# Smt. Shabana v. Addl. City Magistrate and another

- **Citation:** (2005) 3 ILRA 1037
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-04
- **Case number:** Civil Misc. Writ Petition No.15966 of 2005
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shabana-v-addl-city-magistrate-and-another-40574
- **Pages:** 3

## Headnote

Sri Iqbal Ahmad
S.C.

U.P. Urban Building (Regulation of rent
and
eviction)
Act
1972-Section-16
(1)(b)-release application-on the grand
of personal need-petitioner the grand
daughter of the original tenant-objected
on the ground that being grand daughter
she was residing with her grandfather-
(the
chief
tenant)-after
death
she
become the tenant-admittedly the father
of petitioner being permanent employee
in
railway
never
resided
with
his
father(the
chief
tenant)-held
under
Muslim law the grand daughter is not
within the definition of heir-when her
father never reviled with the chief tenant
for last 30 years-she cannot be allowed
to
continue
her
possession-deemed
vacancy rightly presumed.

Held-Para 6 and 9

Under Muslim Law grand-daughter of a
person is not his heir if at the tie of his
death, his son I.e. the father of the
grand-daughter is alive.

Any other relation who may be legally
entitled to reside with the tenant in the
tenanted house during the life time of
the tenant does not become tenant after
the death o the original tenant unless he
or she is tenant's legal heir also.
Supreme Court in Ganesh Trivedi Vs.
Sundar Devi A.I.R. 2002 S.C. 676 held
that real brother was not included in the
definition of family as provided under
Section-3 (g) of U.P. Act No. 13 of 1972
however, he could very well reside with
his brother tenant in the tenanted
accommodation. It has further been held
in the said authority that in case such
brother is heir of the tenant then after
the death of the tenant he becomes
tenant by virtue of the definition of the
tenant given under Section3 (a) of the
Act. In the instant case petitioner not
being the heir of original tenant she
could therefore reside along with tenant
1038 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
during his life time but she did not
become tenant after the death o the
original tenant Abid Hussain, petitioner's
grand father.
Case law discussed:
AIR 2002 Sc 676 relied on.

## Text

3 All] Smt. Shabana V. Addl. City Magistrate and another
1037
transfers ordered at the instance of
someone who has nothing to do with the
business of administration."

24. In view of the aforesaid, the
transfer order is malafide and has been
issued at the instance of the politicians
against efficient officers who were not
toeing the line of the political bosses. In
my opinion, the transfer order has been
issued in a brazen manner unabashedly at
the instance of a Minister and a M.L.A.
Although the Courts are reluctant to
interfere in the transfer orders, yet in view
of the fact, that the transfer order has been
issued malafidely at the behest of the
Minister and the M.L.A., this Court has
no option but to interfere with the transfer
order, coupled with the fact that the
transfer order was also against the
guidelines framed by the department
itself.

25. In view of the aforesaid, the
impugned transfer orders are quashed and
the writ petitions are allowed. In the
circumstances of the case, there shall be
no order as to cost.
 Petition allowed.
---------
APPELLATE JURISDICATION
CIVIL SIDE
DATED: ALLHABAD 4.8.2005

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.15966 of 2005

Shabana Smt.

 ...Petitioners
Versus
Additional City Magistrate and another

 ...Respondents

Counsel for the Petitioners:
Sri C.B.S. Yadav
Sri Rakesh Kumar

Counsel for the Respondents:
Sri Iqbal Ahmad
S.C.

U.P. Urban Building (Regulation of rent
and
eviction)
Act
1972-Section-16
(1)(b)-release application-on the grand
of personal need-petitioner the grand
daughter of the original tenant-objected
on the ground that being grand daughter
she was residing with her grandfather-
(the
chief
tenant)-after
death
she
become the tenant-admittedly the father
of petitioner being permanent employee
in
railway
never
resided
with
his
father(the
chief
tenant)-held
under
Muslim law the grand daughter is not
within the definition of heir-when her
father never reviled with the chief tenant
for last 30 years-she cannot be allowed
to
continue
her
possession-deemed
vacancy rightly presumed.

Held-Para 6 and 9

Under Muslim Law grand-daughter of a
person is not his heir if at the tie of his
death, his son I.e. the father of the
grand-daughter is alive.

Any other relation who may be legally
entitled to reside with the tenant in the
tenanted house during the life time of
the tenant does not become tenant after
the death o the original tenant unless he
or she is tenant's legal heir also.
Supreme Court in Ganesh Trivedi Vs.
Sundar Devi A.I.R. 2002 S.C. 676 held
that real brother was not included in the
definition of family as provided under
Section-3 (g) of U.P. Act No. 13 of 1972
however, he could very well reside with
his brother tenant in the tenanted
accommodation. It has further been held
in the said authority that in case such
brother is heir of the tenant then after
the death of the tenant he becomes
tenant by virtue of the definition of the
tenant given under Section3 (a) of the
Act. In the instant case petitioner not
being the heir of original tenant she
could therefore reside along with tenant
1038 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
during his life time but she did not
become tenant after the death o the
original tenant Abid Hussain, petitioner's
grand father.
Case law discussed:
AIR 2002 Sc 676 relied on.

(Delivered by Hon'ble S.U. Khan, J.)

1. Mohd. Idris landlord respondent
no.2 filed release application under
section 16 (1) (b) of U.P. Rent Regulation
Act (U.P. Act No. 13 of 1972) in respect
of house no. 184 C chandari, Kanpur. In
the release application it was stated that
Shamim Hussain (or Shamim Ahmad),
the tenant had illegally handed over the
possession of the tenanted property in
disputed to Javed Ashrad hence it was
vacant under Section 12 (1) (b) of the Act
and that landlord Mohd. Idris required
said house bonafidely for his personal
use. Petitioner Smt. Shabana is wife of
Jafar or (Zafar) Ahmad who is real
brother of Javed Ashraf.

2. During the proceedings it was
further stated on behalf of landlordrespondent no.2 that Smt. Shabana the
petitioner was residing in another house
of the same locality bearing no. 188. She
is daughter of Sahmin Husain.

3. It is not disputed that initially
Abid
Hussain
grand-father
of
Smt.Shabana i.e. father of shri Shamim
Ahmad was tenant of the house in dispute.

4.

Petitioner
contested
the
proceedings and contended that she was
residing along with her grand-father the
tenant hence after his death she became
the tenant and she was residing in the
house in dispute.

5. R.C.& E.O./Additional City
magistrate (VI), Kanpur before whom the
case was registered as case no. 38 of 1995
Mohd. Idris vs. Javed Ahmad, through
order dated 6.4.1996 declared the vacancy
of the house in dispute. The said order is
under challenge in this writ petition.

6. Under Muslim Law granddaughter of a person is not his heir if at
the tie of his death, his son I.e. the father
of the grand-daughter is alive.

7. In case the petitioner had taken up
the case that after the death of her grandfather, her father Shri Shamim Ahmad
became tenant of the house in dispute and
she was residing in the house in dispute as
family member of Shamim Ahmad then
there would not have been any vacancy
even if it was found that Shamim Ahmad
had completely withdrawn his possession
from the house in dispute. However, the
petitioner in her affidavit filed before R.C.
& E.O. copy of which is Annexure-3 to
the writ petition specifically took a
diametrically opposite case. In paragraphs
6,7,8, and 9 particularly paragraph-9 of
the said affidavit she very categorically
stated that since before the death of her
grand father I.e. Avid Hussain, her father
i.e Shamim Ahmad was residing at
Bombay and he never came back to
kanpur to reside in the house in dispute.
In para-6 it was stated that the father of
the deponent was residing at Bombay for
30 years and was employed in Indian
Railways on permanent basis and it was
impossible for him to become tenant of
the house in dispute and thereafter leave
the said house as he performed his duties
without even a short break at Bombay. It
was further stated in said paragraph that
Abid Hussain grand father of the
deponent was tenant of the house in
3 All] Shri Niwas Budhaulia & ors. V. The Secretary, Regional Transport Authority & ors. 1039
dispute and deponent was residing with
her grand-father hence after his death she
became valid tenant of the house in
dispute.
Para-9 of the affidavit is
translated below:

"That as Shamim Hussain neither
ever resided in the house in dispute nor he
was ever tenant thereof nor he ever gave
possession of the said house to any other
person"

8. After this clear admission of the
petitioner there romaine no doubt that the
house was rightly deemed to be vacant by
R.C. & E.O.

9. Absolutely no fault can be found
with the residence of the petitioner in the
house in dispute along with her grant
father who was the tenant as every tenant
is fully authorized to keep with himself
such of his relations which may not be his
family members. However, after the death
of the tenant, tenancy devolves only on
such heirs who normally resided with
him. Any other relation who may be
legally entitled to reside with the tenant in
the tenanted house during the life time of
the tenant does not become tenant after
the death o the original tenant unless he or
she is tenant's legal heir also. Supreme
Court in Ganesh Trivedi Vs. Sundar Devi
A.I.R. 2002 S.C. 676 held that real
brother was not included in the definition
of family as provided under Section-3 (g)
of U.P. Act No. 13 of 1972 however, he
could very well reside with his brother
tenant in the tenanted accornmodation. It
has further been held in the said authority
that in case such brother is heir of the
tenant then after the death of the tenant he
becomes tenant by virtue of the definition
of the tenant given under Section3 (a) of
the Act. In the instant case petitioner not
being the heir of original tenant she could
therefore reside along with tenant during
his life time but she did not become tenant
after the death of the original tenant Abid
Hussain, petitioner's grand father.

10. As the averments made by the
petitioner
herself
in
her
affidavit
completely prove vacancy hence no fault
can be found with the order passed by the
R.C. & E.O. The said affidavit is like a
self goal'.

11. Accordingly, there is not merit
in the wit petition hence it is dismissed

12. Tenants-petitioner is granted six
months time to vacate provided that
within one month from today she files an
undertaking before R.C.& E.O. that on or
before that expiry of six months she will
willingly vacate and handover possession
of the properly in dispute to the landlordrespondent no.2.
 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2005

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 25946 of 2003

Shri Niwas Budhaulia and others

 ...Petitioners
Versus
The
Secretary,
Regional
Transport
Authority, and others
 ...Respondents

Counsel for the Petitioners:
Sri H.P. Shukla

Counsel for the Respondents:
Sri R.K. Awasthi
Ms. Nand Prabha Shukla