Durga Devi v. District And Sessions Judge — 1976 DIGILAW 481 (ALL)

JUDGMENT K. C. Agarwal, J. 1. THESE two connected writ petitions have been filed against the judgment of the learned District Judge, Dehradun, dated November 28, 1974. Writ Petition No. 2035 of 1975 has been preferred by S. P. Gupta, the landlord (briefly stated as the petitioner), whereas Writ Petition No. 7784 of 1974 has been filed by Smt. Durga Devi, the tenant (hereinafter referred to as the respondent). As these petitions can be conveniently decided by a common judgment, I propose to take them together. 2. THE dispute in this case is with regard to a building known as "Indra Nikunj", which was formerly known as 'Beehive Cottage', situate in the city of Mussoorie. This building was in the tenancy of one Dr. Gopal Singh, husband of Smt. Durga Devi. Dr. Gopal Singh died in 1969. It was, therefore, allotted to Smt. Durga Devi. An application under Section 16 of U. P. Act No. XIII of 1972 (briefly stated as the Act), was filed by the petitioner on January 8, 1973, for release of the aforesaid premises in his name on the ground that the respondent was not living in the Beehive Cottage and that she had substantially removed her effects therefrom. It was also mentioned in this application that one Sita Ram, a typist in the City Board, Mussoorie, was living and occupying the said premises. In this application, a prayer for deputing an official to make a spot inspection was also made. It appears that in pursuance of the aforesaid application, the Rent Control and Eviction Officer deputed the Naib Tehsildar for enquiring about the fact of vacancy, as alleged in the application filed by the petitioner. The Naib Tehsildar, thereafter, reported that in view of the statements of various witnesses examined by him and his personal inspection he found that possession of the building had been given by the respondent to Sita Ram, who was not the legal tenant. He also mentioned in the report that the respondent had substantially removed her households and was living out of Mussoorie. On this report, the Prescribed Authority declared the house to be vacant on January 23, 1973, under Section 12 of the Act. This was followed by an order of allotment in favour of the petitioner. He also mentioned in the report that the respondent had substantially removed her households and was living out of Mussoorie. On this report, the Prescribed Authority declared the house to be vacant on January 23, 1973, under Section 12 of the Act. This was followed by an order of allotment in favour of the petitioner. Having come to know of this allotment order, the respondent filed an application for its cancellation under Section 16(5) of the Act on the ground that the said order of allotment had been obtained by the petitioner by concealment of correct and true facts. She stated that she had gone temporarily to visit her sons and daughters due to winter and that she had neither removed her effects from the premises nor had handed over its possession to Sita Ram. She asserted that Sita Ram was permitted to live in one room as a care-taker in her absence from Mussoorie. 3. THE application filed by the respondent was contested by the petitioner. The parties led evidence before the Rent Control and Eviction Officer in support of their respective versions. The Rent Control and Eviction Officer having found that the respondent had gone temporarily from Mussoorie, held that the requirements of section 12 of the Act were not made out and, therefore, house was not open for allotment. On this finding, the Rent Control and Eviction Officer allowed the application filed by the respondent under Section 16(5) of the Act and recalled the allotment order dated January 27, 1973, passed in favour of the petitioner. Aggrieved by this order, the petitioner preferred an appeal before the District Judge. In the appeal, the petitioner urged the following three points : 1. Whether the respondent had substantially removed her effects from the disputed premises ? 2. Whether the respondent as well as the members of her family had taken up residence, not being temporary residence, elsewhere ? 3. Whether the respondent had * allowed the premises to be occupied by any person who is not a member of his family ? 4. THE learned District Judge decided point No. 1 in favour of the respondent, but, finding that Sita Ram had been allowed to occupy a room by the respondent, he held that in so far as that one room was concerned, the case was clearly covered by Section 12(1) (b) of the Act. 4. THE learned District Judge decided point No. 1 in favour of the respondent, but, finding that Sita Ram had been allowed to occupy a room by the respondent, he held that in so far as that one room was concerned, the case was clearly covered by Section 12(1) (b) of the Act. The District Judge further allotted this one room to the petitioner. On these findings, the appeal of the petitioner was partly allowed and one room, described as 'Pantry', was released in favour of the petitioner. As to the rest, the appeal was dismissed. Aggrieved by this judgment of the learned District Judge, these two petitions have been filed, one by the petitioner and the other by the respondent. I propose to take up writ no. 2035 of 1975 first. As stated above, the application was filed by the petitioner' on all the three grounds mentioned in Section 12(1) of the Act. After perusal of the evidence filed by the parties, the learned District Judge held that neither the respondent had removed her effects from the house nor had she taken up residence elsewhere. Challenging the findings on these two points, Sri L. P. Naithani, learned counsel for the petitioner, as well as the petitioner himself, who appeared himself in person before me, urged that these findings could not be upheld as they were against the evidence on record. Sri Naithani also urged that the evidence filed by the petitioner proved that the respondent had taken up her residence elsewhere and, therefore, the finding given to the contrary by the learned District Judge, was wrong. In this connection, the learned counsel invited my attention to certain annexures filed along with the counter-affidavit filed by the respondent in writ petition No. 2035 of 1975 and urged on their basis that those papers established that in most of the period of the year the respondent used to live outside, and that the premises in question is being used as a resort for the summer vacation. 5. CLAUSE (c) of sub-section (1) of Section 12 of the Act contemplates for a deemed vacancy in the case of a residential building, where a tenant as well as member of his family have taken up residence, not being temporary residence, elsewhere. 5. CLAUSE (c) of sub-section (1) of Section 12 of the Act contemplates for a deemed vacancy in the case of a residential building, where a tenant as well as member of his family have taken up residence, not being temporary residence, elsewhere. This provision, therefore, will apply only to a case where residence has been taken up by a tenant and also by his or her family members on a permanent basis. A temporary or casual visit by a tenant or his or her family members will not attract the aforesaid clause. In the instant case, after examination of the entire evidence, the learned District Judge found that the evidence indicated that the respondent used to go to meet her sons during winter vacations and she used to return thereafter. The finding further given by the learned District Judge is that she had not removed her effects from the house. Accordingly, merely because the respondent had stayed away for some time with her sons during winter, that would not establish that she had taken up residence elsewhere, as required by CLAUSE (c) of sub-section (1) of Section 12 of the Act. It has come in evidence that her sons are employed in services outside and it is natural for a mother, whose husband is dead, to pay visits to her sons off and on whenever she feels the necessity of so doing. Her casual visits to her sons and daughters were rightly held by the learned District Judge not amounting to taking up residence elsewhere. The petitioner did not bring any evidence on record which could show that she had taken up another residence. In interpreting clause (c) of sub-section (1) of Sec. 12, one cannot forget the background of the Indian society where a widow mother out of her affection and love for her children visits them off and on when so required. Such visits made by her cannot amount to leaving off her permanent residence. 6. ANOTHER important fact which may be noted in this connection is that in order to attract clause (c) of subsection (1) of Section 12, it is necessary that not only the tenant but his or her family members must have also taken up residence elsewhere. Such visits made by her cannot amount to leaving off her permanent residence. 6. ANOTHER important fact which may be noted in this connection is that in order to attract clause (c) of subsection (1) of Section 12, it is necessary that not only the tenant but his or her family members must have also taken up residence elsewhere. In the instant case, the evidence had been filed by the respondent to establish that her one son and a daughter were staying outside, and that they were living in hostels. Hence, as these children of the respondent were not in service, it could reasonably be held that the requirement of clause (c) of Section 12(1) was not made out on this ground as well. So far as the submission of the learned counsel for the petitioner on the question that the learned District Judge did not consider the evidence of the parties, is concerned, it may be mentioned that the learned District Judge has definitely made a reference to the oral and documentary evidence filed before the Rent Control and Eviction Officer. It is true that he has not specifically dealt with each paper in detail, but the observations made by him indicate that he had applied his mind to the evidence and thereafter found that it was not helpful in deciding the controversy. The inference from the evidence drawn by him was that the respondent used to make casual visits to her sons. Hence, it cannot be said that the learned District Judge did not consider the evidence filed by the petitioner. There is no prescribed manner in which an appellate court or authority is required to discuss the evidence. It can be done in various ways. The observation made, in the instant case, by the learned District Judge is clear enough to indicate that he had considered the evidence of the parties. For weighing evidence and drawing inference from it, there can be no canon. Each case represents its own peculiarities. To my mind, therefore, the findings recorded by the learned District Judge on the aforesaid question are one of fact and it is not possible to interfere with the same in the present proceedings under Article 226 of the Constitution. For weighing evidence and drawing inference from it, there can be no canon. Each case represents its own peculiarities. To my mind, therefore, the findings recorded by the learned District Judge on the aforesaid question are one of fact and it is not possible to interfere with the same in the present proceedings under Article 226 of the Constitution. A reference may be made to a case of the Supreme Court in Babhutamal v. Laxmi Bai, AIR 1975 SC 1296, where the Supreme Court has held that the power of the High Court is limited to see that the subordinate tribunal or court acts within its authority. According to the view taken in this case, the High Court has no power to interfere with the findings of fact even if erroneous. In the instant case, although I am not satisfied that the findings are erroneous but, even assuming that I am wrong on the aforesaid conclusion, I hold that since this Court has no power to go into the correctness of the findings of fact, the point is liable to be decided against the petitioner. 7. THE finding on the question that the respondent had removed her effects substantially is also a finding of fact. This finding is again based on the appraisal and consideration of evidence given by the parties. The finding is also not amenable to correction on the ground indicated above. 8. THE only other question that now remains to be considered is about the finding as to whether the respondent had allowed the house to be occupied by Sita Ram, who was, admittedly, not a member of her family. As stated above, the learned District Judge found that one of the rooms had been given by the respondent to Sita Ram. Aggrieved by the said finding, the respondent has filed Writ Petition No. 7784 of 1974, whereas since the case of the petitioner was that whole of the house was given to Sita Ram, he has also challenged the same in Writ Petition No. 2035 of 1975. Now I proceed to decide this point in both the petitions. Section 12(1) (c) reads as under : "A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if- (a) .................. Now I proceed to decide this point in both the petitions. Section 12(1) (c) reads as under : "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 (c) .................." The word 'occupied' like many English words has various meanings depending on how it is used. The-word 'occupation' includes possession as its primary element, but it also includes something more. In one sense a caretaker can also be considered as an occupier and thus can be said to have occupied the house. But, in another sense his occupation is that of some other person. In considering the meaning of this word, therefore, the context in which the same has been used becomes very relevant. Before the enactment of the new Act, the ground of subletting could be the basis for ejectment of the tenant-in-chief and a sub-tenant, but it was felt that it was difficult to prove subletting. Hence, it appears to me that in order to check such illegal sub- lettings, the Legislature has now provided for deemed vacancy in sub-section (1) of section 12. In the cases mentioned in the three clauses of sub-section (1) of Section 12, a tenant-in-chief is liable to eviction irrespective of the fact that a landlord or the authorities may not bring evidence to establish that he has sublet the house or a portion thereof. It was with this object that Clause (b) of sub-section (1) of Section 12 was also enacted. But, the Legislature cannot be imputed the intention of covering under this clause a case of a transient or temporary occupation of a premises by a friend, a relation, a wayfarer etc. In each of these cases, his occupation would be that of some other person, that is, the tenant. A care-taker can also be placed in such a category. He is meant for the purposes of looking after the house and does not have any independent right of his own of occupying the premises. The relation of a tenant with that of a care-taker is not that of an outgoing and incoming tenant. A care-taker can also be placed in such a category. He is meant for the purposes of looking after the house and does not have any independent right of his own of occupying the premises. The relation of a tenant with that of a care-taker is not that of an outgoing and incoming tenant. Hence, it appears to me that possession of a care-taker of a room or any portion of a building or premises cannot amount to his occupation of the building, as required by clause (b) of sub-section (1) of Section 12 of the Act. I am supported in my view by a decision of this Court in Dr. S. N. Ghosh v. Rent Control and Eviction Officer, 1975 AWC 568. In this case, brother K. N. Singh interpreting Clause (b) held that the Legislature never intended that if a tenant goes out on leave for a few months or for a year and in that case if a building is occupied by a servant or any of his family friend with a view to keep watch on his goods, the same would not be sufficient to fulfil the requirement of Clause (b) of sub-section (1) of Section 12 of the Act. In my opinion, if a tenant-in-chief leaves a building with the purpose of not coming back and hands over possession of the same to another, such a case may be covered by Clause (b) of sub-section (1) of Section 12 of the Act. But, if it is found that the tenant has gone out temporarily, and that he or she was to return back and continue to reside in the building, there would be no question of any vacancy. If acceptance of interpretation of possession of a care-taker for a short time or that of a friend for a temporary or casual residence is considered as sufficient for attracting Clause (b) of sub-section (1) of Section 12, the same is likely to defeat the very purpose for which this subsection was enacted. 9. EXAMINING the case from the point of view, mentioned above, it appears to me that the learned District Judge was wrong in holding that the temporary occupation by Sita Ram for two months from September to February of the next year fulfilled the requirement of Clause (b) of Section 12 (1) of the Act. 9. EXAMINING the case from the point of view, mentioned above, it appears to me that the learned District Judge was wrong in holding that the temporary occupation by Sita Ram for two months from September to February of the next year fulfilled the requirement of Clause (b) of Section 12 (1) of the Act. On the finding that Sita Ram was a care-taker on behalf of the respondent, the learned District Judge was not right in holding that such temporary possession of Sita Ram attracted clause (b) of the Act. Merely because Sita Ram was not a member of the family of the respondent and he had been exclusively permitted to occupy one room for the period from September 1972 to February 1973, that Was, in my opinion, not sufficient to hold I that Sita Ram occupied the same in ' his own right attracting Clause (b) of Section 12 (1). Hence, the judgment of the learned District Judge to that extent is erroneous. In view of this finding, the submission of the learned counsel for the petitioner that clause (b) of sub-section (1) of Section 12 was attracted in respect of the entire house must fail. 10. BEFORE parting with the judgment, I also wish to point out that the learned District Judge was not right in allotting one room, which was vacant according to his finding, to the petitioner. If he found the said room to be vacant, the proper course for him was to have sent back the case to the Rent Control and Eviction Officer for inviting applications for allotment. He could not allot the premises in the appeal without considering the claims of rival claimants and following the procedure prescribed under the Act. Even if the petitioner became the owner of the house that did not entitle him to release the portion without finding that the requirement of the petitioner was bonafide, as required by sub-Section (2) of Section 16 of the Act. In the result, Writ Petition No. 2035 of 1975 fails and is dismissed, whereas Writ Petition No. 7784 of 1974 succeeds and is allowed. The judgment of the learned District Judge is quashed to the extent indicated above. In the circumstances of the case, I direct the parties to bear their own costs of both the petitions. The stay order is discharged. Ordered accordingly.