Chetan Swaroop Asthana vs Additional District Judge Court ...
2019 Latest Caselaw 3215 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - A No. - 52293 of 2017
 

 
Petitioner :- Chetan Swaroop Asthana
 
Respondent :- Additional District Judge,Court No. 17 And 3 Others
 
Counsel for Petitioner :- Vinod Sinha,Mahesh Sharma
 
Counsel for Respondent :- C.S.C.,Arun Kumar Shukla,Atul Dayal,Shashi Kant Srivastava
 

 
Hon'ble Siddhartha Varma,J.

This writ petition has been filed against the orders passed under Section 12 (3) of the U.P. Urban Building (Regulation of Letting Rent and Eviction), Act, 1972, (hereinafter referred to as ' the 1972 Act'). Initially an application was filed by Atul Kumar Dubey, the respondent no. 3, that house no. 562 Rail Bazar, Kanpur Nagar, in which the petitioner alongwith his three borthers was a tenant had become vacant on account of the fact that Ram Swaroop Asthana, brother of the petitioner, had taken up residence in the same city which was numbered as house no. 150, Rampuram Teachers' Society, Shyam Nagar, Kanpur Nagar, and was residing there alongwith his family. Filing of the application was followed by a local inspection, the report of which was submitted in the Court on 20.5.2014. Upon the exchange of affidavits, the Rent Control and Eviction Officer, Kanpur Nagar, declared, the portion in which the petitioner alongwith his three brothers was a tenant in house no. 562/28 Rail Bazar Kanpur Nagar, vacant on 30.4.2015.

The petitioner filed a Review Petition which was dismissed on 25.4.2016 and on that very date the applicant Atul Kumar Dubey was allotted the premises in question at the rate of Rs. 100/- per month. The petitioner filed a Revision against the declaration of the vacancy and also against the allotment. This Revision was dismissed on 7.10.2017. Hence, the instant writ petition was filed.

Learned counsel for the petitioner submitted that the premises in question was occupied by his father Govind Swaroop Asthana as tenant and after he died in the year 1962, the tenancy of the premises in question was inherited by his mother Kamla Devi, and his brothers Bhagwan Swaroop Asthana, Ram Swaroop Asthana, Shiv Swaroop Asthana and he himself. However with the passage of time Bhagwan Swaroop Asthana shifted to Lakhimpur Khiri, Ram Swaroop Asthana shifted to his own house in Kanpur Nagar and Shiv Swaroop Asthana was staying at Obra i.e. the place of his job. The petitioner submitted that he had been staying continuously ever since his birth in the premises in question and submitted that because of the shifting of Ramswaroop Astahana in theyear 1988 to a different premises in the same city, it could not be said that the premises in question had fallen vacant.

Learned counsel further submitted that after the death of Govind Swaroop Asthana, the brother Ram Swaroop Asthana was not residing with him and, therefore, it could not be said that as per Section 3 (a) Ram Swaroop Asthana was a tenant of the premises in question.

Learned counsel for the petitioner further submitted that when at the point of time when Sri Atul Kumar Dubey applied for the declaration of vacancy of the premises in question, the brother of the petitioner, Ram Swaroop Asthana had already shifted to a different accommodation in the year 1988 and, therefore, it could not be said that he was normally residing with the petitioner. Learned counsel for the petitioner further submitted that when the landlord had sent a notice to the petitioner it was sent only to him as a tenant and not to any of the other tenants.

Learned counsel for the petitioner stated that as per the law laid down in the judgement reported in 1995 (1) SCC 537 (Harish Tandon vs. Additional District Magistrate, Allahabad, U.P.), a brother who had not been normally residing with the petitioner, who was now the tenant, or was not wholly dependent upon him if took up residence elsewhere in the same city or town then there shall be no question of any vacancy arising. Since the learned counsel for the petitioner read out paragraph 19 of the judgement, the same is being reproduced here as under:-

"So far as sub-section (3) of Section 12 is concerned, it says that in case of residential building, if the tenant or any member of his family builds or otherwise acquires, in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area, in which the building under tenancy is situate, the tenant "shall be deemed to have ceased to occupy the building under his tenancy". It was submitted that if full effect is given to the deeming clause, then in a house where the tenant was living with his four sons, one of his sons getting any accommodation in the same city or town, the tenant alongwith his remaining three sons have to be evicted which shall lead to an absurd result. Although we are not concerned in the present case with the scope of sub-section (3) of Section 12, but in order to appreciate the submission made on behalf of the respondents, we may point out that sub-section (3) of Section 12, does not conceive that if one of the sons living with the tenant, who is not wholly dependent on such tenant, acquires any other residential building in the same city or town, then even the original tenant shall be deemed to have ceased to occupy the building in question. This is apparent from Explanation (b) to said sub-section (3) which says:-

"the expression 'any member of family', in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant."

In view of the explanation any member of the family mentioned in sub-section (3) shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant. As such, if a son of the tenant who is not wholly dependent on such tenant acquires or gets any residential building in the same city or town, there is no question of the tenant deeming to have ceased to occupy the building under sub-section (3) of Section 12."

In the end learned counsel for the petitioner submitted that as per the Rule 10 (6) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Rules, 1972 if a member of the family had taken up or acquired an accommodation elsewhere within the city then the District Magistrate could see if the two accommodations, namely, the one occupied by the tenant who was staying in the tenanted building and the other to which the member of the family had shifted were separate and as to whether the messing of the two families was separate. Thereafter, the District Magistrate could allot the residential building deemed to have become vacant in which the tenant was still occupying as per the Rule. The Rule 10(6) of the Rules, 1972, alongwith the proviso is being reproduced here as under:-

"Rule 10 (6)- A person who is deemed to have ceased to occupy a building within the meaning of Section 12(1)(b), or who is evicted under Section 21 by virtue of being a tenant referred to in Explanation (1) of Section 21(1) shall not be allotted that or any other residential building and a person who is deemed to have ceased to occupy a building within the meaning of Section 12(2), shall not be allotted that or any other non-residential building for a period of two years from the date of such eviction or deemed cessation, as the case may be:

Provided that -

(a) if the District Magistrate is satisfied in a case referred to in Section 12(2) that the admission of partner or new partner is bona fide transaction and not a mere cover for sub-letting, he shall, if any application had been made in that behalf before the admission of such partner or new partner, allot the non-residential building in question afresh to the newly constituted or re-constituted firm;

(b) in the case of a residential building under the tenancy of a person who shall be deemed by virtue of Section 12(3) to have ceased to occupy it by reason of his or any member of his family building or otherwise acquiring in a vacant state or getting vacated another residential building in the same local area, whether that other building is built or acquired or got vacated before or after the date of commencement of the Act, if the District magistrate is satisfied that the two buildings are occupied by the tenant and a member of his family separately, and that they are separate in messing, the District Magistrate may reallot the residential building deemed to be vacant under Section 12(4) to the said tenant or to the said member of his family, as they case may be;

(c) in the case of a residential building under the tenancy of a person who shall be deemed by virtue of the proviso to Section 12(3) to have ceased to occupy it upon the expiration of a period of one year from the date of commencement of the Act by reason of his or any member of his family having built another residential building in the same local area, where that other building was let out at the commencement of the Act and the tenant or the member of his family, as the case may be, has been unsuccessful in spite of his best efforts in securing vacant possession thereof the District Magistrate may postpone the making of allotment order in respect of the building deemed to be vacant under Section 12(4)."

In reply, learned counsel for the landlord and the learned counsel for the applicant on whose application vacancy was declared submitted as follows-

I. Section 12 (3) is very clear that if a member of the family who had been residing with the tenant or if the tenant himself shifts then vacancy had to be declared. In the instant case, he submits, the father of the petitioner Govind Swaroop Asthana was the tenant. Upon his death, his widow Kamla Devi and his four sons became joint tenants and when in 1988 Ram Swaroop Asthana who was also a tenant shifted then there was a deemed vacancy as per the provisions of the Act.

II. It mattered little that Ram Swaroop Asthana had shifted in the year 1988 and the application was filed on 28.1.2014. He submits that there is no limitation prescribed within which the application for getting the declaration of vacancy had to be filed. Fact of the matter was that the premises had become vacant and it could be now allotted afresh.

III. Learned counsel submitted that when a joint tenant had, namely, Sri Ram Swaroop Asthana shifted, then as per 1995 (1) SCC 537 the only inescapable conclusion was that since he had taken up residence elsewhere the premises in question had become vacant. No discretion was left with the Court to enquire or investigate as to why and under what circumstances, the joint tenant who was living in the premises in question had left and taken up residence elsewhere.

IV. Here the question was not as to whether the persons who were normally residing with the tenant had left the premises and, therefore, the same had become vacant. Since Ram Swaroop Asthana was as much a tenant as the petitioner was and since he had vacated the premises and had taken up residence elsewhere then the only conclusion was that the tenanted premises had fallen vacant.

Having heard the learned counsel for the parties and after having gone through the impugned orders, I feel that there is no dispute regarding the fact that after the death of Govind Swaroop Asthana his widow Kamla Devi and his sons Bhagwan Swaroop Asthana, Ram Swaroop Asthana, Shiv Swaroop Asthana and Chetan Swaroop Asthana (petitioner) became joint tenants. When in the year 1988 Ram Swaroop Asthana took up a separate residence, then definitely a vacancy arose. Since for a declaration of vacancy no limitation had been provided it cannot be said that the application for the declaration of a vacancy was filed belatedly. Further, no finding had to be arrived at as to whether Ram Swaroop Asthana was normally residing or was dependent on the tenant. He was not a separate family member of any tenant. He was himself a joint tenant and therefore no finding to that effect was required.

However, as per Rule 10 (6) of the Rules while allotting the premises in question, the District Magistrate should have seen as to whether the brother who had separated and the petitioner were messing together or were they messing separately. If the District Magistrate found that the petitioner and Ram Swaroop Asthana were messing separately then he could have re-allotted the residential building deemed to have become vacant to the tenant who was already residing in the premises.

Under such circumstances, so far as the order declaring vacancy is concerned, is maintained. However, the District Magistrate shall undertake the exercise of seeing as to whether the petitioner and his brother who had taken up a separate residence, namely, Ram Swaroop Asthana were messing together or were they separately messing as per the Rule 10(6) of the Rules. If it is found that they were having separate kitchens then the District Magistrate will have no other option but to reallot the premises in question to the petitioner.

Under such circumstances, the order dated 25.4.2016 by which the premises had been allotted to the respondent no. 3 Atul Kumar Dubey is quashed. The District Magistrate/Rent Control and Eviction Officer shall undertake a fresh exercise of allotment in the manner mentioned above.

Till orders are passed on the allotment application, the petitioner may not be asked to vacate the premises in question.

However, if the Rent Control and Eviction Officer/District Magistrate concludes that the petitioner could not be given the premises in question then as per Rule 10(6) of the Rules, he may allot the same to the respondent no. 3.

The writ petition is, thus, partly allowed.

Order Date :- 19.4.2019

praveen.

(Siddhartha Varma,J.)