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Allahabad High Court · body

2007 DIGILAW 2193 (ALL)

BABLOO v. MUNNA LAL VERMA

2007-08-22

RAKESH TIWARI

body2007
RAKESH TIWARI, J. Heard learned counsel for the parties. 2. The admitted facts of the case are that petitioners father was a tenant of house No. 12/224, Gwal Toli, Kanpur Nagar. After the death of his father Sri Ram Dulare, the tenancy devolved upon his son Tek Chandra alongwith other family member. 3. The case of the petitioner before the court below admittedly was that all the members of the family upon whom the tenancy had devolved consented that Sri Tek Chandra son of late Ram Dularey, the tenant, would inherit tenancy and they have no concern with it. 4. Subsequently, Sri Tek Chandra acquired House No. 10/291, Khalasi Line, Kanpur Nagar. It also appears that other members of the family, i. e. , Nanda, Chunni Lal Chunna and Babloo, after their marriage also acquired separate independent residential houses and only Smt. Anara Devi, the widow of the tenant late Ram Dularey, being alongwith her son minor Babloo continued to live in the house in dispute. 5. The landlord moved a release application for declaring vacancy which was contested by the petitioner on the ground that it had inherited the tenancy from the father. The Court in Case No. 101/2003 by the impugned order dated 4. 9. 2003 after considering the records and the admitted position in the case held as under : Hindi Thus, by the impugned order vacancy had been declared. 6. Learned counsel for the petitioner argued that as the petitioner had inherited the tenancy of his father when he was a minor, and is still living in the house in dispute after the death of his widowed mother Anara Devi, the order impugned declaring vacancy is illegal. 7. Counsel for the petitioner further urged that the court below has wrongly placed reliance upon the judgment rendered by the Apex Court in the case of Harish Tandon v. Addl. District Magistrate, Allahabad, U. P. and others, AIR 1995 SC 676 : 1995 (1) AWC 106 (SC), in deciding the case. According to him, the building under tenancy in that case was a commercial building and the Court was considering Section 12 (2) of the Rent Control Act, whereas in the present case, the building is a residential accommodation and Section 12 (3) is applicable. Sections 12 (2) and 12 (3) are as under : "12 (2 ). According to him, the building under tenancy in that case was a commercial building and the Court was considering Section 12 (2) of the Rent Control Act, whereas in the present case, the building is a residential accommodation and Section 12 (3) is applicable. Sections 12 (2) and 12 (3) are as under : "12 (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. 12 (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, modified area or town area in which the building under tenancy is situate, he shall be deemed 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 tinder his tenancy upon the expiration of a period of one year from the said date. [explanation. For the purpose 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 ; and (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. ]" 8. He further submits that definition of tenant and family was also not considered in the case of Harish Tandon (supra), as defined in Section 3 (a) read with Section 3 (g ). ]" 8. He further submits that definition of tenant and family was also not considered in the case of Harish Tandon (supra), as defined in Section 3 (a) read with Section 3 (g ). Section 3 (a) defines tenants and it provides that in this Act, unless the context otherwise requires- (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 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 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]. Section 3 (g) defines family which is 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, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendants, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building. " 9. The other contention of the learned counsel for the petitioner is that he has been living in the accommodation in dispute since birth and as such, any proceedings which may be initiated under the statute should have been initiated within the reasonable time. In this regard, he has relied upon the judgment in Smt. Bry Bala Jain v. Smt. Amarjeet Kaur and others, 1996 (2) ARC 474 : 1996 (3) AWC 1624. 10. In the case of Smt. Brij Bala (supra), the Court considered the provision of Section 12 of the Act and held that after the death of the original tenant, his heirs will be deemed to be holding the tenancy as a joint tenant and if any breach is committed by any of such joint tenants or heirs of the original tenants, they cannot take plea that unless the grounds for eviction mentioned in sub-section (2) of Section 12 are established individually against each one of them, they cannot be evicted from the premises in dispute. 11. 11. The expression "member of the family" used in Section 3 (g) of the Act, was also considered holding that there is no scope for interpreting that expression in a different manner than in connection with sub- section (2) of Section 12 of the Act. The Court observed that "once it is held" that after the death of the original tenant, his sons become joint tenants, the result of that is that it has to be held that in case of admission of the son-in-law of one of the joint tenants as a partner in business, there has been a deemed vacancy of the premises within the meaning of sub-sections (2) and (4) of Section 12 and it shall amount to sub-letting within the meaning of Section 25, Explanation (1), which is a ground for eviction under sub-section (2) (e) of Section 20 of the Act. 12. The Court also considered the scope of Section 12 (3) and held that where one of the sons of the tenant. not wholly dependent upon him acquires any other residential building, the original tenant would not be deemed to have ceased to occupy the building in question. 13. In the instant case, admittedly the original tenant had died and the members of the family were living with him. they had consented that tenancy should devolve upon Sri Tek Chandra, his son, hence their rights of inherited tenancy stood waived. The petitioner was a minor at that time, the decision of his mother in so far as he is concerned, was binding upon him. The law now is settled that mother is also a natural guardian of the minor, therefore, she could take decision on his behalf and the petitioner was bound by the decision so taken by his mother for his benefit alongwith the other major members of the family. The petitioner cannot resile from this possession after attaining majority on the ground that at the relevant time he was a minor hence no decision in his interest or for his benefit could be taken by his mother. 14. Admittedly, being a minor he could not have entered into contract of rent or could have been allotted the tenement under the Act creating a relationship of landlord and tenant which was never created between him and the respondents. 14. Admittedly, being a minor he could not have entered into contract of rent or could have been allotted the tenement under the Act creating a relationship of landlord and tenant which was never created between him and the respondents. But being minor at the relevant time was bound by the decision of his mother as stated above. 15. All other members of the family have acquired their own residential houses and the mother has also expired. The tenancy not devolve upon the petitioner for the reason his mother did not remain a tenant once she relinquished her rights in favour of Sri Tek Chand who later on acquired his own house. Therefore, any relation-ship of tenant and landlord would not devolve beyond him to any of the other members of the family including the petitioner in the facts and circumstances of this case. The court below has rightly come to the conclusion that the vacancy existed in the house in dispute. 16. As regards, the case of Smt. Brij Bala Jain v. Smt. Amarjeet Kaur and others, is concerned it is of no help to the petitioner for its considering the arguments that there is no limitation for declaration of vacancy under the Act. If for some reason the landlord would not file an application for vacancy, it would not extinguish his rights for getting an order of vacancy from the authority. It is relevant that when the need has occurred for the landlord for the accommodation in dispute which is relevant. 17. The whole scheme of the Act provides that in certain circumstances, the relationship of tenant and landlord can be legally brought to an end if the landlord is restrained by a blanket decision of the Court in garb that proceedings cannot be initiated beyond a certain period, i. e. , on the ground of reasonable limitation, the landlord has to exercise his option within certain period, or within reasonable time by the Courts. In that circumstances, the landlord would not be able to bring or institute any suit against the tenant being "beyond the reasonable period of time" this would be in direct conflict with object and reasons, as well as scheme in the provisions of the Act. 18. In that circumstances, the landlord would not be able to bring or institute any suit against the tenant being "beyond the reasonable period of time" this would be in direct conflict with object and reasons, as well as scheme in the provisions of the Act. 18. The court below relying upon paragraph 10 of the judgment rendered in the case of Mansaram v. S. P. Pathak and others, AIR 1983 SC 1239 , held that : "there is no limitation for taking such steps either by the landlord or by the Rent Control and Eviction Officer. Where the Act does not provide for specific limitation for taking such action, the Court has held in various decisions that it should be within a reasonable time. " 19. In view of the discussions stated above, I am of the considered view that where no limitation is provided under the Act, it will not extinguish the rights of the landlord to take action which is taken upon various factors and his need cannot be obstructed on the plea that it has not been raised within a reasonable time as provisions of Limitation Act would not be applicable. Hence, the need of the landlord for release for the accommodation is neither dependent upon the Limitation Act. 20. Admittedly brother get their own house and the petitioner can go to live with his brothers. There is no illegality or infirmity in the order of the court below. For the reasons stated above, the writ petition is dismissed. .