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2003 Supreme(All) 1477
HIGH COURT OF ALLAHABAD
Rajesh Tandon
SABIRA BANU
Versus
MOHAN SINGH
Decided On : 15 July 2003
Writ Petition No. 7022 of 2001
B.C.PANDEY, G.S.Bisht,
The legal representative is entitled to prosecute the application further based on their own need in substitution of the deceased landlord, and the original application cannot be defeated by the landlord's death.
Headnote:
Article 226 - Writ Petition - U. P. Act XIII of 1972 - Section 21 (1) (a), Rule 25 - Summary of Acts and Sections: The court discussed the application under Section 21 (1) (a) of U. P. Act XIII of 1972, the provisions of Rule 25, and the implications of Section 21 (7) introduced by U. P. Act No. 28 of 1997. The court also referenced legal precedents such as Birendra Nath v. VIth A. D. J., Moradabad, M/s. N. Nandi Prasad v. Ramesh Chandra Gupta, Raghunath G. Panhale v. Chaganlal Sunderji & Co., Shiv Shakti Co-op. Housing Society, Nagpur v. M/s. Swaraj Developers and others, and Kamleshwar Prasad v. Pradumanju to interpret the legal provisions and their application in the present case.
Fact of the Case:
The petitioner filed a writ petition challenging the order allowing the application under Rule 25 of U. P. Act XIII of 1972, which substituted the heirs of the deceased landlord in a dispute over the release of a shop.
Finding of the Court:
The court found that the original application under Section 21 (1) (a) could not be defeated by the death of the landlord, and the legal representative was entitled to prosecute the application further based on their own need in substitution of the deceased. The court also emphasized the significance of the word 'further' in the legal provisions and referred to relevant legal precedents to support its findings.
Issues: The issues included the jurisdiction of the order allowing the application under Rule 25, the impact of the landlord's death on the original application, and the eligibility of the legal representative to be substituted under the Act.
Ratio Decidendi: The court held that the original application could not be defeated by the landlord's death, and the legal representative was entitled to continue the application based on their own need. The court also emphasized the significance of the word 'further' in the legal provisions and referred to legal precedents to support its decision.
Final Decision: The writ petition was dismissed, and the court held that there was no substance in the petition.
The present writ petition under Article 226 of the Constitution of India has been filed by the petitioner challenging order dated 21-9-2001 by which application filed by the respondent No. 1 substituting the heirs of Narain Singh has been allowed.
The brief facts giving rise to the present writ petition are that an application under Section 21 (1) (a) was filed on 20-8-1993 by Sri Narain Singh praying for release of accommodation i. e. shop No. 2 Mohan Niwas Malli Bazar, Bhawali, District Nainital in his favour. In para 4 of his application Sri Narain Singh has described family members of his family as under:
(1) Appellant self, (2) Smt. Narain Singh (wife), (3) Mohan Singh (son), (4) Smt. Mohan Singh (daughter in law), (5) Master Kirti Bardhan (grandson), (6) Gaurav Bardhan (grandson), (7) Yas Bardhan (grandson), (8) Diwan Singh (brother), (9) Pratap Singh (nephew), (10) Smt. Pratap Singh (wife of the nephew), (11) Lalit Singh (grandson), (12) Balbahadur (grandson ).
2. In paragraph 5 of the application, the landlord Narain Singh has state that he wants to establish his own business as well as the business of his grand sons. Further in paragraph 8 of the application, it has been specifically stated that the shop is required for the family members of the landlord. During the pendency of the application Narain Singh died on 28-12-1999 and as such on 12-1-2001 Mohan Singh has filed an application under Rule 25 of U. P. Act XIII of 1972 Paper No. 141-C supported by Affidavit 142-C, stating therein that he is the sole legal representative of deceased Narain Singh. The application was replied by the petitioner stating therein that Mohan Singh is not legal representative and in fact he is nephew of Narain Singh. The objection is Paper No. 144-C supported by Affidavit 145-C.
3. Rejoinder affidavit was also filed by Sri Mohan Singh stating therein that after the death of Narain Singh he is the only legal representative as he is the adopted son of Narain Singh. According to the pleadings of the parties adoption had taken place on 6-5-1955 and since then there is relationship of father and son between Narain Singh and Mohan Singh and further Narain Singh has treated Mohan Singh as his son and also gave him education at his residence. The Prescribed Authority vide his order dated 21-9-2001 has allowed the application and substituted Mohan Singh in place of deceased Narain Singh. The present writ petition has been filed challenging the order dated 21-9-2001 allowing the application under Rule 25 of U. P. Act, XIII of 1972.
4. Heard Sri B. C. Pandey, Advocate on behalf of the petitioner and Sri G. S. Bisht on behalf of respondent landlord at great length.
5. It has been vehemently argued by Sri B. C. Pandey inter alia that the order dated 21-9-2001 allowing the application under Rule 25 is completely without jurisdiction; the application under Section 21 (1) (a) has become infructuous after the death of Narain Singh in view of Clause (7) of Section 21 of the Act; the cause of action, therefore, has already perished after the death of Narain Singh; Mohan Singh is not the legal heir of Narain Singh so as to get himself substituted under the provisions of family member as defined under the Act.
6. According to Sri B. C. Pandey Section 21 (7) provides that the heirs have to establish their own requirements in order to succeed under Section 21 (1) (a) of U. P. Act XIII of 1972. It may be pointed out that sub-section (7) of Section 21 was introduced by inserting U. P. Act No. 28 of 1997 with effect from 5- 7-1997. The same is quoted below:
" (7) Where during the pendency of an application under Clause (a) of sub-section (1), the landlord died, his legal representative shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased. "
7. As will appear from sub-section (7) that original application under Section 21 ( (1) (a) cannot be defeated on account of the deat
