Deepanshu Sharma vs State Of Uttarakhand And Others
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Uttarakhand High Court

Deepanshu Sharma vs State Of Uttarakhand And Others on 28 October, 2025

Author: Manoj Kumar Tiwari

Bench: Manoj Kumar Tiwari

                                                             2025:UHC:9498
HIGH COURT OF UTTARAKHAND AT NAINITAL
     HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI

             Writ Petition No. 2421 of 2024 (MS)
Deepanshu Sharma                                       --Petitioner
                                Versus
State of Uttarakhand and others                     -Respondents
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Advocates:    Mr. Sandeep Tiwari, Advocate for the petitioner
              Mr. N.S. Pundir, Deputy Advocate General for the State
              Mr. B.D. Pande, Advocate for respondent No. 7
              Mr. Piyush Garg, Advocate for private respondents
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                             JUDGMENT

1. Petitioner's mother was tenant in a shop, situate at Kosi Road, Ramnagar, District Nainital since last several decades. A suit for eviction was filed against petitioner's mother by landlord (Mithilesh Kumar) before learned Judge, Small Causes Court, Ramnagar, District Nainital, which was registered as SCC Case No. 07 of 2014.

2. Learned Judge, Small Causes Court/1st Additional District Judge, Ramnagar dismissed the suit vide judgment dated 09.07.2019. The landlord (Mithilesh Kumar), thereafter, moved an application before Sub Divisional Magistrate, Ramnagar, claiming vacant possession of the same shop for which, he had filed eviction suit. In that application, the landlord contended that tenant has reportedly passed away some years ago and the shop is lying closed ever since then, therefore, he may be permitted to break open the lock of the shop.

3. Perusal of the impugned order reveals that Sub Divisional Magistrate called a report from Executive Officer, Nagar Palika Parishad, Ramnagar, who

2025:UHC:9498 mentioned in his report that the tenant (late Smt. Shobha Sharma) died about two years ago. Based on said report, Sub Divisional Magistrate directed the Incharge, Inspector Police Station, Kotwali Ramnagar and Executive Officer, Nagar Palika Parishad to ensure that the lock of the shop is removed and vacant possession of the shop in question is handed over to the landlord (Mithilesh Kumar).

4. Petitioner is son of the tenant (late Smt. Shobha Sharma). He has challenged the impugned order on the ground that Sub-Divisional Magistrate has no jurisdiction to decide landlord-tenant dispute and he has usurped the jurisdiction of Civil Court without any authority of law.

5. It is contended that legal heirs/legal representatives of the tenant were not heard at any stage, nor any notice was issued to them and the impugned eviction order was passed behind their back. It is further contended that the manner in which Sub- Divisional Magistrate entertained a representation made by landlord and by administrative order directed for dispossession of the tenant from shop in question, is against all settled canons of fair play.

6. It is further contended that the only remedy available to the landlord was to file eviction suit before a competent Court of law and the tenant cannot be dispossessed from the tenanted premises in a summary manner without any notice or opportunity.

2025:UHC:9498

7. Learned counsel for the petitioner has drawn attention of this Court to the remarks made by Executive Officer, Nagar Palika Parishad, Ramnagar, beneath the handwritten report given by official of Nagar Palika Parishad, which is at page 52 in the writ petition. In his remark, the Executive Officer has categorically mentioned that a landlord-tenant dispute should be resolved through a competent Court of law and it would not be proper for the Nagar Palika to break open the lock of the shop.

8. Learned counsel for the petitioner submits that Sub-Divisional Magistrate overlooked the remarks made by Executive Officer in his report and ordered for breaking open the lock of the shop, which is arbitrary and illegal. He further submits that a number of articles were kept inside the shop and landlord was permitted to remove those articles by giving undertaking that as and when the articles are demanded by legal heirs of the tenant, then he will hand over the articles to them. He thus submits that even though SDM exercises certain powers available to a Magistrate under Code of Criminal Procedure; however, he is not empowered to decide cases of civil nature.

9. He submits that landlord-tenant dispute cannot be decided by Sub Divisional Magistrate, while exercising power as Executive Magistrate and such dispute can only be decided by a Civil Court or by a Small Causes Court, established under Provincial Small Cause Courts Act, 1887.

2025:UHC:9498

10. Per contra, Mr. Piyush Garg, learned counsel appearing for private respondents submits that landlord (Mithilesh Kumar) passed away and he is survived by three sons, who are impleaded as respondent Nos. 3, 4 and 5 in the writ petition. He submits that he has been instructed to appear on behalf of private respondent Nos. 3, 4, 5 and 6.

11. Mr. Garg, Advocate submits that Sub Divisional Magistrate exercised the powers available to him under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1972). He submits that since the shop was lying closed for more than two years and the tenant had removed his effects therefrom, therefore, a deemed vacancy arose in the shop in question within the meaning of Section 12 of the aforesaid Act, therefore, Sub Divisional Magistrate was justified in passing the order.

12. Section 12 of Act No. 13 of 1972 deals with deem vacancy of building, which is extracted below:

"12. Deemed vacancy of building in certain cases.-(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if-

(a) he has substantially removed his effects therefrom; or

(b) he has allowed it to be occupied by any person who is not a member of his family; or

(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.

(2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.

(3) In the case of a 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, he shall be deemed

2025:UHC:9498 to have ceased to occupy the building under his tenancy:

Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.

[Explanation. For the purposes of this sub-section-

(a) a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee;

(b) 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.]

[(3-A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town area to which he has been so transferred, whichever is later.

(3-B) If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, municipality, notified area or town area in which the said building is situate, and such engagement ceases for any reason whatsoever, and he is landlord of any other building in any other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy the first mentioned building with effect from the date on which he obtains vacant possession of the last mentioned building whether as a result of proceedings under Section 21 or otherwise.]

(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1) or sub-section (2), or '[sub-section (3), sub-section (3-A) or sub-section (3-B)], shall, for the purposes of this Chapter, be deemed to be vacant.

(5) A tenant or, as the case may be, a member of his family, referred to in sub-section(3) shall, have a right, as landlord of any residential building referred to in the said sub-section which may have been let out by him before the commencement of the Uttar Pradesh Urban Buildings

2025:UHC:9498 (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, to apply under clause (a) of sub-section (1) of Section 21 for the eviction of his tenant from such building, notwithstanding that such building is one to which the remaining provisions of this Act do not apply."

13. Rule 8(1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 lays down the procedure for ascertainment of vacancy. It provides that District Magistrate while passing order of allotment or release of a building alleged to be vacant under Section 12, have the same inspected.

14. Rule 8(2) provides that inspection shall, as far as possible, be made in the presence of the landlord, the tenant or any other occupant.

15. Detailed procedure is provided in Rule 8(2) and 8(3) of the aforesaid Rules. Rule 9 provides for notice of vacancy and Rule 10 lays down the procedure for allotment of a building on an application made by a prospective tenant.

16. A building found to be vacant can also be released in favour of the landlord on his request as per the provisions contained in Section 16 of the Act and Rule 13 of the aforesaid rules.

17. Admittedly, the procedure as prescribed in Section 12 and 16 of Act No. 13 of 1972 and the Rules framed thereunder was not followed, while passing the impugned order. The order for breaking open lock of the shop in question was passed by Sub-Divisional Magistrate behind the back of the tenant/her legal representatives. Eviction of the tenant was directed by passing administrative order on a representation made

2025:UHC:9498 by the landlord. Impugned order is not referable to any provision of Act No. 13 of 1972.

18. This Court finds substance in the submission made by learned counsel for the petitioner that Sub Division Magistrate had no authority, whatsoever, to pass order for eviction against the tenant. Landlord-tenant dispute cannot be decided in summary manner that too by an administrative order. The impugned order is thus legally unsustainable, thus liable to be quashed.

19. In such view of the matter, the writ petition is allowed. The impugned order dated 15.06.2025 is hereby quashed and set aside.

20. Pending application(s), if any, stand disposed of.

_______________________________ MANOJ KUMAR TIWARI, J.

Dt: 28.10.2025 Mahinder

MAHINDER SINGH

DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f031a92d1a18b08923c, postalCode=263001, st=UTTARAKHAND, serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC4626D305B1BC9EA4BABA43D2B8F, cn=MAHINDER SINGH Date: 2025.10.30 19:44:07 +05'30'