Citation Codes

Equivalent Citations

citation codes

Case Number

C.M.W.P No. 37152 of 1998

Attorney(S)

Sri L.P. Singh
Advocate
for Petitioner. SC
for Respondents.

Judges

R.H Zaidi, J.

Acts

Section 16 read with Section 12 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for short, the Act
Section 3(a)(1) and clause (b) of sub-section (1) of Section 12
Code of Civil Procedure, 1908 (Act No. V of 1908),
ARTICLE 226 CONSTITUTION OF INDIA
Section 3(g)

See more information ...

Smart Summary

Structured Summary of the Opinion (R.H. Zaidi, J.)

Factual and Procedural Background

The petitioner approached the Court by a writ petition under Article 226 of the Constitution of India seeking quashing of an order dated 31.10.1998 by respondent No.1 which declared the building in question vacant. The property is identified as building No. 86/382, Deo Nagar, Kanpur. The original landlord was Sri Jagdamba Prasad Awasthi and the chief tenant was late Suraj Prasad alias Chhedi.

The petitioner had been permitted to reside in the building by the chief tenant (with an initial reference in the record to being permitted in 1955). Proceedings were initiated under Section 16 read with Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Rent Control Inspector inspected the building and, by a report dated 29.05.1998 (Annexure-3), stated that the petitioner was in occupation but was not a member of the tenant's family. Notices were issued; evidence (oral and documentary) was produced before the Rent Control and Eviction Officer; the Officer concluded the petitioner had been inducted in 1978 and was not a family member, and on that basis declared the building vacant by the impugned order dated 31.10.1998.

The petitioner contested that he was the real brother and heir of the deceased tenant and had been "normally residing" in the building at the time of the tenant's death, thereby inheriting tenancy rights. Respondents contended the petitioner was inducted in 1978, was not a member of the family, and that Section 12(1)(b) of the Act rendered the building vacant. The petitioner challenged the impugned order by this writ petition.

Legal Issues Presented

Whether the petitioner was an unauthorised occupant of the building (such that the building should be deemed vacant under Section 12(1)(b) of the Act); or
Whether, on the death of the tenant late Suraj Prasad alias Chhedi, the petitioner (as his real brother and alleged heir who normally resided with him) inherited the tenancy rights and hence was a lawful occupant.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserted he was the real brother and heir of the deceased tenant and had been living in the building for 17 years, normally residing there at the time of the tenant's death.
Because he was an heir who normally resided with the tenant, he inherited the tenancy rights and his occupation was lawful; therefore the order declaring the building vacant should be quashed.

Respondents' Arguments

The respondents (contesting parties) supported the Rent Control Inspector's report that the petitioner was not a member of the tenant's family and had been inducted in 1978.
They contended that induction of the petitioner who was not a family member caused the building to be deemed vacant under Section 12(1)(b) of the Act, and that after the tenant's death the petitioner's occupation could not be legalised; therefore the writ petition should be dismissed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smt. Rukmani Devi v. III A.D.J Kanpur. 1977 ARC page 72.	Held that in a residential building a person (here, a married daughter) who resided with the tenant at his death would be a tenant under Section 3(a); the definition of "family" in Section 3(g) is not relevant to that determination.	The Court relied on this authority to support the proposition that a person who normally resided with the tenant at the time of death acquires tenancy rights irrespective of whether the person is a "family" member under Section 3(g).
Munni Lal v. Smt. Sheo Dei. 1981 ARC Short Note Cases 13.	Rejected a restricted meaning of "heirs" limited to members of the family under Section 3(g); a married daughter residing with parents is an heir for Section 3(a) purposes and Section 12(1)(b) is not attracted merely because such a person was permitted to reside.	The Court used this decision to reinforce that heirs (who normally reside with the tenant) are not excluded from inheriting tenancy rights by the definition of "family" and that their induction does not cause deemed vacancy.
Om Prakash v. Prescribed Authority. 1985 11 ALR 417.	Held that the definition of "family" is not relevant to determine who becomes tenant on death; an heir living with the original tenant at death becomes tenant and there is no vacancy on the tenant's death.	The Court cited this to support the statutory reading that heirs in occupation at the time of death succeed to tenancy rights and prevent any deemed vacancy.
Dr. Ram Narain Begley v. D.J Saharanpur. 1997 29 ALR 471.	Confirmed that under Section 3(a)(1) only such heirs as were residing in the building at the time of death inherit tenancy rights; no distinction between contractual and statutory tenants for this purpose.	The Court relied on this authority for the proposition that only heirs normally residing in the building at the time of death inherit tenancy rights and that this rule applies generally.
Surendra Kumar v. XI A.D.J Kanpur Nagar. 1998 33 ALR 306. and Pradeep Kumar Katiyar v. II Addl. City Magistrate. 2000 38 ALR 550.	Expressed similar views to Dr. Ram Narain Begley that heirs residing at the time of death inherit tenancy rights and there is no vacancy.	The Court noted these decisions as confirming and reinforcing the consistent line of authority that induction of an heir who resided with the tenant does not create vacancy under the Act.

Court's Reasoning and Analysis

The Court began by identifying the statutory provisions relevant to the dispute: Section 3(a) (definition of "tenant" and which heirs inherit tenancy in a residential building), Section 3(g) (definition of "family"), Section 12(1)(b) (deemed vacancy where a person not a member of family is allowed to occupy), and clause (a) of sub-section (4) of Section 34 (continuance of proceedings on death where heirs are brought on record).

The crux of the statutory analysis was a combined reading of these provisions. The Court observed that Section 3(a)(1) confines succession of tenancy in residential buildings to those heirs who "normally resided" with the tenant at the time of his death. The Court reasoned that heirs — determined by the tenant's personal law and who may or may not fall within the definition of "family" under Section 3(g) — can be permitted to reside with the tenant during his lifetime and, if they did so normally at the time of death, they inherit tenancy rights.

The Court explained why interpreting the Act to treat induction of such an heir as creating "vacancy" under Section 12(1)(b) would produce an irreconcilable conflict between Sections 3(a)(1) and 12(1)(b). Specifically, if allowing an heir to reside caused "vacancy", then the provision entitling heirs who normally resided with the tenant to inherit tenancy would be rendered redundant or contradictory. To avoid this conflict, the Court held that the provisions must be harmoniously interpreted so that induction of an heir who resided with the tenant does not render the building vacant.

The Court then surveyed prior decisions of the same Court and related authorities (cited above) which consistently held that a person who resided with the tenant at the time of death becomes tenant for a residential building and that the definition of "family" is not determinative of that question. Applying this line of authority and the statutory construction, the Court concluded that allowing an heir to occupy does not cause vacancy.

Applying these principles to the facts before it, the Court found it was not disputed that the petitioner was the real brother and only heir of the deceased tenant and that he had been normally residing with the tenant at the time of death. Consequently, the authority below erred in law by holding induction of the petitioner caused vacancy. The Court therefore allowed the writ petition.

Holding and Implications

Holding: The writ petition is allowed; the order dated 31.10.1998 declaring the building vacant is quashed.

Implications:

The direct effect of the decision is that the petitioner is recognized as lawfully entitled to remain in possession of the building by virtue of having inherited tenancy rights as an heir who normally resided with the deceased tenant.
The respondents are restrained from interfering with the petitioner’s possession of the building except in accordance with law.
The opinion bases its decision on interpretation and application of the Act and on existing case law; the Court did not purport to announce a novel precedent beyond applying and reaffirming the cited authorities. (The opinion does not discuss any broader policy or systemic implications beyond the resolution between the parties.)

Order: Petition allowed with costs. The impugned order dated 31.10.1998 is quashed and respondents are restrained from interfering in the petitioner's possession except in accordance with law.

Show full summary ...

Deo Narain (Dead) Subs. By L.Rs v. R.C And E.O/Upper Nagar Magistrate (First), Kanpur Nagar And Others

R.H Zaidi, J.:— Heard learned counsel for the petitioner and learned counsel appearing for the contesting respondent.

2. By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 31.10.1998 passed by respondent No. 1, declaring the building in question as vacant.

3. The dispute relates to building No. 86/382, Deo Nagar, Kanpur of which one Sri Jagdamba Prasad Awasthi was the original landlord. The said building was in the tenancy of Mr. Suraj Prasad alias Chhedi. The petitioner was permitted to reside in the building in question in 1955 by Sri Suraj Prasad alias Chhedi, the chief tenant. On receipt of the application for allotment of the said building, proceedings under Section 16 read with Section 12 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for short, ‘the Act’ were initiated. On the direction issued by the Rent Control and Eviction Officer, the building in question was inspected by the Rent Control Inspector. He, thereafter, submitted his report to the Rent Control and Eviction Officer, the copy of which is contained as Annexure-3 to the writ petition. The Rent Control Inspector, by his report dated 29.05.1998, reported that the building in question was in occupation of the petitioner who was not a member of the family of the tenant. On the basis of the said report, the notices were issued to the concerned parties. The petitioner filed his objection in the said proceedings to the effect that he happened to be the real brother of the deceased tenant. He has been living in the building in question for the last 17 years and normally resided in the same at the time of the death of the tenant. He, therefore, being the heir of the deceased tenant, inherited the tenancy right and was entitled to continue in occupation of the said building. His occupation of the building in question was quite legal, therefore, it cannot be said to be vacant. On the other hand, learned counsel for the respondents No. 2 and 3 have supported the report of the Rent Control Inspector and stated that the petitioner although was the real brother of the deceased but was not his family member. They contended that he was inducted in the house in 1978, therefore, in view of the provisions of Section 12(1)(b) of the Act, the building in question shall be deemed to be vacant. Parties thereafter, produced evidence in support of their cases, oral and documentary. The Rent Control and Eviction Officer, after going through the entire material on the record, came to the conclusion that the petitioner was inducted in the building in question by the tenant Shri Suraj Prasad alias Chhedi in the 1978. Petitioner was not a family member of the deceased tenant, therefore, the building in question shall be deemed to be vacant in view of the provisions of Section 12(1)(b) of the Act, that after the death of the tenant, possession of the petitioner cannot be legalised and declared the building in question as vacant by the impugned order dated 31.10.1998 Challenging the validity of the said order, the present petition has been filed.

4. Learned counsel for the petitioner vehemently urged that the petitioner was the heir of the deceased tenant, he therefore, on his death, inherited the tenancy right in the building in question and his occupation cannot be said to be unauthorised and illegal, therefore, the order declaring the vacancy was liable to be quashed.

5. On the other hand, learned counsel appearing for the contesting respondent submitted that the petitioner was inducted in the building in question in 1978 in contravention of the provisions. After the death of the tenant, the occupation of the petitioner cannot be legalised. The writ petition was, therefore, liable to be dismissed.

6. The questions which arise for consideration in this case, are as to whether petitioner was an unauthorised occupant of the building in question or he has, on the death of late Suraj Prasad alias Chhedi, inherited the tenancy rights in the building in question and thereafter, he was lawful occupant of the same. For resolving the aforesaid controversy, provisions of Section 3(a),(g), Section 12(1) and clause (a) of sub-section (4) of Section 34 of the Act are relevant which are reproduced below:

“3. Definitions.—In this Act, unless the context otherwise requires:—

(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 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];

(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;

“12. Deemed vacancy of building in certain cases.—(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if—

(a) ……………………

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

34. Power of various authorities and procedure to be followed by them.—(1) The District Magistrate, the prescribed authority or any appellate or revising authority shall for the purposes of holding any inquiry or hearing any appeal or revision under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters namely,—

………………………….

(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 representatives;

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

7. Admittedly, the building in question is a residential building and the petitioner is a real brother of the chief tenant late Suraj Prasad alias Chhedi. It is also not disputed that petitioner was found normally residing with the tenant at the time of his death.

8. A combined reading of the above noted 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 life-time 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 above noted provisions redundant, or contradictory to each other and unworkable in as much 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 rights, may be members of his family or not, and unless an 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.

9. In Smt. Rukmani Devi v. III A.D.J Kanpur . 1977 ARC page 72., while considering the provisions of Section 3(a) and (g), it was ruled by this Court that premises in dispute being a residential building, the petitioner (who was married daughter of the tenant) who resided with the tenant at the time of his death, would be a tenant within the meaning of the word under Section 3(a) of the Act, reference to the definition of word ‘family’ in Section 3(g) had no relevance.

10. In Munni Lal v. Smt. Sheo Dei . 1981 ARC Short Note Cases 13., it was held that there was no warrant for giving to the word “heirs”, as occurring in Section 3(a)(1), a restricted meaning and limiting it to the members of the family of tenant, as defined in Section 3(g). In the said case, it was further held that married daughter residing with her parents would be an heir of tenant within the meaning of Section 3(a) of the Act irrespective of whether or not she would be regarded as a member of the family as defined under Section 3(g) of the Act. Therefore, Section 12(1)(b) of the Act was not attracted because the accommodation cannot be treated to be vacant merely because the married daughter was allowed to reside with the parents. She could not deemed to have occupied the accommodation.

11. In Om Prakash v. Prescribed Authority . 1985 11 ALR 417., it was held that the definition of the word “family” was not relevant for the purposes of determining the question as to who would become tenant on the death of original tenant. On the death of the original tenant of a residential building, his heir living with him at the time of death, will become tenant and there would be no vacancy in the building on the death of the original tenant.

12. In Dr. Ram Narain Begley v. D.J Saharanpur . 199729 ALR 471., it was held that it was clear that under Section 3(a)(1) of the Act, there is a specific provision that in case of a residential building, only such heir will inherit tenancy rights who resided in the building at the time of death of the tenant. Under the provisions of the Act, there was no distinction between the contractual and statutory tenant to inherit the rights of the tenant. In case of a residential building, only such heirs of the deceased tenant would inherit the tenancy rights who were normally residing with him in the building at the time of his death. Similar view was expressed by this Court in Surendra Kumar v. XI A.D.J Kanpur Nagar . 1998 33 ALR 306., and in Pradeep Kumar Katiyar v. II Addl. City Magistrate . 2000 38 ALR 550..

13. 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.

14. The writ petition succeeds and is allowed with cost. The order dated 31.10.1998 is hereby quashed. The respondents are restrained from interfering in the possession of the petitioner over the building in question except in accordance with law.

Petition Allowed.

Deo Narain (Dead) Su... v. R.C And E.O/Upper Na...