# Sunder Devi and others v. Rent Control & Eviction Officer, Kanpur Nagar & another

- **Citation:** (2000) 3 ILRA 109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-10-31
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunder-devi-and-others-v-rent-control-eviction-officer-kanpur-nagar-another-39236
- **Pages:** 5

## Text

3All] Sunder Devi and others V. Rent Control & Eviction Officer, Kanpur Nagar & another 109
considered the matter at the trial stage and
it may have come to a contrary conclusion.

10. For the reasons stated above we
do not find any merit in the appeal and it is
accordingly dismissed.
Appeal Dismissed.

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By the Court

1. Heard learned counsel for the
petitioner and learned counsel appearing
for the contesting respondents.

2. By means of this petition filed
under Article 226 of the Constitution of
India, petitioner prays for issuance of a
writ, order or direction in the nature of
certiorari
quashing
the
order
dated
31.10.1998 passed by respondent no.1,
declaring the building in question as
vacant.

3. The dispute relates to building No.
86/382, Deo Nagar, Kanpur of which one
Sri Jagdamba Prasad Awasthi was the
original landlord. The said building was in
the tenancy of Mr. Suraj Prasad alias
Chhedi. The petitioner was permitted to
reside in the building I question in 1955 by
Sri Suraj Prasad alias Chhedi, the chief
tenant. On receipt of the application for
allotment of the said building, proceedings
under Section 16 read with Section 12 of
the U.P. Urban Buildings (Regulation of
Letting, rent and Eviction) Act, 1972 for
short, 'the Act' were initiated. On the
directions issued by the Rent Control and
Eviction officer, the building in question
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
110
was inspected by the Rent Control
Inspector. He thereafter, submitted his
report to the Rent Control & Eviction
officer, the copy of which is contained as
Annexure - 3 to the writ petition. The rent
Control Inspector, by his report dated
29.05.1998, reported that the building in
question
was
in
occupation
of
the
petitioner who was not a member of the
family of the tenant. On the basis of the
said report, the notices were issued to the
concerned parties. The petitioner filed his
objection in the said proceedings to the
effect that he happened to the real brother
of the deceased tenant. He has been living
in the building in question for the last 17
years and normally resided in the same at
the time of the death of the tenant. He
therefore being the heir of the deceased
tenant, inherited the tenancy right and was
entitled to continue in occupation of the
said building. His occupation of the
building in question was quite legal
therefore, it cannot be said to be vacant.
On the other hand, learned counsel for the
respondents no. 2 and 3 have supported the
report of the Rent Control Inspector and
stated that the petitioner although was the
real brother of the deceased but was not his
family member. They contended that he
was included in the house in 1978,
therefore, in view of the provisions of
Section 12 (I)(b) of the Act, the building in
question shall be deemed to be vacant.
Parties thereafter produced evidence in
support
of
their
cases,
oral
and
documentary.
The
Rent
Control
&
Eviction Officer, after going through the
entire material on the record, came to the
conclusion that the petitioner was inducted
in the building in question by the tenant
Shri Suraj Prasad alias Chhedi in the year
1978. Petitioner was not a family member
of the deceased tenant, therefore, the
building in question shall be deemed to be
vacant in view of the provisions of Section
12(I)(b) of the Act, that after the death of
the tenant, possession of the petitioner
cannot be legalised and declared the
building in question as vacant by the
impugned
order
dated
31.10.1998.
Challenging the validity of the said order,
the present petition has been filed.

4. Learned counsel for the petitioner
vehemently urged that the petitioner was
the heir of the deceased tenant, he
therefore, on his death, inherited the
tenancy right in the building in question
and his occupation cannot be said to be
unauthorised and illegal, therefore, the
order declaring the vacancy was liable to
be quashed.

5. On the other hand, learned
counsel; appearing for the contesting
respondent submitted that the petitioner
was inducted in the building in question in
1978 in contravention of the provisions.
After the death of the tenant, the
occupation of the petitioner cannot be
legalised. The writ petition was therefore,
liable to be dismissed.

6. The questions which arise for
consideration in this case, are as to
whether petitioner was an authorised
occupant of the building in question or he
has, on the death of late Suraj Prasad alias
Chhedi, inherited the tenancy rights in the
building in question and thereafter, he was
lawful occupant of the same. For resolving
the aforesaid controversy, provisions of
Section 3(a),(g), Section 12(I) and clause
(a ) of Sub-section (4) of section 34 of the
Act are relevant which are reproduced
below :-

"3. Definition:- In this Act, unless the
context otherwise requires-
3All] Sunder Devi and others V. Rent Control & Eviction Officer, Kanpur Nagar & another 111
(a) "tenant", in relation to a building,
means a person by whom its rent is
payable, and on the tenant's death-
(1) in the case of a residential building,
such only of his heirs as normally resided
with him in the building at the time of his
death;
(2) in the case of a non-residential
building his heirs;

[Explanation - An occupant of a room in
a hotel or a lodging house shall not be
deemed to be a tenant];

(g) "family", in relation to a landlord or
tenant of a building, means, his or her -
(i) Spouse
(ii) male lineal descendants,
(iii) such parents, grandparents and any
unmarried or widowed or divorced or
judicially separated daughter or daughter
of a male lineal descendant, as may have
been normally residing with him or her,
and includes, in relation to a landlord, any
female having a legal right of residence in
that building;

"12.
Deemed vacancy of building in
certain cases. -
A landlord or tenant of a building shall be
deemed to have ceased to occupy the
building or a part thereof if-
(a)......................
(b) He has allowed it to be occupied
by any person who is not a member of his
family, or

34. Powers of various authorities and
procedure to be followed by them - (I)
The District Magistrate, the prescribed
authority or any appellate or revising
authority shall for the purpose of holding
any inquiry or hearing any appeal or
revision under this Act have the same
powers as are vested in the Civil Court
under the Code of Civil Procedure, 1908
(Act No. V of 1908), when trying a suit, in
respect of the following matters namely,-
.................................
(2)...............................
(3) ..............................
(4) Where any party to any
proceedings for the determination of
standard rent of or for eviction from a
building dies during the pendency may be
continued after bringing on the record:-
(a) in the case of the landlord or tenant,
his heirs or legal representatives:
(b) in the case of unauthorised occupant,
any person claiming under him found in
occupation of the building.

7. Admittedly, the building in
question is a residential building and the
petitioner is a real brother of the tenant,
late Suraj Prasad alias Chhedi. It is also
not disputed that petitioner was found
normally residing with the tenant at the
time of his death.

8. A combined reading of the above
noted statutory provisions reveals that an
heir, to be determined in accordance with
the personal law of the tenant concerned,
may be the member of the family or not
within the meaning of the term used under
the Act, can be permitted to reside with the
chief tenant during his lifetime in as much
as the tenancy right could be inherited only
by the heir or heirs who normally resided
with the tenant at the time of his death in
the disputed building. The induction of the
heir in the building, therefore, will not
cause vacancy within the meaning of the
term
used
under
the
Act.
Any
interpretation to the contrary would render
the above noted provisions redundant, or
contradictory
to
each
other
and
unworkable in as much as if the induction
of an heir results in vacancy, Section
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
112
3(a)(1) and clause (b) of sub-section (I) of
Section 12 would become contradictory to
each other n as much as the spirit/object of
the Act is that the heirs of the tenant shall
inherit the tenancy rights, may be members
of his family or not and unless an heir is
permitted to reside in the building in
question sometime before the death of the
tenant he cannot be said to have resided
normally with the deceased tenant at the
time of his death. The induction of an
heir, therefore will not cause vacancy in
the building. Any interpretation to the
contrary,
would
result
in
conflict
harmoniously interpreted.

9. In Smt. Rukmani Devi Vs, A.D.J.
Kanpur and others, 1977 A.R.C. page 72
while considering the provisions of section
3(a) and (g), it was ruled by this Court that
premises in dispute being a residential
building, the petitioner (who was married
daughter of the tenant) who resided with
the tenant at the time of his death, would
be a tenant within the meaning of the word
under Section 3(a) of the Act, referred to
the definition of word 'family 3(g) had no
relevance.

10. In Munni Lal Vs. Smt. Sheo Dei,
1981 A.R.C. (Short Note Cases 13), it was
held that there as no warrant for giving to
the word "heirs', as occurring in Section
3(a) (1), a restricted meaning and limiting
it to the members of the family of tenant,
as defined in Section 3(g). In the said case,
it was further held that married daughter
residing with her parents would be an heir
of tenant within the meaning of Section
3(a) of the Act irrespective of whether or
not she would be regarded as a member of
the family as defined under Section 3(g)
of the Act. Therefore, Section 12(1)(b) of
the Act was not attracted because the
accommodation cannot be treated to be
vacant
merely
because
the
married
daughter was allowed to reside with her
parents. She could not deemed to have
occupied the accommodation.

11. In Om Prakash and others Vs.
Prescribed Authority and others, 1984 (2)
A.R.C. 683, it was held that the definition
of the word, "family was not relevant for
the purposes of determining the question
as to who would become tenant on the
death of original tenant. On the death of
the original tenant of a residential building,
his heir living with him at the time of
death, will become tenant and there would
be no vacancy in the building on the death
of the original tenant.

12. In Dr. Ram Narain Bagley Vs. D.
J. Saharanpur and others, 1997(1) ARC
199, it was held that it was clear that under
Section 3(a)(1) of the Act, there is an
specific provision that in case of a
residential building, only such heir will
inherit tenancy rights who resided in the
building at the time of death of the tenant.
Under the provisions of the Act, there was
no distinction between the contractual and
statutory tenant to inherit the rights of the
tenant. In case of a residential building ,
only such heirs of the deceased tenant
would inherit the tenancy rights who were
normally residing with him in the building
at the time of his death. Similar view was
expressed by this Court in Surendra Kumar
Vs. A.D.J. Kanpur Nagar and others,
1998(33) A.L.R. 306 and in Pradeep
Kumar
Katiyar
Vs.
II
Addl.
City
Magistrate and another, 2000(38) A.L.R.
550.

13. In view of the aforesaid
decisions, it can easily be held that by
allowing an heir to occupy the building
even if he is not member of his family, no
3All] Shiv Singh Rana V. The Dy. Registrar Sahkari Societies, Agra and others
113
vacancy shall be caused in the
building. In the present case, the authority
below has erred in law and committed a
mistake which is apparent on the ace of the
record in holding that by induction of the
petitioner by the deceased tenant resulted
in vacancy in the building in question,
particularly when it was not disputed that
the petitioner was the real brother and only
heir of the deceased tenant. Thus in my
opinion neither on induction of the
petitioner in the building I question nor on
the death of the original tenant the building
in question fell vacant. This writ petition,
therefore, deserves to be allowed.

14. The Writ petition succeeds and is
allowed with cost. The order dated
31.10.1998
is
hereby
quashed.
The
respondents are restrained from interfering
in the possessions of the petitioner over the
building in question except in accordance
with law.
Petition Allowed.

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By the Court

1. Heard counsel for the parties.

2. The Petitioner was a Secretary of a
Co-operative Society. He was charge
sheeted and after an enquiry he was found
guilty and his service was terminated, vide
order dated 28th September 1999. He filed
an appeal against the termination order,
which has been dismissed. Aggrieved, this
Writ Petition has been filed.

3. A perusal of the appellate order
dated 15th January 2000, copy of which is
Annexure CA-14 to Counter Affidavit,
shows that the Appellate Authority has not
recorded any reasons for upholding the
order of the Original Authority. The
Appellate Authority has merely recorded
the
facts
and
thereafter
given
its
conclusion. There is a distinction between