Brijendra Prakash v. IV Additional District Judge — 1985 DIGILAW 159 (ALL)

JUDGMENT : A.P. Misra, J. The Petitioner has filed the present petition for a writ of certiorari quashing the order dated 2nd September, 1980 by virtue of which the Additional District Judge Etawah allowed the revision filed by Respondent No. 4 in the proceedings under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 2. The dispute relates to premises No. 198 situate in Mohalla Katra Sahib Khan, district Etawah. The said premises was let out to Sri Anand Bux Singh who died on 7th August, 1976. Thereafter the Petitioner No. 1 made an application for allotment of the accommodation in question stating that after the death of the then tenant a vacancy has occurred. Petitioner No. 2 is the landlord of the accommodation. The Rent Control and Eviction Officer called for the report of the Inspector, who after inquiry submitted a report dated 15th May, 1978 showing the original tenant having died and the person in occupation is an unauthorised occupant of the premises in question. The Rent Control and Eviction Officer after giving opportunity to the parties passed an order dated 9th November 1978 holding that after the death of the then tenant, a vacancy has occurred and he ordered for the notification of the vacancy u/s 12 of the aforesaid Act. Respondent No. 4 being aggrieved as against the said order filed a revision u/s 18 of the said Act. The revising authority allowed the revision and set aside the order passed by the Rent Control and Eviction Officer. The revisional court held now it is amply clear that under the Rent Control Act the proceedings of eviction can be possible against an unauthorised person who is an unauthorised person within the meaning of Section 12(1) to (4) and Section 13 and no other. So if a person who docs come within the category of Section 12(1) he cannot be said as an unauthorised person to be evicted under this Act. In this case a declaration of deemed vacancy has been made against the revisionist and then it follows that this revisionist is an unauthorised person and he will be evicted, so the right of the revisionist has thus been effected by impugned order. The vacancy u/s 12 could not have been declared by the Rent Control and Eviction Officer." The Petitioner aggrieved as against this order has filed the present writ petition. 3. The vacancy u/s 12 could not have been declared by the Rent Control and Eviction Officer." The Petitioner aggrieved as against this order has filed the present writ petition. 3. The Petitioner has raised the preliminary ground that the revision filed by Respondent No. 4 was not maintainable and thus on this ground alone the revising order is liable to be quashed. For this purpose the Petitioner relied on the case of Major Baljeet Singh v. Rent Control and Eviction Officer, Allahabad 1985 ARC 107. The observation made in that case is as under: In view of the proviso to Section 16(1) of the Act, it is clear that the Petitioners have an alternative remedy to demonstrate that the premises in question could not be declared as vacant u/s 12 Sub-clause (4) of U.P. Act No. 13 of 1972. By mere declaration of vacancy neither the tenant nor the landlord is handicapped in any manner. Real difficulty arises when the premises in question after declaration of vacancy is either allotted or released. If at that stage the tenant or the landlord has get a right to demonstrate that the declaration of vacancy u/s 12 Sub-clause (4) of the Act could not be made they have clear alternative remedy. In another words the case of the Petitioner is that a notification of the vacancy is a step in aid of an order of allotment or release and it is only when such order of allotment or release is passed, the landlord or the tenant could have any grievance and before that mere an order of release of an accommodation could not give him a right to file a revision u/s 18 of the Act. 4. Rule 8 of the rules framed under the said Act provides a procedure for finding a vacancy. According to the said rule the District Magistrate shall, before passing the order of allotment or release which is alleged to be vacant u/s 12 or otherwise vacant or to be likely to fall vacant, get it inspected. Thereafter on the expiry of three days from the date of the report obtained or after the disposal of the objection, if any received, the District Magistrate is to consider the case and pass either an allotment or release order of the accommodation in question. Thereafter on the expiry of three days from the date of the report obtained or after the disposal of the objection, if any received, the District Magistrate is to consider the case and pass either an allotment or release order of the accommodation in question. Prior to the introduction of the provisions to Section 16(1) which is added by the U.P. Amendment Act No. 20 of 1976 similar question arose in the case of Tirlok Singh and Co. Vs. District Magistrate, Lucknow and Others, AIR 1976 SC 1988 . The view taken in that case is as under: It is unnecessary for the District Magistrate acting as a Rent Controller to hear the landlord or the tenants as the case may be before notifying the vacancy because under the scheme of the U.P. Rent Act, an order notifying the vacancy does no injury and causes no prejudice to the interest of any party. A notification of the vacancy is a step-in-aid of an order of allotment or release and it is only when such an order of allotment or release is passed that the landlord or the tenant as the case may be, can have a grievance. Therefore, it was held that the writ petition against an order of the District Magistrate directing the vacancy to be notified is pre-matured in the sense that it does not affect the interest of the tenant. Subsequent to the amendment by addition to proviso to Section 16(1), the matter was considered again in the case Hart Swarup v. RC & EO, Allahabad 1982 ARC 809. The view taken in that case is as under: It was submitted that in Trilok Singh's case (Supra) the Supreme Court considered the provisions of the Rent Control Act as they stood prior to the amendment by the Amending Act No. 28 of 1976. That decision is hence no longer applicable. We are not impressed by this submission. The Amending Act of 1976 added a proviso to Section 16(1) of the Act is stated: Provided that in the case of a vacancy referred to in Sub-section (4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under Clause (a). Under this proviso, the District Magistrate has to afford an opportunity while considering the question of making an order of allotment or release. It is true that in paragraph 8 of Trilok Singh's case (supra) the Supreme Court observed: The Act does not provide for a hearing at the stage when the District Magistrate passes an order of allotment or release. To that extent the law is changed. Now the Act provides for such a hearing but that, in our opinion, makes no difference because this hearing is at the stage of passing the order of allotment and not of the stage of notification of vacancy contemplated by Section 12. The status or the effect of the notification of vacancy u/s 12 remains as it was, namely, it does not injury and causes no prejudice to the interest of any party. In our opinion, Trilok Singh's case is equally applicable after the 1976 amendment of the Rent Control Act and a writ petition directed against the notification or declaration of vacancy simpliciter is premature. Thus it would be seen that even, after amendment it is very clear that the landlord or the tenant as the case may be, could only raise his grievance at the stage when either the allotment order is passed or release is granted u/s 16 of the Act. Thus the Petitioner urged that the revision filed by the Respondent No. 5 was not maintainable in view of the aforesaid provisions and the same is liable to be quashed on this ground alone. There is substance in the argument raised by the counsel for the Petitioner. These decisions make it clear that no revision lies as against an order declaring vacancy of the accommodation in question. However, counsel for Respondent No. 4 relied on a decision reported in Mahmdra Vikram Singh v. IVth Addl. District Judge, Bareilly 1984 ARC 361. The observation made in that case is as under: The learned Counsel then urged that no revision lay against the order passed by the Rent Control and Eviction Officer recalling his earlier order and dismissing the allotment application filed by the opposite party. Reliance is placed on Santosh Kumar Misra v. Sri Ramanuj Darshcn Mohavidalaya 1977 ARC 77. It is not necessary to go into this controversy as even assuming that revision was not maintainable, the petition cannot succeed. Reliance is placed on Santosh Kumar Misra v. Sri Ramanuj Darshcn Mohavidalaya 1977 ARC 77. It is not necessary to go into this controversy as even assuming that revision was not maintainable, the petition cannot succeed. The learned Counsel was asked time and again to satisfy that the second order passed by the Rent Control and Eviction Officer by which he reviewed his earlier order was sustainable in law and if the second order cannot be sustained then it is well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of it results in bringing on record another illegal order. Therefore, the learned Counsel was given opportunity but as pointed out earlier despite his lengthy and strenuous argument he failed to satisfy that the order of the Rent Control and Eviction Officer which was passed by him earlier suffers from any error which could result in miscarriage of justice apparent on the face of record or could justify its recall or review. In view of this decision the counsel for Respondent No. 4 urged that where by clashing the order passed by the revising authority if it brings into existence an illegal order then the power under Article 226 of the Constitution should not be exercised even if there was no power of revision under this Act. The principle enunciated in this case has stood since long. It is well settled that the power under Article 226 of the Constitution should not be exercised only for quashing illegal orders. Before exercise of such powers it is the duty of the court to see that if by doing so it brings into existence an order which is patently erroneous, manifestly unjust or against the provisions of the Statute, then this power should not be exercised. In Sripat Narain Rai Vs. Board of Revenue, U.P. and Others, AIR 1960 All 93 it was held: It is open to the High Court to refuse to interfere in its jurisdiction under Article 226 where by setting aside an order it might be perpetuating an injustice which has been done to the Respondents by an incorrect ex parte order passed against them. Board of Revenue, U.P. and Others, AIR 1960 All 93 it was held: It is open to the High Court to refuse to interfere in its jurisdiction under Article 226 where by setting aside an order it might be perpetuating an injustice which has been done to the Respondents by an incorrect ex parte order passed against them. In other words, as in the present case, if a party chose a wrong forum, under mistaken legal advice, his grievance could not be thrown away, if he could satisfy that the order which he challenged before revisional authority suffers from patent illegality. Thus his argument is that even if no revision lay, this Court before quashing it should examine whether it will result into bringing into existence of patently illegal order of the Rent Control and Eviction Officer. I find substance in this submission. 5. For the aforesaid reasons it is necessary to examine the order dated 9th November, 1978 passed by the Rent Control and Eviction Officer. The case set up by the Respondent No. 4 before the said authority was that he wrote a letter to the Petitioner No. 2 as far back as on 7th February 1977 and he has mentioned therein that he has been living in the said accommodation along with his uncle Sri Ananad Bux Singh since the time of his study and he has been depositing the rent even during the time of his uncle, and therefore, after his death the receipt should be issued in his name. It is on this letter a resolution was said to have been passed by Petitioner No. 2 that since Ananad Bux Singh has died, therefore, Respondent No. 4 should be asked to vacate the said accommodation in question. After examining the various evidence on the record the Rent Control and Eviction Officer came to the conclusion that both Respondents Nos. 3 and 4 are in illegal occupation of the accommdotion in question and after the death of Ananad Bux Singh, since Respondent no 4 is said to be the nephew of the deceased, he would not be covered within the meaning of family member and thus the accommodation in question would be deemed vacant. 3 and 4 are in illegal occupation of the accommdotion in question and after the death of Ananad Bux Singh, since Respondent no 4 is said to be the nephew of the deceased, he would not be covered within the meaning of family member and thus the accommodation in question would be deemed vacant. Counsel for Respondent No. 4 urged that the Rent Control and Eviction Officer misdirected himself by considering the word 'family member' for deciding whether after the death of Anand Bux Singh, he would be a tenant or not. 6. It cannot be doubted that the Rent Control and Eviction Officer had in his mind Section 12 of the Act; The word 'family member' has been defined in Section 3(g) of the said Act. It is on this ground, the said authority held that since the nephew would not be covered within the definition of family member under the said Act, and therefore, after the death of Ananad Bux Singh there would be deemed vacancy. However, the said authority completely misdirected himself for the purpose of finding the vacancy of the accommodation in question. Section 12 comes into operation not when a tenant dies but in a case of a subsisting tenant who admits any person in his tenancy who is not a member of the family then the deemed vacancy clause is attracted. Section 3(a) really defines a 'tenant'. For ready reference it is quoted hereinafter: 3(a) "Tenant" in relation to a building, means a person by whom its rent is payable, and on the tenants' death- (1) In the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non-residential building, his heirs; (Explanation--An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant) In is significant to note that the word family member is absent in the definition of the word 'tenant' and this definition clearly deals with the contingency when a tenant dies. It is significant that it uses the word 'heir'. Family member is defined u/s 3(g) of the said Act and is referred in Section 12 of the Act. It is significant that it uses the word 'heir'. Family member is defined u/s 3(g) of the said Act and is referred in Section 12 of the Act. This Act thus uses both the words heir and family member 'in relation to a tenant'; heir is used in relation to a tenant who has to succeed as tenant after the death of an existing tenant, while 'family' is used in Section 12 which deals with a situation of an existing tenant. The Rent Control and Eviction Officer instead of examining and finding out as to who would be the heirs under this sub-section, misapplied Section 12 for deciding whether there was deemed vacancy or not. It was open to the Rent Control and Eviction Officer on the facts and circumstances of this case firstly to have come to the conclusion whether Respondent No. 4 was an heir or not and would be a tenant or not within the meaning of the said sub section 3(a) before deciding that a vacancy exists or not. He instead relied on the word 'family' as used u/s 12 of the Act to hold that Respondent No. 4 is not the heir which cannot be sustained in the syes of law. Similar distinction was drawn in the case of Om Prakash v. The Prescribed Aurhority 1984 (2) ARC 634. It was held in that case that the definition of family will not be relevant for the purpose of determining the question as to who would become tenant on the death of original tenant. In this case it was held that in view of the word 'heir' u/s 3(a) it would be seen whether the Petitioner would inherit the property by succession under the Hindu Succession Act or not. Thus the word 'heir' was given the same meaning as would be applicable in the general law of Succession Act. In view of this decision also it is clear that after the death of tenant it is the duty of the Rent Control and Eviction Officer first to decide as to who is the 'heir' u/s 3(a) before deciding the question whether there is any vacancy or not. However, in no case in such contingency Section 12 should be made applicable as was done in the present case to hold it to be deemed vacant. 7. However, in no case in such contingency Section 12 should be made applicable as was done in the present case to hold it to be deemed vacant. 7. The question as to what meaning should be given to the word 'heir' in this Act is not free from doubt. The word 'heir' might denote different meaning in the context of a particular statute. Some time a statute itself may define the meaning of word 'heir' or it may be given either restricted or wider meaning in view of the other provision of the Act. But in the present case neither this question has been raised nor the said question arises directly and in view of the decision of this Court of giving same meaning as in Hindu Succession Act it is not necessary to go into it in the present case. 8. This makes it clear that the contention of the counsel for the Respondent is justified that the order passed by the Rent Control and Eviction Officer was without any authority of law inasmuch as it misdirected itself and misinterpreted provisions of the Act on the facts and circumstances of this case. 9. Counsel for the Petitioners, however, urged that even if this position be there but since the Rent Control and Eviction Officer has; not examined the definition of the word 'tenant' as used in Section 3(a) as to whether Respondent No. 4 was normally residing with the deceased in the said building at the time of his death, a direction should be given to it to decide this fact first. According to him before a person could be said to be a tenant not only he has to be the heir but the aforesaid qualifying conditions are also necessary. It is true, that before a person could be said to be covered by word 'tenant' under this Act, after death of the erstwhile tenant, the authority has to examine the fact whether the person claiming to be the tenant is an heir of the deceased tenant or not and also whether he was normally residing with him or not in that building, at the time of his death. As I have said earlier, this aspect was never examined by the Rent Control and Eviction Officer and he at no stage tested the condition as laid down u/s 3(a) of the Act. As I have said earlier, this aspect was never examined by the Rent Control and Eviction Officer and he at no stage tested the condition as laid down u/s 3(a) of the Act. It is, therefore, necessary that the Rent Control and Eviction Officer should examine afresh the aforesaid facts for deciding whether Respondent No. 4 could be a tenant of the accommodation in question. 10. In view of the aforesaid, I am of opinion that it is expedient that the Rent Control and Eviction Officer should examine the facts afresh in the light of the observations made above, first whether Respondent No. 4 would be a tenant or not within the meaning of word 'tenant' as defined u/s 3(a) of the Act in order to determine whether any vacancy has occurred or not. For the reasons stated above I quash both the orders dated 2nd September, 1980 passed by Respondent No. 1 (Annexure 2 to the writ petition) and also the order dated 9th November, 1978 passed by Respondent No. 2 (Annexure 1 to the writ petition) and the case is remanded back before the Rent Control and Eviction Officer for deciding afresh in the light of the observations made above. 11. In the result, the writ petition is allowed and the orders of Respondent No. 1 dated 2nd September, 1980 and that of Respondent No. 2 dated 9th November, 1978 are quashed. The case is remanded back before the Rent Control and Eviction Officer for deciding afresh in the light of the observations made above. Costs on parties.