Sarla Devi vs Pushpa Agnihotri

Dilip Gupta, J.—The petitioner filed a revision under section 18 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) feeling aggrieved by the orders passed by the Rent Control and Eviction Officer, declaring vacancy of the premises under section 12 (3) of the Act and then releasing the premises in dispute in favour of the landlord under section 16 (1) (b) of the Act. This revision was dismissed by the judgment and order dated 15th of May, 2008 which has been impugned in the present petition.

The Court has recorded a finding of fact that S.N. Saxena was the tenant of the premises in dispute and after his death, his widow and four sons became the joint tenants. Sri Rajiv Swaroop Saxena who became the joint tenant, subsequently acquired a house in the same city in the year 1997 which became vacant in 2004. The landlord then filed an application that vacancy had occurred under section 12 (3) of the Act as the joint tenant had acquired a house in the same city which fell vacant in the year 2004. After declaring the vacancy, the Rent Control and Eviction Officer released the accommodation in favour of the landlord. These two orders were impugned in the revision which has been dismissed.

Learned Counsel for the petitioner has placed emphasis upon the explanation contained in section 12 (3) of the Act which provides that 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. It is the contention of learned Counsel for the petitioner that Rajiv Swaroop Saxena who had purchased the property in the same city was neither dependent and nor was he normally residing with the tenant.

The contention of the learned Counsel for the respondent is that the explanation would not be attracted to the present case since the joint tenant had purchased another property in the same city and it is not a case where any member of the family of the joint tenant had acquired another house.

The Courts below have found as a fact that on the death of the original tenant S.N. Saxena, his widow and four sons became the joint tenants in view of the decision of the Supreme Court in Harish Tandon v. A.D.M., Allahabad (U.P.) 1995 (25) ALR 184 (SC). In such circumstances when a joint tenant acquire another property in a vacant state in the same city deemed vacancy would arise under section 12 (3) of the Act. The contention advanced by learned Counsel for the petitioner that Rajiv Swaroop Saxena was not dependent and was not normally residing with the tenant is misconceived because here it is the joint tenant who has acquired property and it is not a case where a member of the family of the joint tenant has acquired the property. In such circumstances, there is no merit in the contention advanced by learned Counsel for the petitioner.

Learned Counsel for the petitioner further urged that the landlord had earlier moved an application under section 21 (1) (a) of the Act for eviction of the tenant from the premises in dispute as he bona fide required it and though the application was allowed by the prescribed authority but the rent appeal filed by the tenant is pending disposal and during pendency of the appeal the landlord could not have filed another application for release of the building under section 16 (1) (b) of the Act.

This contention cannot be accepted because it is open to the landlord to file an application under section 21 (1) (a) of the Act and also file an application under section 12 (3) of the Act. The landlord cannot be compelled to wait till such time, as the appeal is decided. This view finds support from the decisions of this Court in Snkhant Gupta v. Rent Control and Eviction Officer, Kanpur and another 1991 (18) ALR 151, Naubat Rani Sharnia v. Additional District fudge IXth, Moradabad and others 1987 (13) ALR 654, and Munnilal v. Prescribed Authority, Agra and others 1992(20) ALR 820.

There is, therefore, no illegality in the impugned orders. The writ petition is, accordingly, dismissed. Copy of the order may be supplied to the learned Counsel for the petitioner within three days.