Jaspal Singh vs Radhey Shyam Sharma and Others

Prafulla C. Pant, J.—By means of this petition, moved under Article 227, read with Article 226 of the Constitution of India, the petitioner has sought direction quashing the order dated 6.1.2002 passed by respondent No. 3, the Rent Control and Eviction Officer, Haridwar, whereby he has declared vacancy in respect of the room in question.

Brief facts of the case, as narrated in the petition, are that, petitioner''s father Sardar Gyan Singh used to reside in the premises in question as a tenant of respondent No. 2, Respondent No. 1 moved an application u/s 16 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for allotment of premises in his favour. The Rent Control Inspector submitted his report on said application on 4.7.2000, according to which the room was found locked. It was further reported by the Inspector that Sardar Gyan Singh had already constructed a house in the same lane. It is alleged in the petition that Rent Control Inspector did not issue mandatory notices, as required by Rule 8 (2) of U, P. Act No. 13 of 1972, prior to the inspection of the premises. Respondent No 2 (the landlord) informed the Rent Control and Eviction Officer that original tenant Sardar Gyan Singh has expired on 1.1.2001 and, as such, the building is lying vacant. However, petitioner opposed the application for declaration of vacancy and claimed his occupation as tenant in the room. Respondent No. 3 passed the impugned order after hearing the parties and declared the vacancy. Aggrieved by said order, this petition has been filed by the petitioner on the ground that he was residing in the premises in question from the life time of his father, Sardar Gyan Singh, and, on death of Sardar Gyan Singh, the petitioner is the sole tenant of the premises and separate residence acquired by Sardar Gyan Singh has no effect on the tenancy of the petitioner.

A counter-affidavit has been filed on behalf of respondent No. 2, Sri Purshottam Lal Bhargava, who has stated that the petitioner has no locus standi in the proceedings as original tenant Sardar Gyan Singh was not residing in the premises in question at the time of his death. It is further stated in the counter-affidavit that Sardar Gyan Singh along with his family was residing in a separate house built by him in the same locality, known as Prakash Bhawan. As to the compliance of Rule 8 (2) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, it has been stated that the inspection was made in the presence of landlord and two independent witnesses and the room was found locked by the Rent Control Inspector. It is further stated in the counter-affidavit that petitioner cannot claim tenancy when his father himself left the accommodation in question and was no more a tenant at the time of his death. Defending the vacancy declared in the light of provisions of Section 12 (1) (c) of the U. P. Act No. 13 of 1972, respondent No. 2 has stated that the vacancy was rightly declared and the petitioner does not come within the definition of word ''tenant'', as defined u/s 3 (a) (1) of the said Act.

I heard learned Counsel for the parties arid perused the record.

Before further discussion, it is necessary to mention here the definition of ''tenant'' contained in U. P. Act No. 13 of 1972, which reads as under :

"Section 3 (a), ''tenant'', in relation to a building, means a person by whom its rent is payable and on the tenant''s death.

(1) In case of residential building such only of his heirs as normally residing with him in the building at the time of his death;

(2) In case of non-residential building, his heirs.

Explanation. -- An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant."

In view of the aforesaid definition, it is clear that a person can claim to be tenant on the death of the original tenant, if he, as his heir was residing with the deceased in the building at the time of his death. In the present case, it is clear that Sardar Gyan Singh (father of the petitioner) has already shifted in the new building constructed by him in the same lane where the disputed room is situated. An extract of assessment of house tax register of the Nagar Palika, which is Annexure-CA-2 to the counter-affidavit, and obituary intimation as contained in Annexure-CA-1 to the counter-affidavit, establishes this fact. It is also clear from the report of the Rent Control Inspector as well as the affidavits filed by the parties before this Court that the room was found locked at the time of inspection.

Learned Counsel for the petitioner argued that unless the finding is there to the effect that the petitioner was not living with his father at the time of his death, vacancy cannot be declared. In this connection, my attention was drawn to the Explanation ''b'' Sub-section (3) of Section 12 of the U. P. Act No. 13 of 1972. The said Explanation reads as under :

"(b) the expression any member of family in relation to a tenant shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant."

I may mention here, that Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 makes provision relating to deemed vacancy of a building and its Clause (c) of Sub-section (1) provides that a landlord or a tenant of a building shall be deemed to have ceased or occupy building or a part thereof, if in a case of residential building, he as well as the members of his family has taken up residence, not being temporary residence, elsewhere. Reading of Section 12 as a whole with the facts of this case, makes it clear that there is deemed vacancy as, admittedly, Sardar Gyan Singh was the original tenant and before his death he had already built the house elsewhere in the same lane of the municipal area, and had shifted there before his death.

Another ground which justifies the impugned order passed by the Rent Control and Eviction Officer is this that originally the present proceedings u/s 16 were initiated during the life time of Sardar Gyan Singh, the original tenant and the petitioner being his son can only enter into his shoes as an heir after his death. The petitioner got himself substituted as an heir in the said proceedings, but since Sardar Gyan Singh has lost his right to continue as a tenant, in view of the fact, that he had shifted in a self-acquired building elsewhere, the petitioner cannot claim better right than that of his father.

In Prem Narayain Tripathi v. Rent Control and Eviction Officer/Addl. City Magistrate Second, Kanpur Nagar and Ors. 1997 (1) ARC 33 it has been held that a tenant acquiring another residential building in the same city ceases to occupy building under tenancy by operation of law and, as such, the building which he was occupying as tenant is deemed to be a vacant building. Similar view has been expressed in Jagdish Prasad Srivastava Vs. Xth Addl. District and Sessions Judge, Kanpur Nagar and others, in which case it has further been held that if the father shifts in his newly constructed building, son cannot be taken as a tenant in his own right in the tenanted accommodation earlier held by his father.

In view of the aforesaid discussion, there is no infirmity or illegality in the impugned order, whereby the vacancy has been declared in respect of premises in question. Therefore, the petition is liable to be dismissed and the same is dismissed. No order as to costs.