Kiran Tewari v. Kailasbendra Prasad — 1984 DIGILAW 291 (ALL)

JUDGMENT K. N. Misra, J. 1. Notice was ordered to be issued to opposite parties No. 1 and 2 by this Court vide order dated 9th March, 1984 to show cause why the petition should not be admitted. NOTICE on behalf of opposite party no. 3 was accepted by the Chief Standing Counsel. In the notice which was issued to opposite parties No. 1 and 2 it was ordered to be indicated that the writ petition itself is likely to be disposed of on 5-4-1984. Office report indicates that notice on opposite parties no. 1 and 2 is deemed sufficient. I, therefore, proceed to hear and dispose of this writ petition on merits. 2. I have heard learned counsel for the petitioner Sri G. K. Mehrotra at some length and have perused the impugned order passed by District Magistrate, Faizabad. I have also gone through the averments contained in the writ petition. The Rent Control and Eviction Officer vide order dated 16-3-1983 has held that the premises in question (house No. 1234 (old) and New No. 1.13-201, Civil Lines, Faizabad) had fallen vacant on account of death of sitting tenant Gur Prasad and his wife and, thus, considered the application for release of the petitioner on merits. He ordered release of their premises in question in favour of petitioner Srimati Kiran Tewari, wife of J. N. Tewari. It may be mentioned here that Sri J. N. Tewari was in employment in Central Civil Secretariat and he retired as Chief Executive Officer and Jonit Secretary, Department of Statistics, Ministry of Planning, Government of India. He is said to have retired on 31-7-1983 and is occupying the premises which were in his possession as a Government servant at Delhi. Learned counsel for the petitioner urged that since a long time has passed, Sri J. N. Tewari is required under the rules to immediately vacate the premises. He has referred to Annexure No. 10 which -is order dated 22-2-1984 passed by Assistant Director of Estates, Ministry of Works and Housing Directorate of Estate, giving permission to Sri J. N. Tewari to retain premises upto 31st March, 1984 and not beyond that date. 3. In respect of the premises in question, one Afser Ahmad, a local resident of district Faizabad had also applied for allotment of those premises alleging that the premises had fallen vacant. 3. In respect of the premises in question, one Afser Ahmad, a local resident of district Faizabad had also applied for allotment of those premises alleging that the premises had fallen vacant. The Rent Control and Eviction Officer, vide aforesaid order dated 16-3-1983 released the premises in favour of the landlady-applicant. 4. The application for release was contested by opposite party no. 1 Kailashendra Prasad urging that he is son of late Gur Prasad. It was also mentioned by him that Srimati Uma Devi, opposite -party no. 2 is his sister and heir and successor of late Gur Prasad. Besides opposite party nos. 1 and 2, it was further asserted that two more brothers of opposite party no. 1 were also heirs and successors of the deceased-tenant who were residing with the deceased-tenant at the time of her death and with these allegations the application for release was contested by opposite party no. 1 and he prayed that the premises cannot be declared to be vacant. The Rent Control and Eviction Officer, Faizabad, however, allowed the application for release of the petitioner by holding that the premises were deemed to be vacant and released the premises in question in favour of the applicant rejecting the contention of the heirs of deceased tenant. It would be relevant to mention that on 9-1-1983 the Rent Control and Eviction Officer had declared the premises to be vacant and the objection of the said heirs of the deceased tenant were considered and disposed of on 2nd March, 1983. The application for release was considered thereafter, and the Rent Control and Eviction Officer had passed order of release after hearing both the parties. Aggrieved by said order, opposite parties no. 1 and 2 preferred revision before the District Judge, Faizabad, which was heard and disposed of by him vide order dated 18-1-1984 and setting aside the order passed by the Rent Control and Eviction Officer, the case was remanded back for deciding it afresh on merits according to law and in the light of observation made in the order. The petitioner, aggrieved by this order dated 18-1-1984 (Annexure No. 1) preferred this petition which has gome up for hearing before me today as mentioned above. The petitioner, aggrieved by this order dated 18-1-1984 (Annexure No. 1) preferred this petition which has gome up for hearing before me today as mentioned above. I have heard learned counsel Sri G. K. Mehrotra at some length who urged that the learned District Judge has not adverted himself to the vital question as to whether the deceased-tenant left any heir as is contemplated by Section 3 (a) (1) which reads as under 5 " (a) "tenant" in relation to a building means a person by whom its rent is payable, and on the tenant's death (1) in case of residential buildings such only of his heirs as normally resides with him in the building at the time of his death. (2) in case of a non-residential building his heirs : (Emphasis supplied) 5. Referring to this provision learned counsel urged that since at the time of death of the deceased-tenant, none of the heirs were normally residing with her, and, as such, opposite parties No. 1 and 2 nor the other two brothers who has not contested the application for release, would be deemed to be tenants of the premises in question. He, thus, urged that since no heir as mentioned in sub-clause (1) of Clause (a) of Section 3 resided in the premises with the deceased tenant at the time of her death, the premises would be deemed to be not in occupation of a tenant, and, as such, the order declaring the premises to be vacant and releasing the premises in favour of the landlady was perfectly legal and justified and it called for no interference in the revision. 6. I have considered the arguments of the learned counsel for the petitioner and I find much substance in his argument. In case none of the heirs of deceased tenant normally resided with him in the building at the time of his death, the premises would be deemed to be not in occupation of the tenant as contemplated by sub-clause (1) of clause (a) of section 3. This provision was inserted by the Civil Laws Amendment Act, 1972, with retrospective effect. In case none of the heirs of deceased tenant normally resided with him in the building at the time of his death, the premises would be deemed to be not in occupation of the tenant as contemplated by sub-clause (1) of clause (a) of section 3. This provision was inserted by the Civil Laws Amendment Act, 1972, with retrospective effect. Thus, besides the provision contained under section 12 regarding deemed vacancy of the building in certain cases, the premises in occupation of a tenant would be deemed to have ceased to be occupied by a tenant on his death, if at the time of death of deceased-tenant, none of his heirs normally resided with him, as is impliedly contemplated by sub-clause (1) of clause (a) of section 3 of the Act. In the event it is established that the deceased sitting tenant died heirless, as none of the heirs normally resided with the tenant in the premises at the time of his death, then the premises, per force the said provision, would be deemed to have ceased to be occupied by the tenant and it would be available for release to landlord or for allotment to any other person according to the provisions of the Act. The learned District Judge has not taken into consideration this aspect of the matter while setting aside the order passed by the Rent Control and Eviction Officer and directing him to decide whether the case would be covered by any one of the clauses (a) to (c) of sub-section (1) of section 12 for declaring the deemed vacancy of the premises in question. This latter provision would only apply when there is a living tenant of the premises and by his conduct the provision contained in clause (a) to (c) of sub-section (1) of section 12 would be attracted. There is no question of applicability of this provision in the present case. Learned counsel for the petitioner had strenously contended that opposite party no. 1 who was Munsif at the time of death of his mother and father was living outside the district at Orai where he was posted as Munsif-Magistrate having an official residence there. In these circumstances, his contention was that the opposite party no. 1, who was not normally residing with the deceased tenant at the time of her death, cannot be taken to be tenant of the premises. In these circumstances, his contention was that the opposite party no. 1, who was not normally residing with the deceased tenant at the time of her death, cannot be taken to be tenant of the premises. His further contention was that Srimati Uma Devi, opposite party no. 2, sister of opposite party no. 1 is married to Paras Nath who is Consolidation Officer and was posted at Barabanki. He had further referred to paragraph No. 23 of the writ petition wherein he had mentioned the aforesaid facts. This fact, according to the petitioner was not disputed by the husband of Srimati Uma Devi that his wife resided at house no. 1175, Baksaria Tola, Golaghat, Ayodhya where she holds a ration card No. 696296 for six units, for herself, her husband, three sons and one daughter. That being so, his contention was that neither opposite party no. 1 nor opposite party no. 2 could be taken to have normally resided with the deceased tenant in the premises in question at the time of her death. The premises were, therefore, vacant being not in occupation of a sitting tenant. 7. The aforesaid argument of the learned counsel for the petitioner would carry much substance if it is proved that opposite parties no. 1 and 2 did not normally reside with the deceased tenant at the time of her death in the premises in question. If the answer to said question would be in affirmative, the claim of the opposite parties to the effect that they are sitting tenant and the premises are not vacant would deserve to be rejected. And any person including the opposite parties no. 1 and 2, if found to be in occupation of the premises at present would be taken to be in an unauthorised occupation. 8. Learned counsel pointed out that the Inspector's report indicates that when he visited the premises, the persons who were found to be in occupation of the same, did not disclose their identity. He had also mentioned that none of the persons of the locality came forward to be a witness of the inspection made by him, hence in these circumstances the observation of the learned District Judge rejecting the Inspector's report on the ground that persons of locality are not the witnesses in the inspection report, is erroneous. He had also mentioned that none of the persons of the locality came forward to be a witness of the inspection made by him, hence in these circumstances the observation of the learned District Judge rejecting the Inspector's report on the ground that persons of locality are not the witnesses in the inspection report, is erroneous. I have considered this argument of the learned counsel for the petitioner as well and I find much substance in it. If no one of the locality comes forward and consents to be a witness I of the inspection made by the Rent Control Inspector, and this fact is found mentioned in the report itself, I find that the report cannot be rejected on this ground to be illegal. The Inspector who makes spot inspection is not clothed with any such authority to press any local resident to come forward and witness the inspection made by him or sign the inspection report. In this view of the matter, if a witness of the locality did not agree to witness the inspection, the inspection report of the Inspector cannot be rejected on that ground if said fact mentioned in the report is not found to be unreliable. 9. In this view of the matter, I find that the learned District Judge erroneously rejected the inspection report on the said grounds. However, by this observation, it should not be understood that the Inspector's report, even if it has been challenged on facts, has got to be accepted. It has to be considered on merits for what it is worth. Since the learned District Judge has wrongly ignored the inspection report on aforesaid erroneous ground, I find that the order passed by him stands vitiated on that ground as well. 10. Since I am remanding this case to the lower revisional court for consideration afresh on merits I do not express any opinion on the merits of the facts involved in the case. The revisional court will consider and decide the revision on merits and in accordance with law and in the light of observation made above. 10. Since I am remanding this case to the lower revisional court for consideration afresh on merits I do not express any opinion on the merits of the facts involved in the case. The revisional court will consider and decide the revision on merits and in accordance with law and in the light of observation made above. In the end the learned counsel for the petitioner has urged that since Sri J. N. Tewari, husband of the petitioner landlady is pressed for vacating the official residence at Delhi, and, as such, considering the urgency of the matter, the lower revisional court should be directed to expeditiously decide the revision on merits. Considering this aspect of the matter, I direct that the lower revisional court should decide the revision expeditiously within three months from the date this order is brought to the notice of the lower revisional court by the petitioner. 11. It also appears expedient in the interest of justice that this revision be now decided by the next senior judge posted at Faizabad other than the District Judge, Faizabad. 12. In the result, the writ petition succeeds and is hereby allowed. The order dated 18-1-1984 passed by District Judge, Faizabad is hereby quashed and the case is remanded back to the revisional court for being decided on merits in accordance with law and in the light of observations made above. I, however, direct the parties to bear their own costs. Petition allowed.