Saiful Islam vs Addl. District Judge and Others

Shishir Kumar, J.—This writ petition has been filed for quashing the orders dated 1.5.2008, 9.6.2009 and order dated 5.11.2009, passed by respondent Nos. 2 and 1 respectively (Annexures-4, 6 and 8 to writ petition).

The dispute is relating to Premises No. 10, Chowk, Allahabad which was let out to Sri Abdul Wasey s/o late Mohammad Sadiq by the father of respondent No. 3. Sri Abdul Wasey died in November, 1996. On his death tenancy of shop jointly devolved upon his widow Smt. Anisa Khatoon and petitioner being son of real brother of late Sri Abdul Wasey. After the death of Abdul Wasey and the widow of late Sri Abdul Wasey, petitioner inherited the tenancy rights of the shop in dispute. In February, 2005, after the death of Smt. Anisa Khatoon, petitioner became the sole tenant of the shop in dispute. This fact was informed to respondent No. 3 that he is the sole tenant now and offered him rent but it was refused by respondent No. 3.

A notice dated 5.5.2005 was given to respondent No. 3 and rent was also remitted. An application u/s 16(1)(b) of the Act No. 13 of 1972 was filed by respondent No. 3 alleging that since Smt. Anisha Khatoon died and she has wrongly inducted Saiful Islam, her nephew in question and he is not member of the family of original tenant, therefore, he is occupying the said shop unauthorisedly and there is a deemed vacancy and the same may be released in his favour. After calling report from Rent Control and Eviction Officer, it was stated that Saiful Islam s/o Farkhrul Islam was found at the shop in dispute who alleged to be stated that late Abdul Wasey was his uncle.

An objection was filed and it was submitted that according to Muslim Law inheritance being son of real brother of Abdul Wasey who was the chief tenant, petitioner inherited the tenancy right. Evidences to that effect was also filed to show that Abdul Wasey was his real uncle. Rent Control and Eviction Officer vide its order dated 1.5.2008 has declared the vacancy and treated petitioner to be unauthorised occupant holding therein that in view of provision of Section 3(g) of the Act, petitioner will not come under the definition of ''family'', therefore, he will be treated to be unauthorised occupant.

Further submission has been made by learned Counsel for petitioner that respondent No. 2 has committed an error apparent on the face of record that petitioner has not filed any document to show therein that he is nephew of late Sri Abdul Wasey. Petitioner has proved his case before the authority below that at the time of inspection he was in the shop and doing business but respondent has not considered the same. Therefore, an application for review was filed. Review application was rejected and premises in dispute was released by order dated 9.6.2008. Petitioner aggrieved by aforesaid order filed a revision but revision has also been dismissed confirming the finding recorded by Rent Control and Eviction Officer. A submission has been made by learned Counsel for petitioner that in spite of submission of various documents to show therein that petitioner according to personal law will inherit the tenancy rights being nephew of Abdul Wasey, therefore, he was entitled to inherit the tenancy. According to definition of ''family'' mentioned in Section 3(g) of the Act, petitioner being family member is entitled to retain the said shop and cannot be treated to be an authorised occupant. The court below has committed an error on the face of record declaring the vacancies in favour of respondent No. 3. A document to this effect was submitted showing therein that petitioner who is nephew of Abdul Wasey and after his death, he will inherit the tenancy because he was normally residing with his aunt but Rent Control and Eviction Officer as well as revisional court has not'' considered the said aspect of the matter and declared the vacancy as well as the shop in question has been released in favour of respondent No. 2. A submission has been made that petitioner being Muslim is entitled to get benefit of his personal law and the definition of ''family'' as defined under the personal law will be applicable, therefore, petitioner will inherit the tenancy right immediately after the death of his aunt Smt. Anisa Khatoon. Reliance has been placed upon various judgments of this Court which are quoted as under:

New India Assurance Co. Ltd. Vs. Ram Charan and Others,

A combined reading of the abovenoted statutory provisions reveals that an heir, to be determined in accordance with the personal law of the tenant concerned, may be the member of the family or not within the meaning of the term used under the Act, can be permitted to reside with the chief tenant during his lifetime inasmuch as the tenancy right could be inherited only by the heir or heirs who normally resided with the tenant at the time of his death in the disputed building. The induction of the heir in the building, therefore, will not cause vacancy within the meaning of the term used under the Act. Any interpretation, to the contrary, would render the abovenoted provisions redundant, or contradictory to each other an unworkable inasmuch as if the induction of an heir results in vacancy, Section 3(a)(1) and Clause (b) of Sub-section (1) of Section 12 would become contradictory to each other inasmuch as the spirit/object of the Act is that the heirs of the tenant shall inherit the tenancy right, may be members of his family or not, and unless and heir is permitted to reside in the building in question sometime before the death of the tenant, he cannot be said to have resided normally with the deceased tenant at the time of his death. The induction of an heir, therefore, will not cause vacancy in the building. Any interpretation, to the contrary, would result in conflict in the provisions of the Act. The said provisions are, therefore, to be harmoniously interpreted.

In view of the aforesaid decisions, it can easily be held that by allowing an heir to occupy the building even if he is not member of his family, no vacancy shall be caused in the building. In the present case, the authority below has erred in law and committed a mistake which is apparent on the face of the record in holding that by induction of the petitioner by the deceased tenant resulted in vacancy in the building in question, particularly when it was not disputed that the petitioner was the real brother and only heir of the deceased tenant. Thus, in my opinion, neither on induction of the petitioner in the building in question nor on the death of the original tenant, the building in question fell vacant. This writ petition, therefore, deserves to be allowed.

Munni Lal v. Smt. Shiv Dei and Ors. 1981 ARC 6:

A married daughter residing with her parents would be a heir of the tenant within the meaning of Section 3(a) of the Act irrespective of whether or not she would be regarded a member of the family as defined u/s 3(g).

There is no warrant for giving to the word "heir" as occurring in Section 3(a) a restricted meaning of limiting it to the members of the family of tenant as defined in Section 3(g).

Therefore, a married daughter becomes an heir within the meaning of Section 3(a) of the Act by virtue of her residence with her parents in their life time. Merely because the married daughter has been allowed to reside with her parents, she could not be deemed to have occupied the accommodation. There is, therefore, no such anomaly in the application of the different provisions of the Act, if it is held that a married daughter who was residing with her parents, is an heir of her parents within the meaning of Section 3(a) of the Act. Therefore, Section 12(1)(b) of the Act is not attracted because the accommodation cannot be treated to be vacant.

Smt. Dr. Kamla Pandey v. IVth Additional District and Sessions Judge, Agra and Ors. 1998 ACJ 833:

From the above definition it is crystal clear that as the accommodation in question was being used for non-residential purpose, therefore, after death of Rajendra Prasad Pandey, the original tenant, his heirs will become tenant.

After analysis of all the aforesaid provisions it is apparent that the tenant''s interest is paramount under the Act while considering the release and allotment matter. Now it has to be seen as to who were the tenants after the death of the original tenant Rajendra Prasad Pandey. The contention of respondent No. 2 in the written statement is that the father and so were both carrying on one and the same business, therefore, after death of father, the son becomes the sole tenant as it was single tenancy. This fact is denied to the petitioner. It is stated on behalf of the petitioner that father was the sole tenant and after his death the tenancy devolved on all the heirs of the father.

Om Prakash and Ors. v. Prescribed Authority and Ors. 1984 (2) ARC 634:

In view of the clear and specific meaning of the word "heir" what has to be seen is whether the petitioners would inherit the properties of Ganpat Ram (assuming that he was the original tenant). Succession to the property of a Hindu dying intestate has been indicated in the Hindu Succession Act, 1956. Section 8 of the said Act provides that the property shall devolve upon the heirs specified in Class I of the Schedule and if there was no heir of Class I then upon the heirs specified in Class II and so on. A grandson in the life time of his father would not inherit the properties of the grandfather dying intestate. Tenancy right is immovable property. It is heritable as any other immovable property.

On the death of Ganpat Ram (assuming that he was the original tenant), the tenancy right would devolve upon his heir in accordance with the provisions of the Hindu Succession Act and consequently Chhotu Ram alone, in his capacity as son and heir of Ganpat Ram, would become the tenant of the premises in question. The petitioners in their capacity as grandchildren of Ganpat Ram would not inherit the tenancy right in the presence of their father, Chhotu Ram. In any case since it was at no time pleaded that the petitioners alongwith their father and grandfather constituted a joint Hindu Family, it is not required of me to look to the provisions of Section 6 of the Hindu Succession Act under which the interest of the deceased devolves upon the surviving members of coparceners. The Prescribed Authority, therefore, does not appear to have committed any error in rejecting the application of the petitioners on the ground that they have not inherited tenancy rights and that they were not necessary parties to the proceedings u/s 21 of the Act.

Placing reliance upon all these judgments learned Counsel for petitioner submits that in view of definition of ''family'', it is not relevant for the purposes of determining the question as to who would become tenant on the death of original tenant. The definition of family has been defined u/s 3(g) with specific purpose of remitting the consideration of need and hardship of person specified in the definition. The petitioner being nephew of Smt. Anisa Khatoon, comes under the definition of family and he will inherit the tenancy. Therefore, judgment and order passed by court below is liable to be quashed.

On the other hand, Smt. Sunita Agarwal, learned Counsel appearing for respondents submits that petitioner being nephew does not come under the definition of ''family'' as defined u/s 3(g) of the Act. The personal law in view of fact that family is defined under the Act and proceeding is governed under a particular Act, therefore, personal law being not applicable, no benefit can be given to petitioner of the personal law and he has to be governed within the meaning of family defined u/s 3(g) of the Act. Admittedly, petitioner has not been able to prove from the record that he is nephew and was normally residing with his aunt and uncle. The burden has not been discharged, therefore, no benefit can be given. Admittedly after death of original tenant, tenancy devolved upon his widow who vide its letter dated 2.12.1996 requested to continue the tenancy in her name and at that time petitioner was never in picture. For the first time after the death of Smt. Anisa Khatoon, petitioner claim tenancy right vide notice dated 5.5.2005. Respondent No. 3 refused to accept the status of petitioner and moved an application for release. A plea was taken by petitioner that tenancy right be continued in his name after the death of Smt. Anisa Khatoon who was his aunt and submitted that during her life time, though rent was being paid by him but the receipt was being taken in the name of his aunt in order to avoid any doubt in the mind of his aunt namely Smt. Anisa Khatoon. From this fact and averment made by petitioner, it is clear that original tenant has never accepted him as heir of original tenant and has never permitted him to occupy the premises as tenant or co-tenant. Tenancy right was never devolved upon petitioner. After death of Smt. Anisha Khatoon no receipt was ever issued to petitioner and rent was never accepted. Petitioner being an illegal occupant of the premises in dispute wanted to grab the property of respondent No. 3. The answering respondent has never accepted petitioner as tenant and petitioner has failed to prove before the court below, therefore, the order passed by court below treating the petitioner unauthorised occupant is justified and based on evidence on record. Now premises in dispute has already been released in favour of respondent No. 3 for his bona fide need.

Respondent has placed reliance upon the following judgments which are quoted below:

Jaspal Singh v. A.D.J., Bulandshahr and Ors. 1985 (1) ARC 1 (paras 8 and 9):

This leads us to the next contention that the appellant is a tenant within the meaning of Section 3(a) of Act No. 13 of 1972:

In this Act, unless the context otherwise require :

(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 nonresidential building, his heirs ;

The appellant would be a tenant within the meaning of Section 3(a) only when he is an heir. The appellant is not a son but only a nephew of Naubat Singh. He, however claims to be an heir on the basis of a will executed by Naubat Singh conveying all his rights and properties including the tenancy rights in respect of the disputed shop in his favour and that he had been helping Naubat Singh in his business for the last several years and continued to remain in possession of the shop even after the death of Naubat Singh. Accordingly he was entitled to the benefit of Section 14. We have already dealt with the question whether the appellant was entitled to the benefit of Section 14 as it stood prior to its amendment in 1976 and also of the amended provisions of Section 14 and we have negatived the contention of the appellant. Therefore, the precise question for consideration would be whether the appellant is an heir within the meaning of Section 3(a) on the basis of the Will executed in his favour by Naubat Singh. There seems to be a cleavage of opinion on this point in various High Courts. The Allahabad High Court in Smt. Rukmani Devi v. IIIrd Additional District Judge, Kanpur 1977 ARC 72 and Munni Lal v. Smt. Shiva Devi 1981 ARC13, held that the question as to who are heirs of the deceased tenant will be decided in accordance with the personal law of the tenant, as this Act does not lay down the list of heirs on whom the tenancy should devolve. In some of the Rent Control Acts list of the heirs has been specified for the purpose of devolution of tenancy on the death of the tenant. A Division Bench of the Punjab and Haryana High Court in Gulzara Singh v. Smt. Tej Kaur on the other hand held:

Generally speaking ''heirs'' are those persons whom the law declares to be entitled to the estate of a deceased person, and in common legal parlance the word ''heir'' like the expression ''heir in law'' undoubtedly connotes and is suggestive of a person who succeeds to the estate in case of intestacy under the statutes of succession. But in common speech this word is also not infrequently used to indicate those who come in any manner to the ownership of any property by reason of the death of the owner or persons upon whom the property devolves on the death of Anr. either by law or by Will.

In other words, it is indicative of persons entitled by Will or otherwise to share the estate of the deceased. It is thus true that technically the word ''heir'' may be distinguishable from the word ''legatee'' but it is also at times used in its more general and comprehensive sense as indicating the person upon whom the property devolves on the death of another and hence when the intent is clear the word ''heir'' may well be treated as equivalent to ''Legatee'' or ''devised''. The true scope, effect and significance of this word is, therefore, in all cases a question of intention which has to be determined principally on a consideration of the objection and purpose of the statute in which it is used.

Thus, the word ''heir'' has been construed both in a wider as well as in a narrower sense. Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs. This will also raise an allied question whether the tenancy rights could be devised by a Will. It will be relevant at this stage to refer to material provisions of the Act.

The word ''family'' has been defined in Section 3(g) of the Act:

(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, grand-parents 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 a legal right of residence in that building ;

Section 11 deals with the prohibition of letting without allotment order. It reads:

Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued u/s 16.

Section 12 deals with a deemed vacancy of building in certain cases and reads:

(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if--

(a) he has substantially removed his effects therefrom, or

(b) he has allowed it to be occupied by any person who is not a member of his family, or

(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.

(2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner : as the case may be the tenant shall be deemed to have ceased to occupy the building.

Section 13 provides for restrictions on occupation of building without allotment or release and reads:

Where a landlord or tenant cease, 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 u/s 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.

Section 15 casts an obligation on the landlord or the tenant to intimate vacancy to the District Magistrate. Section 16 deals with allotment and release of a vacant building. Section 20 puts a bar of suit for eviction of a tenant except on specified grounds enumerated therein.

From a survey of these provisions will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant. There are restrictions in the case of a residential building that the tenant will live only with the members of his family and after he has allowed the same to be occupied by any person who is not a member of his family, the tenant shall be deemed to have ceased to occupy the building. In the case of a non-residential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. If a tenant sublets the premises, he is liable to ejectment. Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members. He obviously cannot be allowed to transfer a tenancy right. A fortiori, the scheme of the Act, does not warrant the transfer of the tenancy right to be effective after his lifetime. Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the original tenant. Besides, on a plain reading of the Will it is evident that the Will has been executed in respect of other properties including his business but not in respect of the tenancy rights. The High Court also recorded a finding to the effect that there was no Will in respect of the tenancy rights of the disputed shop.

Ram Nath Yadav v. Rent Control and Eviction Officer, Allahabad and Ors. 1994 (2) ARC 1 : 1994 (3) AWC 1419:

The important question which arises for determination in this case is as to whether the word ''family'' which has been used in Section 12 of the Act will have a different meaning that what had been given to the word ''family'' in Section 3(g) of the Act. The Supreme Court in the case of Mohd. Azeem Vs. District Judge, Aligarh and Others, has held in paragraph 9 of the aforesaid report that in definition of the word ''family'' reference to personal law is irrelevant. In paragraph 11 of the aforesaid report the Supreme Court has taken the statutory definition of ''family''. The definition of family has been given in the Act itself. The same has to be treated as exhaustive and in our opinion it is not open to the Court to bring any person other than those not mentioned in the definition. In this connection a reference to Rule 10(6) will also be useful:

10(6) A person who is deemed to have ceased to occupy a building within the meaning of Section 12(1)(b), or who is evicted u/s 21 by virtue of being a tenant referred to in Explanation (1) of Section 21(1) shall not be allotted that or any other residential building and a person who is deemed to have ceased to occupy a building within the meaning of Section 12(2), shall not be allotted that or any other non-residential building for a period of two years from the date of such eviction or deemed cessation, as the case may be:

Provided that:

(a) If the District Magistrate is satisfied in a case referred to in Section 12(2) that the admission of partner or new partner is bona fide transaction and not a mere cover for Sub-letting, he shall, if any, application had been made in that behalf before the admission of such partner or new-partner, allot the nonresidential building in question afresh to the newly constituted or re-constituted firm.

(b) In the case of a residential building under the tenancy of a person who shall be deemed by virtue of Section 12(3) to have ceased to occupy it by reason of his or any member of his family building or otherwise acquiring in a vacant state or getting vacated another residential building in the same local area, whether that other building is built or acquired or got vacated, before or after the date of commencement of the Act, if the District Magistrate is satisfied that the two buildings are occupied by the tenant and a member of his family separately, and that they are separate in messing, the District Magistrate may reallot the residential building deemed to be vacant u/s 12(4) to the said tenant or to the said member of his family, as the case may be.

(c) In the case of a residential building under the tenancy of a person who shall be deemed by virtue of the proviso to Section 12(3) to have ceased to occupy it upon the expiration of a period of one year from the date of commencement of the Act by reason of his or any member of his family having built another residential building in the same local area, where that other building was let out at the commencement of the Act and the tenant or the member of his family, as the case may be, has been unsuccessful in spite of his best efforts in securing vacant possession thereof the District Magistrate may postpone the making of allotment order in respect of the building deemed to be vacant u/s 12(4).

From the aforesaid Rule 10(6)(a) it is clear that in case the admission of a partner or a new partner is a bona fide transaction and not a mere cover for subletting, the District Magistrate, if any, application has been made in that behalf before the admission of such partner or new partner, allot the non-residential building in question afresh to the newly constituted or reconstituted firm. The District Magistrate will exercise the power conferred on him u/s 10(6)(a) of the Act keeping in view the guiding principle given in this provision.

Harish Tandon v. A.D.J., Allahabad 1995 (1) ARC 220 : 1995 (1) AWC 106 (SC):

The Apex Court after considering the definition of ''family'', has ruled that definition of the family defined under the Act cannot be expanded and son-in-law cannot be treated as member of family. Further reliance has been placed on the following judgments the same is being quoted below:

Babu Ram alias Babu Lal v. A.D.J. (Special Judge), Rampur and Ors. 1995 (2) ARC 594 : 1996 AWC (Supp) 480:

In Hardev Singh Vs. State of Punjab, it was ruled by the Hon''ble Supreme Court that meaning and term of family as defined under the Act cannot be expanded and son-in-law cannot be treated as member of family. In Mohammad Azam''s case 1985 ACJ 118 (SC) : 1985 (2) ARC 85 (SC), it was held that for the purpose of definition of the family the reference of personal law was irrelevant.

Thakurdeen v. Smt. Hero Devi and Ors. 1984 (2) ARC 117:

It must be remembered that the Act applies to all communities in the State and not to Hindu only. Any interpretation of Section 3(g) should not, therefore, depend on the circumstances as to whether a person belongs to a particular community or not.

Rajendra Nath Tripathi and another Vs. Jagdish Dutt Gupta and another,

The question is whether the nephew can be held to be a member of family as defined u/s 3(g) of U.P. Act No. XIII of 1972. The definition does not cover nephew as a member of the family of the landlord-tenant. A nephew has no independent right to occupy an accommodation let out to his uncle. If the uncle has passed on possession to him, the tenant shall be deemed to have sub-let in view of provision of Section 25 read with Section 12(1)(b) of the Act.

Jai Kishan Paliwal v. A.D.J., Moradabad and Ors. 1981 ARC 79 :

6 The first question that was raised by the learned Counsel that Section 12(3A) being prospective the authorities below committed error in holding, the house to be vacant on the basis of the transfer of the petitioner which took place in 1975. In Writ Petition No. 750 of 1979 Khubi Singh Yadav v. District Magistrate, Allahabad, decided on 21.1.1980, a Full Bench of this Court has held that the aforesaid provisions were prospective and would apply where a tenant had been transferred after July 5, 1976. The learned Counsel, therefore, is right in arguing that Section 12(3A) could not apply to the present case. The vacancy had not been declared on the basis of Section 12(3A) but on the ground of Clauses (a) and (b) of Sub-section (1) of Section 12. The two authorities concurrently held that the petitioner had allowed the house to be occupied by the persons who were not the members of his family. The petitioner himself admitted that the house was in occupation of some of his relations but had claimed that these relations were living as caretakers. In this regard, the further assertion was that the wife of the petitioner had also been residing in the house. Both of these pleas were repelled by two Courts. They found that the petitioner could not place any evidence on record to show that this children were getting education at Moradabad. On the basis of this circumstances, the Rent Control and Eviction Officer held that the members of the family of the petitioner were not living in the disputed house. It has further been found by the Rent Control and Eviction Officer that the admitted position was that the nephews of the petitioner had been living in this accommodation. This proved that they, not being members of the family as defined in Section 3(g) of the U.P. Act No. 13 of 1972, had been kept in violation of Section 12(1)(b) and Section 12(1)(c). Accordingly, the house was rightly declared to be vacant.

Inderjeet Saluja v. S.D.M., R.C. and E.O., Roorkee, Hartdwar and Ors. 2004 (3) ARC 639:

Briefly stated the facts of the case are that the dispute relates to a shop situated on a ground floor bearing Municipal No. 34/1 Mohalla Sot, Kabari Bazar, Tehsil Roorkee, district Hardwar. The petitioner has submitted that he is in occupation of the premises and previously the shop was in the tenancy of Mela Ram, maternal grandfather of the petitioner and since he was not having any male issue and was living as a family member, and therefore, Mela Ram has executed a Will in favour of the petitioner on 11.11.1970.

The proceedings for vacancy were started u/s 16(1) of U.P. Act No. 13 of 1972. The Rent Control Inspector was deputed to inspect the premises. The Rent Control and Eviction Officer thereafter after hearing the parties has declared the vacancy on the ground that the original tenant has no right to execute a Will.

In Ishwar Chand Vs. Additional District Magistrate (Civil Supply)/R.C.E.O., Kanpur Nagar and anohter, it has been held that the tenant has no right to execute the Will. It has been held as under:

Learned Counsel for the petitioner contended that Ram Sahodar had executed a Will in favour of the petitioner on 20.2.1987 and he is entitled to inherit the tenancy rights on the basis of the Will. It is settled law that tenancy rights cannot be transferred by a Will in favour of any person vide Ratan Lal v. Additional District Judge, Bulandshahr and Ors. 1979 ARC 251; Devendra Kumar v. IIIrd Additional District Judge and Ors. 1980 ARC 519 and Abhinandan Prasad Jain v. District Judge, Saharanpur and Ors. 1982 (1) ARC 708

The Rent Control and Eviction Officer therefore, has rightly declared the vacancy, as the petitioner has no legal status to occupy the premises within the meaning of Section 3(g) of U.P. Act No. 13 of 1972.

Placing reliance upon the aforesaid judgments, learned Counsel for respondents submits that the court below has rightly declared the property in dispute as vacant and has held that petitioner has failed to prove that he is a nephew and also failed to discharge his burden to that effect. Admittedly, petitioner was never in picture and Smt. Anisa Khatoon vide its letter dated 2.12.1996 requested to continue the tenancy in her name. For the first time after the death of the widow of the original tenant, petitioner claimed tenancy right vide notice dated 5.5.2005. In such circumstances, learned Counsel for respondents submits that order of vacancy and release of property has rightly been made by court below after recording a finding that petitioner does not come under the definition of ''family''.

I have considered the submissions on behalf of parties and have perused the record.

Admittedly, from record, it is clear that Abdul Wasey died in the year 1996 and a request was made by the wife to transfer the tenancy in her name and to issue rent receipts. Smt. Anisa Khatoon died in the year 2005. This fact came only on the basis of letter sent by petitioner dated 5.5.2005, claiming himself to be nephew and claiming tenancy right in the shop in question after the death of his Aunt. The respondent immediately made an application for declaring the vacancy and subsequently for release of the said accommodation. The Rent Control and Eviction Officer has recorded a finding that in view of fact, the petitioner will have no right at the life time of Smt. Anisa Khatoon in view of fact that Anisa Khatoon has requested to transfer the tenancy in her name. In case, petitioner was doing business in that particular shop he should have informed this fact or Smt. Anisa Khatoon after the death of her husband should have informed this fact. A finding has been recorded after taking into consideration the definition and meaning of ''family'' as provided u/s 3(g) of the Act that petitioner is not a family member of the original tenant. A finding has also been recorded that there is no evidence to prove that petitioner is nephew of original tenant Sri Abdul Wasey. The question for consideration by this Court is that whether petitioner can be given benefit of the fact that he is a member of the family in view of the fact that he is not son of the original tenant. From the perusal of Section 3(g) of the Act No. 13 of 1972, the definition of family is defined 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 ; and

(iii) such parents grand-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as residence in that building.

From the perusal of the aforesaid definition, it is clear that persons defined under the aforesaid definition will include in the family or as may have been normally residing with him or her. It is not the case of petitioner that he was normally residing with original tenant and was looking after the business of Smt. Anisa Khatoon after the death of his uncle. From the perusal of Sub-section (b) of Section 12 it is clear that building will be treated to be vacant as soon as it has been allowed to be occupied by any person who is not a member of his family. From perusal of the provision, it does not appear that nephew comes under the definition of ''family'', unless and until it is proved from the record that he normally resides with the original tenant. The cases cited by petitioner relating to that if, in case, of death of original tenant, their heirs will devolve the tenancy. In Deo Narain''s case (supra), the question was relating to that petitioner who was the real brother of chief tenant, was found that he was normally residing with tenant at the time of death. In that situation this Court has held that he will inherit the tenancy. In Munnilal''s case (supra) this Court was dealing relating to the definition of Section 3(a) and Section 3(g), in that circumstances, this Court has held that in case married daughter residing with her parents would be heir of the tenant with the meaning of Section 3(a) of the Act irrespective of whether or not she would be regarded a member of family as defined u/s 3(g). The word ''heir'' has been constituted in a wider term as well as in a very narrow sense. It will be applicable upon the facts of a particular case and will depend upon the intention and scheme of a particular legislation in which questions occur. The Apex Court after considering various sections and provisions of Section 3(g), Section 11, Section 12(1) and (2) and other provision of Act has held that restriction have been placed by the act on the right of tenant to transfer or sublet the tenancy rights and it can keep possession of the building and premises for himself and for the purposes of his family. The petitioner cannot be allowed to continue in occupation of the premises in question and it does not come within the meaning of heir u/s 3A of the Act and therefore, the tenancy cannot be transferred or devolved upon him who is claiming himself to be nephew of the original tenant. From perusal of various pronouncement of this Court as well as the Apex Court, it has been held that definition of family adopted by Legislature u/s 3(g) of the Act is absolutely justified and cannot be said to be arbitrary definition. In Ram Nath Yadav''s case (supra) it has been held that word ''family'' used in the Sections 12(1)(b) and 12(2) of the Act should be given mention as defined u/s 3(g) of the Act.

It must be remembered that the Act applies to all communities in the State and not to Hindu or a particular community only. Any interpretation of Section 3(g) should not, therefore, depend on the circumstances as to whether a person belonging to particular community or not. The contention of learned Counsel for petitioner that being of a Muslim community petitioner is entitled to be governed by the personal law, cannot be accepted because if a proceeding is governed under a particular Act, then the provision of that Act can only be made applicable and the personal law will not come in play for the purpose of any benefit to any particular community. Petitioner has to be governed on the basis of the family definition mentioned under the Act. He cannot suggest that being a Muslim he is entitled to get the benefit of definition of family as provided under the Muslim law. In Rajendra Nath Tripathi''s case (supra), the Court has held after clarifying of provision of Section 3(g) that nephew does not come under the definition of family of the tenant because he is not having an independent right to occupy the building which has been lay out to his uncle and if the possession has been delivered, it will be treated to be subletting.

In view of various decisions as well as from the perusal of the definition of the family, in my opinion, the court below was justified to hold that petitioner has failed to prove from the record that he is a nephew of the original tenant and was normally resides with Smt, Anisa Khatoon and was looking after the business. Further in view of the definition of the family, he is not covered under the definition, as such, cannot get any benefit, being nephew of the original tenant. Taking into all these considerations of the fact, in my opinion, courts below was justified in declaring the vacancy as well as subsequently releasing the accommodation in favour of respondent.

In my view, no illegality has been committed. The order passed by court below is just, proper and valid, therefore, the writ petition is hereby dismissed, however, without imposing any cost.