b) in the case of unauthorized occupant, any person claiming under him found in occupation of the building.

(5)..................................................................

(6).................................................................

(7).................................................................

(8)................................................................"

Here an error has apparently been committed by the lower appellate court in first allowing the application, apparently under clause 4 of Section 34 of the Act No. XIII of 1972 without giving any finding that the petitioner is the legal heir or even legal representative of the deceased tenant. It is not the case of the present petitioner nor is any such averment been made before this Court in the petition that he was the legal heir or legal representative of deceased tenant. In any case, he not being the member of the family of the deceased tenant, his status presently would merely be of an unauthorized occupant. An unauthorized occupant of the premises has no right to the property and, therefore, cannot continue the lis even by virtue of his alleged possession.

The petitioner has absolutely no locus to file the present writ petition. He being an unauthorized occupant is liable to be evicted from the premises, since the only tenant of the premises passed away on 06.07.2013, admittedly, without leaving anyone on whom the tenancy could devolve.

As far as the impugned order of the lower appellate court dated 10.10.2014 is concerned the same being in violation of law is hereby set aside. The entire proceeding under Section 21 of the Act XIII of 1972 shall be considered to have abated on the death of the only tenant. The only procedure left for the landlord under these circumstances is to move a release application under Section 16 of the U.P. Act No. XIII of 1972, before the District Magistrate, Dehradun who shall consider the need of the petitioner and pass appropriate orders therein. The District Magistrate shall also take the possession of the vacant premises since the present petitioner is an unauthorized occupant and he has absolutely no locus in the matter. After taking the possession of the premises, the District Magistrate shall pass appropriate orders under Section 16 of the U.P. Act No. XIII of 1972 on the release application of the landlord, without further delay in the matter preferably within three weeks from the date a certified copy of this order is presented before him.

The writ petition stands dismissed with the above observations and direction. No orders as to costs.