Research › Search › Judgment

Uttarakhand High Court · body

2004 DIGILAW 15 (UTT)

Narendra Singh Manwal v. District Judge, Dehradun

2004-03-23

RAJESH TANDON

body2004
JUDGMENT By the present writ petition, the petitioner has prayed for the Issue of a writ, order or direction in the nature of certiorari quashing the order dated 28.9.1982 passed by the respondent no. 1. 2. Briefly stated the facts giving rise to the present writ petition are that the petitioner has applied for allotment of premises No. 9/1 Mahendra Quarters Chakrata Road, Dehradun which was in occupation of respondent no. 3. On the application of the petitioner the premises was inspected on 8.6.1981 and a report was submitted that the respondent no. 3 is at present posted as Assistant Engineer in P. W .D. at Pithoragarh. It was further mentioned that the wife, children and mother of respondent no. 3 is living in the premises. 3. On 19.10.1981 the Rent Control and Eviction Officer after hearing both the parties declared the vacancy and vide order dated 9.11.1981 allotted the premises in favour of the petitioner. Respondent no. 3 preferred a revision before the District Judge. The revision was allowed and order dated 9.11.1981 passed by R.C. & E.O. was set aside. The learned District Judge has recorded a finding that in the year 1958 accommodation was allotted in favour of respondent no. 3 and since then he is paying rent to the landlady. The landlady has also filed a certificate to this effect. It has also come on the record that accommodation was allotted in the year 1958 and the respondent no. 3 remained posted out side Dehradun. 4. The revisional Court has also relied upon the Photostat copy of ration card and voter list in order to come to the conclusion that the premises in dispute is in occupation of the family members of respondent no. 3. Section 3 (g) defines the family as under: "family" in relation to a landlord or tenant of a building, means, his or her- (i) spouse, (ii) male lineal descendants, (iii) such parents grand parents and any unmarried or widowed or divorced or judicially separated daughter of daughter of a male lineal descendant as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right or residence in that building; 5. A perusal of the aforesaid definition shows that parents are included in the definition of the family. The widowed mother of respondent no. A perusal of the aforesaid definition shows that parents are included in the definition of the family. The widowed mother of respondent no. 3 was also living in the disputed premises and the premises, therefore, cannot be said to be vacant. 6. In order to prove the vacancy ingredient of section 12(1) (a) to (c) of Act No. 13 of 1972 has to be satisfied. It reads as under: 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 or 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. 7. The order passed by the revisional court shows that family members like parents of the respondent No. 3 has been in occupation of the premises since very inception of the tenancy. The respondent no. 3 was having a transferable post from the very inception of the tenancy i.e. from 1958 and even after his transfer his family members including wife and children are residing in the premises in dispute. 8. The concept of joint Hindu family cannot be thrown out where from the very inception of the tenancy family members are occupying the premises i.e. even before the enforcement of Act No. 13 of 1972. In view of the aforesaid facts there being no vacancy and the revisional Court has rightly interfered under Section 18 of the Act. 9. The question of vacancy being jurisdictional fact, the revisional court has jurisdiction to interfere with the order of vacancy under section 18 of U.P. Act No. 13 of 1972 if it finds that no case is made out for declaration of vacancy. The revisional Court while holding that the disputed premises was not vacant has committed no illegality. 10. In view of the aforesaid facts and circumstance the writ petition lacks merit and is hereby dismissed. There will be no order as to costs.