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1999 Supreme(All) 609
IN THE HIGH COURT OF ALLAHABAD
Yatindra Singh, J.
MADAN GOPAL MAHESHWARI - Appellant
Versus
DISTRICT JUDGE, MATHURA - Respondents
C. M. W. P. 21357 Of 1995
Decided On : 04/26/1999
B.D.Mandhyan
The construction of a house by the tenant's son is not sufficient to declare the premises vacant under Section 12(3) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 unless the son is a member of the tenant's family within the meaning of Explanation (b) to Section 12(3).
Headnote:
U. P. URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) ACT, 1972 - SECTION 12(3) - VACANCY - CONSTRUCTION OF HOUSE BY SON - NOT SUFFICIENT - FAMILY MEMBER - EXPLANATION (B) TO SECTION 12(3) - CONDITIONS TO BE SATISFIED.
Fact of the Case:
Tenant's writ petition challenging the orders declaring vacancy and releasing the premises in favor of the landlord. The landlord claimed vacancy under Section 12(3) of the Act, alleging that the tenant's sons had constructed a house and, therefore, the premises had become vacant.
Finding of the Court:
The court held that the construction of a house by the tenant's sons was not sufficient to declare the premises vacant under Section 12(3) of the Act. It held that the sons were not members of the tenant's family within the meaning of Section 12(3) as they were not normally residing with him or wholly dependent on him.
Issues: 1. Whether the construction of a house by the tenant's son is sufficient to declare the premises vacant under Section 12(3) of the Act? 2. Whether the tenant had constructed the house along with his sons? 3. Whether the subsequent events during the pendency of the writ petition can be taken into account? 4. Whether reasonable opportunity was given to the tenant?
Ratio Decidendi: 1. The court held that the construction of a house by the tenant's sons was not sufficient to declare the premises vacant under Section 12(3) of the Act. It held that the sons were not members of the tenant's family within the meaning of Section 12(3) as they were not normally residing with him or wholly dependent on him. 2. The court held that there was no evidence to show that the tenant had constructed the house along with his sons. It held that the documents filed by the landlord were not considered by the Rent Control and Eviction Officer and that the finding given by him was vitiated on this account. 3. The court held that subsequent events during the pendency of the writ petition cannot be taken into account in proceedings for declaration of vacancy under Chapter III of the Act. 4. The court held that it was not necessary to decide the issue of reasonable opportunity as the order of the Rent Control and Eviction Officer declaring vacancy was liable to be set aside.
Final Decision: The court allowed the writ petition and remanded the case back to the Rent Control and Eviction Officer to reconsider the question of vacancy.
( 1 ) THIS is tenants writ petition against the orders dated 12. 4. 1994, 18. 7. 1995 and 2. 8. 1995 declaring vacancy and releasing the premises in favour of the landlord respondent Nos. 3 and 4. We are concerned with only that part of judgment, which relates to the declaration of vacancy. In the event that order falls, the release order will automatically go and in case that order is upheld, no objection against the release can be taken by the petitioner. FACTS
( 2 ) THE premises in dispute is a residential premises in which Madan Gopal Maheshwari (the tenant for short) was a tenant at the rate of Rs. 85 per month. He has got eight sons and two daughters. According to him, his two sons and two widowed daughters arc residing with him. The present proceeding started on the application filed by the landlord on 29. 5. 1994. According to the landlord. Mad an Gopal Maheshwari along with his five sons have constructed the house nos. 1098 and 1099 Bert Pada Lal Darwaja. Mathura and as such, the premises in dispute has become vacant. The Rent Control and Eviction Officer (respondent No. 2) got it inspected. The inspector submitted his report on 11. 4. 1995. This was behind the back of the tenant. The respondent No. 2 declared it vacant by his order dated 12. 4. 1994. The tenant filed an objection. Respondent No. 2 considered the evidence on record and by his order dated 18. 7. 1995 has held that (i) Madan Gopal Maheshwari along with his sons have constructed the house at 1098 and 1099 beri Pada Lal Darwaja. Mathura and is residing therein. (ii) In any case his sons at least have constructed the house. They are members of his family. (iii) The premises in dispute has fallen vacant under Section 12 (3) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act for short ). Accordingly respondent no. 2 dismissed the objection filed by Madan Gopal Maheshwari and released the premises on the bona fide need of the landlord. The petitioner filed a revision against this order. This was dismissed on 2. 8. 1995 as non maintainable.
( 3 ) MADAN Gopal Maheshwari died during the pendency of present writ petition and in his place, all his heirs have been impleaded as petitioners. It is admitted by the counsel of the petitioner that out of his heirs, only two sons and two widowed daughters were living with him in the premises in dispute. It is residential accommodation. It is only they who will be entitled to prosecute the case. POINTS FOR DETERMINATION
( 4 ) I have heard counsel for the parties. Following points arise for determination in this case. (i) It is admitted that sons of Madan Gopal Maheshwari have constructed house. Can the premises be declared vacant only on the finding that sons have constructed a house? (ii) Has Madan Gopal Maheshwari constructed the house at 1098 and 1099 along with his five sons? (iii) Madan Gopal Maheshwari died during pendency of the writ petition. Can it be taken into account? Should the vacancy be seen with regard to two widowed daughters and two sons? (iv) Whether reasonable opportunity has been given to the tenant? 1st POINT--IS CONSTRUCTION OF a HOUSE BY SON SUFFICIENT?
( 5 ) SECTION 12 of the Act deals with deemed vacancy in the building in certain cases. A building is vacant if a tenant ceases to occupy the same. Section 12 (1) (a) says that a tenant ceases to occupy a building if he has substantially removed his effects from the building. Section 12 (3) of the Act raises a legal fiction. It states that there will be deemed vacancy if the tenant or his family member acquires a residential building in the same local area. The sons have constructed a house. The landlord says there is deemed vacancy under Section 12 (3) of the Act. But are they members of tenants family?
( 6 ) THE word family is defined under Section 3 (g) of the Act. It Includes male lineal descendent, i. e. , son. But definition clause begins with in this Act, unless context otherwise requires,
