Smt. Kanti Devi vs Kaushal Kumar And 3 Ors.
2017 Latest Caselaw 4003 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								        A.F.R.
 
Court No. - 2
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5012 of 2017
 

 
Petitioner :- Smt. Kanti Devi
 
Respondent :- Kaushal Kumar And 3 Ors.
 
Counsel for Petitioner :- Rohan Gupta
 
Counsel for Respondent :- Atul Dayal
 

 
Hon'ble Surya Prakash Kesarwani,J.

1-Heard Sri Rohan Gupta, learned counsel for the petitioner-defendant/tenant and Sri Atul Dayal, learned counsel for the respondents.

2-This petition under Article 227 of the Constitution of India, has been filed by the petitioner-tenant praying to set aside the impugned order dated 28.1.2016, under Section 12(3) of U.P. Act No.13 of 1972 and the order dated 16.7.2016 in Case No.03 of 2015 and Case No.24 of 2013 (Kaushal Kumar v. Sushil Kumar Srivastava (since deceased) ), under Section 12(1)/16(1) (b) of U.P. Act No.13 of 1972 passed by the Rent Control and Eviction Officer/Additional City Magistrate-VI, Kanpur Nagar with respect to residential house No.2/372, Nawabganj, Kanpur Nagar and the order dated 29.7.2017 in Rent Revision No.45 of 2016. (Smt. Kanti Devi v. Kaushal Kumar and others ) passed by the Additional District Judge (Court No.12), Kanpur Nagar.

3-Briefly stated facts of the present case are that the disputed house was originally owned by one Smt. Leela Devi, who inducted one Sri Bhagwati Prasad Khare (hereinafter referred to as the 'Original Tenant'). The original tenant died in the year 1962. The tenancy was succeeded by his three sons, namely, Sri Raghunath Prasad Khare, Hanuman Prasad Khare and Sri Dinesh Chandra Khare, who became joint tenant. Sri Hanuman Prasad Khare died in the year 1972, leaving behind his wife Smt. Kanti Devi. Thus, after the death of Sri Raghunath Prasad Khare, she and aforesaid two brothers of her late husband became joint tenant of the disputed house. Sri Hanuman Prasad Khare and Sri Dinesh Chandra Khare acquired alternate accommodation in Kanpur Nagar. Thereafter, the disputed house was purchased by one Sri Shushil Kumar in the year 2003 by way of a registered sale deed. Thus, he stepped into the shoes of original landlord, namely, Smt. Leela Devi. It appears that an application for allotment of the disputed house under Section 12(1) of U.P. Act No.13 of 1972, was filed by the respondent no.1 in the year 2007 before the Rent Control and Eviction Officer/Additional City Magistrate-VI, Kanpur Nagar ( hereinafter referred to as the 'RCEO ), which was registered as Case No.17 of 2007. By order dated 21.8.2007, the aforesaid Case No.17 of 2007 was dismissed by the Rent Control and Eviction Officer.

4-Aggrieved with this order, the respondent no.1 filed a Revision No.82 of 2011, which was allowed and the order of the Rent Control and Eviction Officer dated 21.8.2007 was set aside and the matter was remitted back to the Rent Control and Eviction Officer to decide the allotment application after due consideration to the facts and evidences on record. On remand, the case was numbered as Case No.24 of 2013 in which the impugned orders dated 28.1.2016 and 16.7.2016 have been passed.

5-In Case No.24 of 2013 before the Rent Control and Eviction Officer, the defendant-petitioner Smt. Kanti Devi Khare took the stand that initially, she was occupying five rooms and two small rooms and certain other accommodation as tenant in the disputed house but the landlord Sri Sushil Kumar cleverly got an allotment of a portion of the disputed house in the name of one Sri Arun Kumar, who is now occupying three rooms and certain other accommodation since 9.9.2003. The rest of the portion is still in her tenancy. The applicant before the Rent Control and Eviction Officer moved an application for allotment under Section 12(1) of U.P. Act No.13 of 1972 in view of the fact that the defendant- petitioner, Sri Hanuman Prasad Khare and Dinesh Chandra Khare were joint tenants and two of them, namely, Sri Hanuman Prasad Khare and Sri Dinesh Chandra Khare have acquired their own separate houses in Kanpur Nagar. The fact that the joint tenants Sri Hanuman Prasad Khare and Sri Dinesh Chandra Khare have acquired separate houses in Kanpur Nagar has neither been disputed before the Rent Control and Eviction Officer nor it has been disputed before this Court. Considering the facts and circumstances of the case and evidences on record, the Rent Control and Eviction Officer passed the impugned order dated 28.1.2016 declaring the vacancy of the accommodation in occupation of the defendant-petitioner.

6-After the vacancy was declared by the aforesaid order dated 28.1.2016, Sri Sushil Kumar Srivastava filed a release application dated 22.2.2016, under Section 16(1)(b) of U.P. Act No.13 of 1972. Thereafter, the petitioner-defendant filed a review application. The vacancy declared by the impugned order dated 28.1.2016 was upheld by the impugned order dated 16.7.2016. The review application of the petitioner-defendant was rejected and the release application of Sri Anand Srivastava ( heir of Sri Sushil Kumar Srivastava (since deceased) ) was allowed. The release was made subject to the condition that the accommodation of the disputed house shall be used by the landlord only for his own residential purpose and shall not be let out.

7-Aggrieved with the aforesaid two orders, the defendant-petitioner filed a Rent Revision No.45 of 2016 (Smt. Kanti Devi v. Kaushal Kumar and others ), which was dismissed by the impugned order dated 29.7.2017.

8-Aggrieved with the aforesaid three orders, the present petition has been filed.

9-Learned counsel for the defendant- petitioner submits as under :

(i) The property was purchased about 13 years ago but the landlords have not raised any objection to the occupation of the tenanted portion and, therefore, the application for vacancy under Section 12 of U.P. Act No.13 of 1972 was barred by limitation and acquiescence.

ii) Though the Division Bench Judgement in the case of Arun Kumar Joseph Vs. Victor Samuel Mathews and another, 2014 (1)AWC AWC 551, may prima facie appear to be against the petitioner-defendant, yet the principles of acquiescence shall apply and even the statutory right of vacancy application under Section 12 of the Act shall stand waived.

iii) Section 12 (3) of the Act is not attracted in the present set of facts inasmuch as the brother does not fall within the meaning of the word "family".

10-Sri Atul Dayal, learned counsel for the respondents submits that the controversy raised by the petitioner-defendant in this petition is squarely covered by the Division Bench judgment in the case of Arun Kumar Joseph (supra)  and the judgement of three Judges Bench of Hon'ble Supreme Court in the case of Harish Tandon v. Additional District Magistrate, Allahabad, U.P. and others, (1995) 1 SCC 537 (Paragraph Nos. 19 to 23 ).

11-With the consent of the learned counsels for the parties, the following questions are being framed for determination :

"(1) Whether under the facts and circumstances of the case, the tenancy of the defendant-petitioner was a joint tenancy attracting the provisions of Section 12(3) of the Act in the event that separate houses were acquired by the other joint tenants, namely, Sri Hanuman Prasad Khare and Sri Dinesh Chandra Khare ?

(2) Whether under the facts and circumstances of the case, the impugned orders holding the vacancy of the tenanted portion of the disputed house under Section 12(3) of the Act is erroneous ?

(3) Whether the brothers of the husband of the defendant-petitioner could be treated as joint tenant even though they do not fall within the meaning of the word 'family' under section 3(g) of the Act ?"

12-I have carefully considered the submissions of the learned counsels for the parties.

13-In the case of Harish Tandon (supra), Hon'ble Supreme Court considered the provisions of Section 12(3) of the Act, and the Explanation (b) appended thereto and held as under :

"22. The attention of the learned Judges constituting the Bench in the case of H.C. Pandey v. G.C. Paul  (supra) was not drawn to the view expressed in the case of Mohd. Azeem v. District Judge, Aligarh (supra). There appears to be an apparent conflict between the two judgments. It was on that account that the present appeal was referred to a Bench of three Judges. According to us, it is difficult to hold that after the death of the original tenant his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. This can be examined with reference to Section 20 (2) which contains the grounds on which a tenant can be evicted. Clause (a) of Section 20 (2) says that if the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then that shall be a ground on which the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after the death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is a default as provided in clause (a) of sub-section (2) of Section 20 in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming independent tenants is to be introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in default thereto such heir or heirs alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, among the heirs as against the landlord what the heirs do inter se, is their concern. Similarly, so far as ground (b) of sub-section (2) of Section 20, which says that if the tenant has wilfully caused or permitted to be caused substantial damage to the building, then the tenant shall be liable to be evicted; again, if one of the sons of the original deceased tenant wilfully causes substantial damage to the building, the landlord cannot get possession of the premises from the heirs of the deceased tenant since the damage was not caused by all of them. Same will be the position in respect of clause (c) which is another ground for eviction, i.e. the tenant has without the permission in writing of the landlord made or permitted to be made, any such construction or structural alteration in the building which is likely to diminish its value or utility or to disfigure it. Even if the said ground is established by the landlord, he cannot get possession of the building in which construction or structural alterations have been made diminishing its value and utility, unless he establishes that all the heirs of the deceased tenant had done so. Clause (d) of subsection (2) of Section 20 prescribes another ground for eviction that if the tenant has without the consent in writing of the landlord, used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; the landlord cannot get possession of the building unless he establishes the said ground individually against all the heirs. We are of the view that if it is held that after the death of the original tenant, each of his heirs becomes independent tenant, then as a corollary it has also to be held that after the death of the original tenant, otherwise single tenancy stands split up into several tenancies and the landlord can get possession of the building only if he establishes one or the other ground mentioned in sub-section (2) of Section 20 against each of the heirs of original tenant. One of the well settled rules of interpretation of statute is that it should be interpreted in a manner which does not lead to an absurd situation.

23. It appears to us, in the case of H.C. Pandey v. G.C. Paul (supra) it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants."

(Emphasis supplied by me )

14- In the present set of facts it is undisputed that the original tenant was Sri Bhagwati Prasad Khare. After his death in the year 1962, the tenancy was devolved on his three sons, who became the joint tenant. Such tenancy is not divisible. The incidence of tenancy is the same as those enjoyed by the original tenant. The tenancy of defendant- petitioner, Sri Hanuman Prasad Khare and Sri Dinesh Chandra Khare was a single tenancy. There was no division of the premises or of the rent payable for the tenanted accommodation. The aforesaid heirs succeeded the tenancy as joint tenant. Under the circumstances, the acquisition of the house by two joint tenants, namely, Sri Hanuman Prasad Khare and Sri Dinesh Chandra Khare has attracted the provisions of Section 12(3) of the Act. The facts and the legal position, as stated above, lead to an irresistible conclusion  that the Rent Control and Eviction Officer has not committed any error of law in declaring the vacancy of the disputed accommodation. Thus, the revisional court has also not committed any error of law to uphold the order of the Rent Control and Eviction Officer. Thus, the impugned orders do not suffer from any manifest error of law. The release application filed by the respondent Nos. 2,3 and 4 under section 16(1) (b) of the Act, was lawfully allowed, inasmuch as there was vacancy under Section 12 of the Act. Question No.(1) and (3) as framed above, are answered accordingly.

15-In the case of Arun Kumar Joseph (supra), a Division Bench of this Court answered the question of limitation under Section 12 of the Act. The questions as framed in para 2 and answered in para 21 of the judgment in the case of Arun Kumar Joseph (supra) are reproduced below :

(2) By a specific order passed on 19.05.2011 in the first case of Arun Kumar Joseph, a learned Single Judge has referred two questions of law for determination by a Larger Bench in the light of apparent conflict between two sets of judgments passed by different Benches of learned Single Judges. The connected matters are to be governed by the answers to the issues under reference. The questions of law referred are as follows :

"(a). Whether release application by landlord can be said to be barred by limitation if the same is presented after more than 12 years from the date person is said to have entered into an unauthorized occupation of the premises covered by U.P. Act No.13 of 1972;

(b) Whether in absence of any limitation being provided under U.P. Act No.13 of 1972 for initiation of release proceedings, qua deemed vacancy can any period of limitation, be read in the statutory provisions, on the principle that the power/right vested must be exercised within reasonable time."

Answer

21. For all the aforesaid reasons, we have no hesitation in answering the questions under reference in the following terms:-

"(i) Answer to Question No.(a):- Release application by landlord cannot be treated to be barred by limitation even if the same is presented after more than 12 years from the date person has entered into an unauthorised occupation of the premises covered by the Act.

(ii) Answer to Question No.(b):- In absence of any limitation being provided under the Act for initiation of release proceedings in respect of deemed vacancy, no period of limitation can be read in the statutory provisions only on the principle that a power vested in an authority must be exercised within a reasonable time."

16- Learned counsel for the defendant-petitioner admits that the judgment in the case of Arun Kumar Joseph (supra) covers the question No.2 but submits that principles of acquiescence and waiver shall apply and, therefore, the application of the respondent-landlords was liable to be rejected. He further submits that the matter may be referred to larger bench.

17-Submission of the defendant-petitioner has no substance. The judgment in the case of Arun Kumar Joseph (supra) being a Division Bench judgment of this Court is binding on me. Therefore, the question No.2 is answered in terms of the judgment in the case of Arun Kumar Joseph (supra).

18-In view of the above discussions, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed.

Order Date :- 6.9.2017

Ak/