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Attorney(S)
  • Vinod Sinha
  • Sunil Ambwani
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  • D.K Seth, J.
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Attorney(S)
  • Vinod Sinha
  • Sunil Ambwani
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  • D.K Seth, J.
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Smart Summary

Judgment Summary — D.K. Seth, J.

Factual and Procedural Background

The petitioner challenged an order passed under Section 16(1) of the U.P. Act 13 of 1972 in Case No. 32 of 1999 by the Rent Controller, Allahabad, which was affirmed in revision as Rent Control Revision No. 36 of 2000 by the Additional District Judge, 1st Court, Allahabad by order dated 31st January, 2000. The opposite parties (Nos. 3 and 4) had filed a petition under Section 16(1) (numbered as Case No. 32 of 1999 before the Rent Controller) seeking eviction of the petitioner-tenant on the ground that the tenant had ceased to occupy the building by virtue of Section 12(3) of Act 13 of 1972; it was alleged that two sons of the tenant had acquired vacant possession of other residential buildings and therefore Section 12(3) was attracted.

The tenant contested the petition by affidavit denying the landlord's claim. The Rent Controller relied on enquiry reports and materials on record and decided the questions against the tenant by order dated 3rd January, 2000. The revision was dismissed as not maintainable on the ground that the impugned order was not a final order. The present petition was permitted to be amended to one under Article 227 of the Constitution of India.

Legal Issues Presented

  1. Whether, for the purpose of Section 12(3) of U.P. Act 13 of 1972, both conditions — (a) that a member of the family ordinarily resides with the tenant and (b) that he is fully dependent on the tenant — must be fulfilled, or whether satisfaction of any one of these ingredients is sufficient to attract the mischief of Section 12(3).
  2. Whether, on the admitted facts of the case (two sons employed, not fully dependent, both having acquired accommodation elsewhere), the sons had been "normally residing" with the tenant at the time the acquisitions were made (the relevant date), so as to attract Section 12(3).
  3. Whether the revisional court (or this Court in writ jurisdiction) should reappraise or interfere with the Rent Controller's factual findings in a summary proceeding, absent perversity in those findings.
  4. Whether the Rent Controller's order contained the necessary finding that the sons were ordinarily residing with the tenant, given the materials (affidavits, Rent Control Inspector's report) before the authority.

Arguments of the Parties

Petitioner's Arguments (Mr. Vinod Sinha)

  • Submitted that to attract sub-section (3) of Section 12 both conditions must be satisfied: (a) that a member of the family ordinarily resides with the tenant and (b) that he is fully dependent on the tenant — relying on Triveni Pratap Singh v. Smt. Gauri Ghakravarty and others, 1977 ARC 307.
  • Acknowledged Full Bench decision in Smt. Ram Devi Shakhya v. First Addl. District Judge, Lucknow and another, 1981 ARC 305, but urged that the Supreme Court in Harish Tandon v. Additional District Magistrate, Allahabad and others, 1995 (25) ALR 184 (SC) did not approve that Full Bench decision and that observations in Harish Tandon have whittled down the earlier Single Judge decision in Syed Mazhar Mustafa Jafri.
  • Relied on a number of precedents (Mohammed Azeem v. District Judge, Aligarh, Thakur Din v. District Judge, Kanpur, Som Nath Seth v. IInd Addl. District Judge Rampur, Prem Raj Gupta v. Rent Control and Eviction Officer, Kanpur) to argue that since the sons were not fully dependent and had not been normally residing with the tenant, Section 12(3) cannot be attracted.
  • Argued that it is for the landlord to prove the ingredients of Section 12(3) and, in the absence of such proof, the impugned order cannot be sustained.

Opposite Parties' Arguments (Mr. Sunil Ambwani)

  • Emphasized that the proceeding is summary in nature and the Court should not re-examine or substitute its view for the Rent Control Authority's findings of fact unless those findings are shown to be perverse.
  • Contended that there were sufficient materials before the Rent Controller (including affidavit and enquiry report) to support the conclusion reached; factual determinations often turn on belief or disbelief and the authority was entitled to accept the landlord's version.
  • Relied on the Full Bench decision in Ram Devi Shakhya to contend that it is settled that satisfaction of any one of the ingredients attracts Section 12(3); maintained that Harish Tandon does not impeach the Full Bench's authority on a local Act because the Supreme Court did not expressly decide the issue.
  • Argued that once acquisition is completed the mischief of Section 12(3) is attracted as at the date of acquisition; subsequent shifting does not negate the earlier ordinary residence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court (as stated in the opinion)
Triveni Pratap Singh v. Smt. Gauri Ghakravarty and others, 1977 ARC 307 Held that both twin ingredients (ordinary residence and full dependence) must be satisfied to attract Section 12(3). Cited by petitioner as authority for requiring both conditions; Court notes this earlier position but treats it in light of subsequent Full Bench authority.
Smt. Ram Devi Shakhya and another v. First Addl. District Judge, Lucknow and another, 1981 ARC 305 (Full Bench) Held that it is not necessary that a person should both be normally residing with the tenant and be wholly dependent; satisfaction of any one ingredient suffices. Court states it is bound by this Full Bench decision and accepts that position as settling the question in favour of "any one ingredient" being sufficient.
Harish Tandon v. Additional District Magistrate, Allahabad and others, 1995 (25) ALR 184 (SC) Contains observations that did not approve the Full Bench decision; Supreme Court did not consciously and expressly decide the particular question. Court notes the Supreme Court did not go into the question and made observations in a different context; therefore those observations do not displace the Full Bench decision in the local Act.
Syed Mazhar Mustafa J

Judgment Summary — D.K. Seth, J.

Factual and Procedural Background

The petitioner challenged an order passed under Section 16(1) of the U.P. Act 13 of 1972 in Case No. 32 of 1999 by the Rent Controller, Allahabad, which was affirmed in revision as Rent Control Revision No. 36 of 2000 by the Additional District Judge, 1st Court, Allahabad by order dated 31st January, 2000. The opposite parties (Nos. 3 and 4) had filed a petition under Section 16(1) (numbered as Case No. 32 of 1999 before the Rent Controller) seeking eviction of the petitioner-tenant on the ground that the tenant had ceased to occupy the building by virtue of Section 12(3) of Act 13 of 1972; it was alleged that two sons of the tenant had acquired vacant possession of other residential buildings and therefore Section 12(3) was attracted.

The tenant contested the petition by affidavit denying the landlord's claim. The Rent Controller relied on enquiry reports and materials on record and decided the questions against the tenant by order dated 3rd January, 2000. The revision was dismissed as not maintainable on the ground that the impugned order was not a final order. The present petition was permitted to be amended to one under Article 227 of the Constitution of India.

Legal Issues Presented

  1. Whether, for the purpose of Section 12(3) of U.P. Act 13 of 1972, both conditions — (a) that a member of the family ordinarily resides with the tenant and (b) that he is fully dependent on the tenant — must be fulfilled, or whether satisfaction of any one of these ingredients is sufficient to attract the mischief of Section 12(3).
  2. Whether, on the admitted facts of the case (two sons employed, not fully dependent, both having acquired accommodation elsewhere), the sons had been "normally residing" with the tenant at the time the acquisitions were made (the relevant date), so as to attract Section 12(3).
  3. Whether the revisional court (or this Court in writ jurisdiction) should reappraise or interfere with the Rent Controller's factual findings in a summary proceeding, absent perversity in those findings.
  4. Whether the Rent Controller's order contained the necessary finding that the sons were ordinarily residing with the tenant, given the materials (affidavits, Rent Control Inspector's report) before the authority.

Arguments of the Parties

Petitioner's Arguments (Mr. Vinod Sinha)

  • Submitted that to attract sub-section (3) of Section 12 both conditions must be satisfied: (a) that a member of the family ordinarily resides with the tenant and (b) that he is fully dependent on the tenant — relying on Triveni Pratap Singh v. Smt. Gauri Ghakravarty and others, 1977 ARC 307.
  • Acknowledged Full Bench decision in Smt. Ram Devi Shakhya v. First Addl. District Judge, Lucknow and another, 1981 ARC 305, but urged that the Supreme Court in Harish Tandon v. Additional District Magistrate, Allahabad and others, 1995 (25) ALR 184 (SC) did not approve that Full Bench decision and that observations in Harish Tandon have whittled down the earlier Single Judge decision in Syed Mazhar Mustafa Jafri.
  • Relied on a number of precedents (Mohammed Azeem v. District Judge, Aligarh, Thakur Din v. District Judge, Kanpur, Som Nath Seth v. IInd Addl. District Judge Rampur, Prem Raj Gupta v. Rent Control and Eviction Officer, Kanpur) to argue that since the sons were not fully dependent and had not been normally residing with the tenant, Section 12(3) cannot be attracted.
  • Argued that it is for the landlord to prove the ingredients of Section 12(3) and, in the absence of such proof, the impugned order cannot be sustained.

Opposite Parties' Arguments (Mr. Sunil Ambwani)

  • Emphasized that the proceeding is summary in nature and the Court should not re-examine or substitute its view for the Rent Control Authority's findings of fact unless those findings are shown to be perverse.
  • Contended that there were sufficient materials before the Rent Controller (including affidavit and enquiry report) to support the conclusion reached; factual determinations often turn on belief or disbelief and the authority was entitled to accept the landlord's version.
  • Relied on the Full Bench decision in Ram Devi Shakhya to contend that it is settled that satisfaction of any one of the ingredients attracts Section 12(3); maintained that Harish Tandon does not impeach the Full Bench's authority on a local Act because the Supreme Court did not expressly decide the issue.
  • Argued that once acquisition is completed the mischief of Section 12(3) is attracted as at the date of acquisition; subsequent shifting does not negate the earlier ordinary residence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court (as stated in the opinion)
Triveni Pratap Singh v. Smt. Gauri Ghakravarty and others, 1977 ARC 307 Held that both twin ingredients (ordinary residence and full dependence) must be satisfied to attract Section 12(3). Cited by the petitioner as authority for requiring both conditions; Court notes this earlier position but situates it against the Full Bench decision.
Smt. Ram Devi Shakhya and another v. First Addl. District Judge, Lucknow and another, 1981 ARC 305 (Full Bench) Held that it is not necessary that a person should both be normally residing with the tenant and be wholly dependent; satisfaction of any one ingredient suffices. Court states it is bound by this Full Bench decision and accepts that position as settling the question in favour of "any one ingredient" being sufficient.
Harish Tandon v. Additional District Magistrate, Allahabad and others, 1995 (25) ALR 184 (SC) Contains observations which did not approve the Full Bench; Supreme Court did not consciously and expressly decide the specific question. Court notes the Supreme Court's observations were not a conscious decision on the issue and therefore do not displace the Full Bench decision on the local Act.
Syed Mazhar Mustafa Jafri and another v. Rent Control and Eviction Officer, Allahabad and others, 1992 (19) ALR 3 (Sum); 1991 (2) ARC 427 Held that if one of the conditions is fulfilled, Section 12(3) is attracted; clarified that mischief is attracted whether both conditions are satisfied or only one. Court finds no reason to disagree with this position and treats it as consistent with the Full Bench conclusion that one ingredient suffices.
Mohammed Azeem v. District Judge, Aligarh and others, 1985 (11) ALR 358 (SC) Cited among authorities relied on by petitioner to support his contention regarding dependence and residence. Noted as relied upon by petitioner; used in support of petitioner's factual/legal contentions in submissions but the Court did not adopt it as overturning Full Bench authority.
Thakur Din v. District Judge, Kanpur and others, 1984 UPRCC 389 Cited by petitioner in support of his arguments on the proper scope of Section 12(3). Recorded as one of the authorities relied upon by the petitioner; Court does not treat it as displacing Full Bench/Syed Mazhar positions.
Som Nath Seth v. IInd Addl. District Judge, Rampur and others, 1981 ARC 82 Cited by petitioner among supportive precedents. Noted by the Court as relied upon by the petitioner.
Prem Raj Gupta and another v. Rent Control and Eviction Officer, Kanpur and others, 1998 (32) ALR 539 Cited by petitioner in support of his submissions regarding the ingredients of Section 12(3). Recorded as a precedent relied upon by petitioner.
Sreenivasa General Traders and others v. State of Andhra Pradesh and others, 1983 (4) SCC 353 Principle that a case is an authority only for what it actually decides; obiter remarks are not binding. Court applies this principle to explain that certain Supreme Court observations may be obiter and therefore not binding on the Full Bench's interpretation of a local Act.
Shiv Kumar v. Jawahar Lal Verma and others, 1988 (14) ALR 633 (SC) Cited by respondent to support the proposition that Supreme Court observations do not automatically eclipse a Full Bench decision on a local Act unless the Supreme Court expressly and consciously decides the issue. Used by the Court (as stated in the opinion) to support the view that Harish Tandon's observations do not displace the Full Bench decision.
State Of Punjab v. Baldev Singh, 1999 (6) SCC 172 Cited for the proposition concerning the limits of Supreme Court observations vs. Full Bench decisions. Referenced by respondent; Court treats it as supporting the proposition that apex Court's obiter remarks cannot eclipse Full Bench on local Act unless explicitly decided.
Kewal Krishna Puri v. State of Punjab, 1980 (1) SCC 416 Contains observations that may have gone beyond what was necessary for decision (unnecessary observations as obiter). Cited to illustrate that some observations in precedent may be unnecessary and therefore not binding; Court adopts this approach in assessing the force of Harish Tandon observations.

Court's Reasoning and Analysis

The Court first reviewed the competing authorities and arguments. It noted that Triveni Pratap Singh had required both ingredients, but that the Full Bench in Smt. Ram Devi Shakhya had held that satisfaction of any one of the ingredients in Section 12(3) would attract the mischief of that provision. The Single Judge decision in Syed Mazhar Mustafa Jafri had also held that if one of the conditions is fulfilled the provision is attracted, and that decision clarified that the mischief is attracted both when both ingredients are satisfied and when any one is satisfied.

The Court considered the Supreme Court decision in Harish Tandon and observed that the apex Court had not consciously and expressly decided the specific question (it had recorded that it was not necessary to go into the question and made observations in a different context). The Court relied on the principle from Sreenivasa General Traders that a judgment is authority only for what it actually decides and that obiter or unnecessary observations have persuasive but not binding value. Applying these principles, the Court held that Harish Tandon's observations do not displace the Full Bench decision on the local Act because the Supreme Court did not resolve the issue expressly.

Turning to statutory interpretation, the Court quoted Section 12(1) and (3) and explanation (b) to subsection (3). It emphasized that the relevant date for assessing ordinary residence is the date of acquisition: "the relevant date is the date when the acquisition is made." The Court concluded from the text (including explanation (b)) that a person who has neither been normally residing with nor is wholly dependent on the tenant is not to be regarded as a "member of family" for Section 12(3) purposes.

On the admitted facts, both sons were employed, not fully dependent, and both had acquired accommodation in Allahabad. The Rent Controller had relied on enquiry reports and affidavits and had reached findings against the tenant, but the Court found that the impugned order did not contain a definite finding that the sons had been ordinarily residing with the tenant at the time of acquisition. The Rent Control Inspector's report indicated one son had let out the premises he acquired, but the Rent Controller's order did not specifically address or discuss that report.

The Court acknowledged that it is not open to the revisional court to reappraise disputed questions of fact in summary proceedings unless the finding is perverse. Nevertheless, because the Rent Controller did not make a clear finding on the critical point of ordinary residence despite materials being available, the Court concluded that the matter should be remitted for a fresh decision by the Rent Controller. The authority is to decide the question in accordance with law on the materials already before it and any additional materials the parties may produce.

Holding and Implications

Core Ruling: The petition succeeds and is allowed; the order of the Rent Controller is set aside and the matter is remitted to the Rent Controller for fresh decision in accordance with law.

Legal holding on interpretation: The Court states that the position is that either one of the ingredients (ordinary residence or full dependence) is sufficient to attract the application of Section 12(3) of the Act (that is, satisfaction of any one ingredient will attract the mischief of Section 12(3)), consistent with the Full Bench in Smt. Ram Devi Shakhya and the clarification in Syed Mazhar Mustafa Jafri.

Directions and immediate consequences: The Rent Controller's order dated 3rd January, 2000 is set aside. The Rent Controller is directed to decide the question afresh in accordance with law within two months from the date a copy of this order is produced before the authority. The parties are directed to produce any further materials they wish to rely upon within one month from the date of this order; in default, the Rent Controller may proceed on the materials already on record. The revision is disposed of and there is no order as to costs. A certified copy of the order is to be given to counsel for both parties on payment of usual charges.

Broader implications: The Court treated the Full Bench decision as binding on the interpretation of the local Act and applied the principle that Supreme Court observations not necessary for decision are not binding on the Full Bench's interpretation; the opinion did not purport to create a novel precedent beyond reaffirming that either one ingredient suffices and remitting the matter for determination of the factual question of ordinary residence.

Show full summary ...

    Saraswati Chaddha v. Ist Additional District Judge, Allahabad

    D.K. Seth, J.-

    Leave is granted to Mr. Vinod Sinha, learned Counsel for the petitioner to amend the cause title so as to convert this petition into one under Ar­ticle 227 of the Constitution of India.

    2. In the present case the petitioner has challenged an order passed under Sec­tion 16 (1) of U.P. Act, 13 of 1972 in case No. 32 of 1999 by the Rent Controller, Allahabad, since been affirmed in revision being Rent Control Revision No. 36 of 2000 by the learned Additional District Judge, 1st Court, Allahabad through its order dated 31st January, 2000. The op­posite party Nos. 3 and 4 had filed a peti­tion under Section 16 (1) since been num­bered as case No. 32 of 1999 before the Rent Controller for eviction of the petitioner-tenant on the ground that he has ceased to occupy the building by reason of Section 12 (3) of the Act 13 of 1972. It was contended in the said petition that two sons of the tenant had acquired vacant possession of building and as such the provision of Section 12 (3) of the said Act is attracted.

    3. This petition was contested by the tenant by filing affidavit denying the claim of the landlord. The Rent Controller had relied on the enquiry reports and the materials placed before him and had decided the questions against the tenant by this order dated 3rd January, 2000. The revision thereout was dismissed as not maintainable on the ground that the im­pugned order was not a final order and it is not a case decided.

    4. Mr. Vinod Sinha had argued on behalf of the petitioner that in order to attract the application of sub-section (3) of Section 12 of the said Act, two conditions are to be fulfilled namely-(a) that a mem­ber of family ordinarily resides with the tenant and (b) that he is fully dependent on the tenant. In the case of Triveni Pratap Singh v. Smt. Gauri Ghakravarty and others, 1977 ARC 307, this Court have held that both these conditions are to be ful­filled in order to attract such provisions. But the Full Bench in the case of Smt. Ram Devi Shakhya and anther v. First Addl. Dis­trict Judge, Lucknow and another, 1981 ARC 305, in paragraph 16 had held that it is not necessary that a person should both be normally residing with the tenant as well as be wholly dependent on such tenant before his acquiring another building will cause vacancy. The decision of the Full Bench was considered by the Supreme Court in the case of Harish Tandon v. Addi­tional District Magistrate, Allahabad and others, 1995 (25) ALR 184 (SC), wherein the decision of the Full Bench was not approved. In an earlier decision to that of Supreme Court the learned Single Judge of this Court had held in the case of Syed Mazhar Mustafa Jafri and another v. Rent Control and Eviction Officer, Allahabad and others, 1992 (19) ALR 3 (Sum): 1991 (2) ARC 427, that if one of the conditions is fulfilled, the provision is attracted. Ac­cording to Mr. Sinha, the decision of the learned Single Judge has since been whit­tled down by reason of the observations made by the Supreme Court in the case of Harish Tandon (supra). He had also relied on the decisions in the case of Mohammed Azeem v. District Judge, Aligarh and others, 1985 (11) ALR 358 (SC) ; Thakur Din v. District Judge, Kanpur and others, 1984 UPRCC 389; Som Nath Seth v. IlndAddL District Judge, Rampur and others, 1981 ARC 82 and Prem Raj Gupta and anotherv. Rent Control and Eviction Officer, Kanpur and others, 1998 (32) ALR 539, and con­tended that since the sons of the tenant were not fully dependent on the tenant that they had not been normally residing with the tenant therefore, the said provisions cannot be attracted. He next contends that in fact there is nothing to show that the sons of the tenant had been residing normally with the tenant. Accord­ing to him it is for the landlord to prove in order to take advantage of Section 12 (3) of the said Act that the ingredients thereof had been satisfied. In the absence of any such proof the order cannot be sustained.

    5. Mr. Sunil Ambwani appearing on behalf of the opposite parties on the other hand contends that the proceeding being a summary procedure, this Court is not sup­posed to enter into the finding of fact arrived at by the Rent Control Authority, unless it is shown that the finding is per­verse. He had relied on the materials that had been taken into consideration by the authority concerned and had pointed out that there were sufficient materials to come to the conclusion in one or other way. He had further pointed out that the decision was on the basis of the affidavit and it is a question of belief or disbelief. Since the authority had considered the case on the basis of the materials on record, this Court even of a different view cannot interfere with such finding when one or the other finding could be arrived at on the basis of such materials. He further contends that by reason of the Full Bench decision cited by Mr. Sinha namely the case of Ram Devi Shakhya (supra), it is no more res integra. Now it is settled principle of law that if any one of the ingredient is satisfied, the mischief of Section 12 (3) of the said Act is attracted. The position stands clarified in the decision of Syed Mazhar Mustafa Jafri (supra). The decision in the case of Harish Tandon (supra), by the apex Court cannot be said to have whittled down the decision of the learned Single Judge in Syed Mazhar Mus­tafa Jafri (supra), or that of the Full Court in view of the decision in the case of Sreenivasa General Traders and others v. State of Andhra Pradesh and others, 1983 (4) SCC 353 ; Shiv Kumar v. Jawahar Lal Verma and others, 1988 (14) ALR 633 (SC) and State Of Punjab v. Baldev Singh., 1999 "(6) SCC 172, the observation made by Supreme Court cannot eclipse the decision of the Full Bench in respect of a local Act unless it is expressly and con­sciously decides the issue. In the decision in the case of Harish Tandon (supra), the Apex Court has not decided the issue and had made an observation in a context when the apex Court had recorded that it was not necessary to go into the question. As such the observation made therein cannot have any impact on the decision of the Full Bench that any one of the ingredient, if satisfied, would attract the mischief of Sec­tion 12 (3). He had further pointed out from the materials on record that there are sufficient materials to arrive at the finding. He further contended that the mischief is attracted as soon the acquisition con­templated in the said provision is com­pleted. Subsequent shifting of the member of the family after acquisition would not mean that he does not ordinarily reside with the tenant. The effective date is the date on which the acquisition is made. In such circumstances, according to him the petition should be dismissed.

    6. I have heard both the Counsel at length.

    7. The facts of this case are more or less admitted. It is admitted that there are two sons of the tenant-petitioner herein. It is also admitted that both the sons are employed and are not fully dependent on the tenant. It is also admitted that both the sons have acquired accommodation in the City of Allahabad. However, it is con­tended that one of the accommodations had been acquired by the wife of one of the sons. On this admitted facts, it is con­tended on behalf of the tenant that the said two sons are living separately and had not been ordinarily residing with the tenant. On the other hand, the landlord had been insisting that both the sons had been or­dinarily residing with the tenant until the respective properties were acquired by the respective sons and even thereafter. It is further contended that one of the sons had let out the flat acquired by him to tenant which has since been found on enquiry by the Competent Authority. In such cir­cumstances, according to the landlord the tenant cannot succeed in opposing the case of the landlord.

    8. In this background the question as raised by both the Counsels are to be ex­amined. Admittedly in the decision in the case of Triveni Pratap Singh (supra), this Court had held that the twin ingredients are to be satisfied before the mischief of Section 12 (3) is attracted. However, the question stands settled by reason of the decision of the Full Bench in Smt. Ram Devi Shakhya (supra) to the extent that any one of the ingredients would be sufficient to attract the mischief. It stood clarified by the decision in the case of Syed Mazhar Mustafa Jafri (supra), which had clarified that the mischief is attracted when both the ingredients are satisfied as well as when anyone of them is satisfied. The apex Court in the case of Harish Tandon (supra), has not consciously and expressly gone into the said question though it had observed certain anomalies in paragraph 19 of the said judgment. It would be beneficial to quote the expression used in the said decision namely

    "Although we are not concerned in the present case with the scope of sub-section (3) of Section 12, but in order to appreciate the submission made on be­half of the respondents, we may point out that sub-section (3) of Section 12 does not conceive that if one of the sons living with the tenant who is not wholly dependent on such tenant, acquires any other residential building in the same city or town then even the original tenant shall be deemed to nave ceased to occupy the building in question."
    This is apparent from the explanation (b) to said sub-section (3) which says:-

    ''(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."

    In view of the explanation any mem­ber of the family mentioned in sub-section (3) shall not include any person who has neither been normally residing with nor is wholly dependent on such tenant. As such if son of the tenant who is not wholly depend­ent on such tenant acquires or gets any residential building in the same city or town, there is no question of the tenant deeming to have ceased to occupy the building under sub-section (3) of Section 12.

    9. This observation according to Mr. Ambwani does not eclipse the ratio decided by the Full Bench in the case of Smt. Ram Devi Shakhya (supra).

    10. In the case of Sreenivasa General Traders (supra), the apex Court had held that a case is an authority only for what is actually decides and not for what may logi­cally follow from it. Every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be exposi­tions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found. It would appear that there are certain ob­servations to be found in the judgment in Kewal Krishna Puri v. State of Punjab, 1980 (1) SCC 416, which were really not neces­sary for the purposes of the decision and go beyond the occasion. Therefore, they have no binding authority though they have persuasive value.

    11. Be that as it may. The observation was made in the context where out of four sons one had acquired such accommodation. But in the present case, the context is completely different where both the sons had acquired accommodation and as such, we may not go into that question par­ticularly, when the apex Court was not in seisin of the issue involved in the Full Bench. In such circumstances I am bound by the decision of the Full Bench in the case of Smt. Ram Devi Shakhya (supra),and I do find any reason for disagreement with that of the learned Single Judge in the case of Syed Mazahar Mustafa Jafri (supra).

    12. The position now is that either one of the ingredients is to be satisfied in order to attract the application of Section 12(3).

    13. In the present case, admittedly the sons are not fully dependent on the tenant. The question remains to be seen as to whether the sons had been normally residing with the tenant or not.

    14. The landlord had contended that the sons had been residing with the tenant normally though the house was acquired in the name of the wife of one of the sons. It is in effect an acquisition of the property by the sons. In the affidavit the tenant had disclosed that her son Sri Shyam Lal had been living separately and his wife has entered into an agreement to purchase the house referred to by the landlord and her other son Sri Chandrajeet Chaddha had entered into an agreement to purchase the house in question and that the said sons are living separately from the deponent. The question is decided on the basis of the affidavit filed by the parties. This affidavit was filed in order to counter the statement made in the application by the landlord where he had contended that they were residing with the tenant ordinarily. There was a report of the Rent Control Inspector. The procedure has been laid down in the Act and the Rules. The procedure being a summary procedure that is not open to this Court to sit on appeal. This Court also while exercising revisional jurisdiction is not supposed to enter into disputed ques­tion or interfere with the finding of fact unless it appears to be perverse. It is open to the Rent Controller to believe or dis­believe one or the other's case. This Court cannot interfere with arriving at a con­clusion on the basis of such belief although it might be of different view.

    15. But then there has to be a definite finding to the extent that the sons of the tenant had been residing with the tenant ordinarily. From the impugned order, it does not appear that there was any such finding. Mr. Ambwani has drawn my atten­tion to the report of the Rent Control Inspector. The said report shows that one of the sons had let out the premises to one Sri Rajendra Pal Mehrotra but the Rent Controller has not reverted to the said report and discussed the same though in law he is not expected to write an elaborate judgment. But then there must be a finding to the extent that the sons of the tenant had been ordinarily residing with the tenant.

    16. So far as the question that the sons of the tenant had been residing ordinarily with the tenant at the time of acquisition of the property is to be decided by the Rent Controller. This proposition can be ex­amined having regard to the expression used in Section 12 itself. In order to ap­preciate the situation, it would be benefi­cial to quote sub-section (1) and (3) of Section 12:

    "(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 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).

    (3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets va­cated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy:

    Provided that if the tenant or any member of his family had built any such residential build­ing before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.

    (3-A)……..

    17. It appears that under sub-section (1) a landlord or tenant deemed to have ceased to occupy the building or part thereof it he substantially removes his ef­fects therefrom or he allows any person not being a member of the family to occupy the premises or the tenant as well as the member of the family takes up a residence elsewhere which is not a temporary residence. It further provides in sub-sec­tion (3) in respect of residential building that if a tenant or any member of his family builds 01 otherwise acquires in vacant state or gets vacated any residential building in the same city in which the tenanted building is situated, he shall be deemed to have ceased to occupy the building under his tenancy.

    18. Thus, the expression used indi­cates that the relevant date is the date when the acquisition is made. Therefore, the relevance of residence had nexus with the date of the acquisition. It is immaterial if he shifts to new accommodation after the acquisition is made then it would not dis­qualify him as an ordinary resident of the tenanted house. The relevant point of time is anti-dated to the acquisition. Therefore it is to be seen that whether on the date of acquisition of the property the sons of the tenant had been residing ordinarily with the tenant.

    19. This question since appears not to have been determined by the Rent Con­troller though there were certain materials. In my view this is a case fit to be sent back for fresh decision by the Rent Controller in accordance with law on the face of the materials placed before it or such other materials that might be placed before the authority by the respective par­ties who would be free to produce other materials in order to support their respec­tive contentions.

    20. in such circumstances this peti­tion succeeds and is allowed. The order of the Rent Controller is hereby set aside with the direction that the Rent Controller shall decide the question once again in accordance with law and according to the direction contained hereinbefore within a period of two months from the date of a copy of this order is produced before the authority concerned, whatever materials are to be produced by the parties, the same should be produced within one month from the date of this order. In default, it would be open to the Rent Controller to proceed without such materials and decide the case on the materials that already exist.

    The revision is thus disposed of. However, there will be no order as to costs.

    Let a certified copy of this order be given to the Counsel for both the parties on payment of usual charges.

    Petition allowed

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    Comments

    Saraswati Chaddha v. Ist Additional District Judge, Allahabad
    (Mar 3, 2000)

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