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IN THE HIGH COURT OF ALLAHABAD
J. C. Gupta, J.
CHAMELI DEVI - Appellant
Versus
VITH ADDL.DISTRICT JUDGE, AGRA - Respondents
C. M. W. P. 1579 Of 1982
Decided On : 11/09/1998
U. P. ACT NO. XIII OF 1972 - SECTION 16 (5) - Substitution of legal heirs in proceedings under Section 16 (5) of the Act - Maintainability - Interpretation of Section 34 (4) and Rule 25 - Scope of review application - Successive review applications - Maintainability - Right to defend occupation - Remedy for enforcing a right - Cardinal principle of jurisprudence.
Fact of the Case:
The petitioners, legal heirs of the deceased tenant, challenged the order declaring vacancy and releasing the disputed shop in favor of the landlords. The R. C. and E. O. rejected their substitution application and also dismissed their subsequent application under Section 16 (5) of the Act as barred by time. The revisional court upheld the orders.
Finding of the Court:
The court held that the substitution application was maintainable as the petitioners had a right to defend their occupation by prosecuting the review application initiated by their predecessor in interest. The court also held that the subsequent application under Section 16 (5) was not barred by time as the tenant had not been evicted at any point of time. The court further held that the petitioners had acquired independent rights as tenants within the meaning of Section 3 (a) of the Act and could not be rendered remedyless by the orders passed by the R. C. and E. O.
Issues: 1. Whether the substitution application of the petitioners was maintainable? 2. Whether the subsequent application under Section 16 (5) of the Act was barred by time? 3. Whether the petitioners had acquired independent rights as tenants within the meaning of Section 3 (a) of the Act?
Ratio Decidendi: 1. The court held that the substitution application was maintainable as the petitioners had a right to defend their occupation by prosecuting the review application initiated by their predecessor in interest. The court relied on the definition of 'tenant' under Section 3 (a) of the Act, which includes the legal heirs of a deceased tenant in the case of a non-residential building. 2. The court held that the subsequent application under Section 16 (5) was not barred by time as the tenant had not been evicted at any point of time. The court interpreted the proviso to sub-section (5) of Section 16 to mean that an application under the said sub-section will be barred by time if it is moved later than seven days after eviction of the tenant. 3. The court held that the petitioners had acquired independent rights as tenants within the meaning of Section 3 (a) of the Act and could not be rendered remedyless by the orders passed by the R. C. and E. O. The court relied on the principle of jurisprudence that when law gives a right to a person, it also ensures a remedy for obtaining the same.
Final Decision: The court allowed the writ petition, set aside the impugned orders, and remanded the case to the R. C. and E. O. for deciding the petitioners' applications in accordance with law and the observations made by the court.
J. C. GUPTA, J.
( 1 ) BY means of this writ petition the petitioners have prayed for quashing the order dated 18. 4. 78 passed by the Rent Control and Eviction Officer (R. C. and E. O. | releasing the disputed property in favour of the landlords respondent Nos. 3 to 5, the order dated 9. 3. 79 rejecting the petitioners application moved under Section 16 (5) of the U. P. Act No. XIII of 1972 (hereinafter referred to as the Act), and the order dated 14. 1. 1982 passed by the revisional court dismissing the petitioners revision.
( 2 ) IN order to appreciate the controversy involved in the case, it may be relevant to mention a few facts. The subject-matter of dispute is shop No. 33a. Pratappura, Ajmer Road. Agra. Jamuna prasad the predecessor in interest of the petitioners and the respondent No. 6 was in occupation of the said shop as tenant at a monthly rent of rupees 15. The landlords filed an application dated 12. 4. 1978 for releasing the shop in question in their favour on the ground that the shop was likely to fall vacant as the tenant Jamuna Prasad was agreeable to vacate the shop. The Rent control Inspector made an inspection and reported that the intimation of vacancy has been received from the tenant that he intended to vacate the shop in question in a week or so and the need of the landlord was bona fide. The R. C. and E. O. released the shop in favour of the landlords by the order dated 18. 4. 78 as no objection against notification of the vacancy was received. Jamuna Prasad then filed an application under Section 16 (5) of the Act for cancelling and setting aside the order dated 18. 4. 78 releasing the shop in question in favour of the landlords, with the allegation that the shop was neither vacant de facto nor dejuro nor it could be deemed to be vacant nor he had any intention to vacate the same and the release order has been obtained on misrepresentation of real facts and by playing fraud. The tenant has been carrying on business of lyre and tube repairs for the last forty years. It was also stated therein that no notice has been served upon him of the proceeding nor he had been afforded any opportunity to contest the proceedings of declaration of vacancy and the release order made in favour of the landlords. According to him the shop in question was not vacant and he had given no intimation of vacancy. The landlords had obtained his signatures on a blank paper on a false pretext that they were applying for issuing a permit of cement for repair of the roof of the shop in question and believing the said statement of the landlord he signed that paper which has been misused by the landlords as intimation of vacancy. In brief, the order releasing the shop in question in favour of the landlords was challenged as being obtained on misrepresentation and fraud and also on the ground that he had been afforded no opportunity of hearing. It further appears that during the pendency of the said application under Section 16 (5) of the Act, Jamuna Prasad, died on 22. 10. 78. His heirs, the present petitioners and respondent No. 6 moved an application for substitution. To that application the landlords filed objections infer alia alleging that the application was not legally maintainable as there was no provision for bringing them on record to prosecute the review application made by late Jamuna Prasad in such proceedings. The substitution application was rejected by the R. C. and E. O. by the order dated 7. 12. 78 merely on the ground that under the Act the only provision for substitution is contained in Section 34 (4) of the Act and since the said provisions applied only in the proceedings for eviction and for enhancement of rent, the application for substitution moved in proceedings under Section 16 (5)of the Act was not maintainable. The petitioners then on 14. 12. 78 moved an application purporting to be under Section 16 (5) of the Act stating therein that after the death of Jamuna prasad, they are in occupation of the shop in
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