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2024 DIGILAW 1812 (ALL)

Bhanu Kumar v. Dilip Kumar

2024-08-02

SARAL SRIVASTAVA

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JUDGMENT : Hon'ble Saral Srivastava, J.-Heard Sri Subhanshu holding brief of Sri Nikhil Kumar, learned counsel for the petitioner, and Sri Prakhar Tandon, learned counsel for the respondent. 2. Sri Prakhar Tandon, learned counsel for the respondent states that the respondent does not propose to file the counter-affidavit and the matter may be heard. Accordingly, this Court proceeds with the hearing of the case. 3. The petitioner by means of the present writ petition has assailed the order dated 9.6.2016 passed by the Rent Control and Eviction Officer/Additional District Magistrate (III), Kanpur Nagar in case No. 7 of 2015 (Dilip Kumar v. Bhanu) whereby he has declared vacancy in respect to house No. 107/218, Nehru Nagar, District Kanpur Nagar, consisting of one room, kitchen, common lavatory, common hall, bathroom on the first floor and one room/godown on the ground floor of the said house (hereinafter referred to as 'suit property') in the possession of the petitioner, order dated 26.8.2016 by which the Rent Control and Eviction Officer/Additional District Magistrate (III), Kanpur Nagar has released the suit property, and the order dated 19.10.2022 passed by the Additional District Judge, Court No. 15, Kanpur Nagar whereby he has dismissed the rent revision No. 41 of 2016 preferred by the petitioner against the aforesaid two orders of the Rent Control and Eviction Officer/Additional District Magistrate (III), Kanpur Nagar (hereinafter referred to as 'RCEO') passed on the application of the respondent Dilip Kumar for declaring vacancy in respect of the suit property. 4. An inspection of the suit property was conducted by the Rent Inspector and he found that one Bhanu Kumar petitioner is residing in the suit property. He recorded the statement of Bhanu Kumar who stated that the suit property was owned by his father Jeevat Ram who died on 27.11.2008. Petitioner further stated that he had become the owner of the suit property under the last will dated 5.11.2008 executed by his late father in his favour as earlier two wills dated 6.8.2004 and 27.10.2005 executed by his late father were canceled. The petitioner further stated that he is in possession of the suit property and the suit property is not vacant. 5. The Rent Inspector, thereafter, recorded the statement of the respondent who stated that he became the owner of the suit property under the registered will executed by his father late Jeevat Ram in his favour in October 2005. The petitioner further stated that he is in possession of the suit property and the suit property is not vacant. 5. The Rent Inspector, thereafter, recorded the statement of the respondent who stated that he became the owner of the suit property under the registered will executed by his father late Jeevat Ram in his favour in October 2005. He further stated that the name of the respondent is recorded in the Nagar Nigam. He further stated that the petitioner is his elder brother and he inducted the petitioner as a licensee in the suit property. After recording the statement of the petitioner as well as the respondent, the case was registered as case No. 7 of 2015 and the notices were issued to the petitioner as well as the respondent. 6. The petitioner in response to the notice of the RCEO reiterated the stand which was taken by him in his statement before the Rent Inspector. 7. The respondent also filed an objection denying that his father had executed any will dated 5.11.2008 as alleged by the petitioner. He further stated that his father had executed a registered will dated 27.10.2005 in his favour and after the death of his father on 27.11.2008, he became the absolute owner of the suit property on the basis of the registered will dated 27.10.2005 and his name has been recorded in the Nagar Nigam after deleting the name of his father by resolution No. 66 dated 18.6.2010 of the Nagar Nigam. 8. The RCEO recorded a finding that the father of the petitioner executed the registered will in October 2005 in favour of the respondent and based upon the said will, the name of the respondent is recorded in Nagar Nigam. Accordingly, the RCEO held the respondent to be the owner of the suit property. 9. He further recorded a finding that the respondent inducted the petitioner as a licensee for a certain period. He further held that in view of Section 2A(1) and Section 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972), the landlord can induct any person as a licensee for a short period without seeking any allotment. He further held that the mere pendency of the case between the parties before the Civil Court would not affect the present proceeding. He further held that the mere pendency of the case between the parties before the Civil Court would not affect the present proceeding. Accordingly, it allowed the respondent's application under Section 12 of UP Act No. 13 of 1972 declaring the suit property as vacant and also directed for publication of a vacancy in English and Hindi Newspapers having wide circulation. 10. The RCEO, thereafter, by order dated 26.8.2016 released the suit property in favour of the respondent. The petitioner, thereafter, preferred revision bearing Revision No. 41 of 2016 against the aforesaid two orders, which was also dismissed by the revisional Court by order dated 19.10.2022. 11. Challenging the aforesaid orders, learned counsel for the petitioner has contended that the RCEO as well as the revisional Court has committed a manifest error of law in allowing the application of the respondent under Section 12 of the UP Act No. 13 of 1972 inasmuch as in the instant case, it is admitted that the petitioner and the respondent are real brothers. He further submits that the petitioner has acquired the ownership of the suit property by the last will dated 5.11.2008 of his late father since two earlier wills dated 6.8.2004 and 27.10.2005 executed by his father were cancelled. He submits that the possession of the petitioner on the suit property cannot be said to be unauthorized possession as the petitioner became the owner of the suit property by the will dated 5.11.2008 executed by his father in his favour. He further submits without admitting that if he was a licensee of the respondent even then the application under Section 12 of the UP Act No. 13 of 1972 would not lie and the remedy of the respondent is to file a regular suit for eviction of the petitioner inasmuch as if the status of the petitioner is that of a licensee then the question that would crop up for consideration is whether the license of the petitioner has been revoked as per law or not, and the RCEO has no jurisdiction to decide such as an issue. Accordingly, it is submitted that the impugned orders are illegal and without jurisdiction and are liable to be set aside. 12. Accordingly, it is submitted that the impugned orders are illegal and without jurisdiction and are liable to be set aside. 12. Per contra, learned counsel for the respondent has contended that the respondent became the owner of the suit property by virtue of the registered will dated 27.10.2005 executed by his father in his favour and based upon the said will, the name of the respondent is recorded in the Nagar Nigam by deleting the name of his father by resolution No. 66, dated 18.6.2010. He submits that given Section 2A(1) of the UP Act No. 13 of 1972, the respondent on a sympathetic consideration that the petitioner is his real brother inducted him as a licensee for a short period which the respondent under the law could do in view of Section 2A(1) of the UP Act No. 13 of 1972, therefore, the application under Section 12 of the UP Act No. 13 of 1972 is maintainable. Consequently, it is submitted that the RCEO has rightly declared the suit property as vacant and has released the same and the revisional Court has also not committed any error in dismissing the revision of the petitioner. 13. I have heard learned counsel for the parties and perused the record. 14. The facts that emerge from the records are that the petitioner and the respondents are real brothers. The suit property was owned by their father late Jeevat Ram. The petitioner is claiming ownership over the suit property on the basis of the will dated 5.11.2008 which, according to him, was the last will executed by his late father before his death on 27.11.2008. The petitioner claims his possession over the suit property as an owner on the basis of said will. 15. The respondent too is claiming ownership over the suit property on the basis of the registered will dated 27.10.2005. He asserts that his name is recorded in the Nagar Nigam on the basis of the will dated 27.10.2005. 16. The report of the Rent Inspector indicates that he had conducted the inspection and recorded the statement of the petitioner wherein he has categorically stated that the suit property was owned by his late father who executed the will dated 5.11.2008 in his favour. 17. 16. The report of the Rent Inspector indicates that he had conducted the inspection and recorded the statement of the petitioner wherein he has categorically stated that the suit property was owned by his late father who executed the will dated 5.11.2008 in his favour. 17. The RCEO while passing the order dated 26.8.2016 did not consider the case of the petitioner at all and directed for the release of the suit property on the ground that the respondent became owner of the suit property under the registered will dated 27.10.2005 and his name is recorded in the Nagar Nigam. The RCEO further considered Section 2A (1) of the UP Act No. 13 of 1972 read with Section 16 of the UP Act No. 13 of 1972 and concluded that the respondent could grant the license for a short period because of the aforesaid two sections without allotment and the pendency of the suit between the parties would not affect the present proceeding. 18. At this stage, it would be apt to reproduce Section 12 of the UP Act No. 13 of 1972 : ''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 of his family, or (c) in the case of a residential building, he as well as member of his family have taken up residence, not being temporary residence, elsewhere. (2) In the case of a 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. (2) In the case of a 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. (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, notified 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 under his tenancy upon the expiration of a period of one year from the said date. Explanation-For the purposes 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; (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] (3-A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town area to which he has been so transferred, whichever is later. (3-B) If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, municipality, notified area or town area in which the said building is situate, and such engagement ceases for any reason whatsoever, and he is landlord of any other building in any other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy the first mentioned building with effect from the date on which he obtains vacant possession of the last mentioned building whether as a result of proceedings under Section 21 or otherwise]. (4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2), or sub-section (3), or sub-section (3-A) or sub-section (3B), shall, for the purposes of this Chapter, be deemed to be vacant. (5) A tenant or, as the case may be, a member of his family, referred to in sub-section (3) shall have a right, as landlord of any residential building referred to in the said sub-section which may have been let out by him before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 to apply under Clause (a) of sub-section (1) of Section 21 for the eviction of his tenant from such building, notwithstanding that such building is one to which the remaining provisions of this Act do not apply].'' 19. To attract Section 12 of the UP Act No. 13 of 1972, the landlord or tenant of a building shall cease to occupy the building or a part thereof. The landlord or tenant shall cease to occupy the building on the existence of any of the conditions enumerated in Section 12(1) (a) to (c) of the U.P. Act No. 13 of 1972, those conditions are (a) landlord or tenant has substantially removed his effects therefrom, or (b) landlord or tenant has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, the landlord or tenant and members of his family have taken up residence, not being temporary residence, elsewhere. 20. The RCEO can declare the suit property vacant under Section 12 only when the ingredients of Section 12 of the UP Act No. 13 of 1972 are present in a case. 20. The RCEO can declare the suit property vacant under Section 12 only when the ingredients of Section 12 of the UP Act No. 13 of 1972 are present in a case. 21. In the present case, it is admitted between the parties that the petitioner and the respondents are real brothers and both are claiming ownership on the basis of the will executed by their late father in their favour. The issue in the instant case is as to which of the two wills i.e. will dated 5.11.2008 in favour of the petitioner is valid or the will dated 27.10.2005 in favour of the respondent is valid. 22. In the present case, the petitioner and the respondent are claiming ownership on the basis of will executed by their father in their favour, therefore, neither they are the landlord nor the tenant nor any relationship of landlord and tenant exists between the respondent and the petitioner. The petitioner cannot be termed as the tenant in the absence of any case set up by the respondent that the petitioner was paying rent of the suit property to him as a tenant in view of the definition of tenant in Section 3(a) of the UP Act No. 13 of 1972 which states that the tenant in relation to a building means a person by whom its rent is payable and on his death his heirs. 23. This Court put a specific query to learned counsel for the respondent to demonstrate how the case of the respondent falls within the ambit of Section 12 of the UP Act No. 13 of 1972. To the said query, he submits that the petitioner has been inducted by the respondent for a short term as a licensee as the respondent could induct him without allotment under Section 2A (1) of the UP Act No. 13 of 1972. He submits that after the expiry of the period of three months contemplated under Section 2A (1) of the UP Act No. 13 of 1972, the tenant becomes an unauthorized occupant of the suit property in absence of any allotment order in respect to suit property by the Competent Authority. 24. He submits that after the expiry of the period of three months contemplated under Section 2A (1) of the UP Act No. 13 of 1972, the tenant becomes an unauthorized occupant of the suit property in absence of any allotment order in respect to suit property by the Competent Authority. 24. The aforesaid submission of the learned counsel for the respondent in the opinion of the Court is devoid of merit for the reason that the respondent has not stated in the statement before the Rent Inspector that the induction of the petitioner was for three months and not more than that. It is not in dispute that the petitioner is the real brother of the respondent. Even if the status of the petitioner is that of a licensee of the respondent, unless the license is revoked in accordance with law, his possession over the suit property would not be of unauthorized occupant. The petitioner is not a tenant in view of Section 3(1) (a) of UP Act No. 13 of 1972. 25. In such view of the fact, Section 12 of the UP Act No. 13 of 1972 cannot be pressed into service for declaring the suit property vacant in terms of Section 12 of the UP Act No. 13 of 1972. Therefore, the reason assigned by the R.C.E.O. in declaring the vacancy with respect to the suit property is misconceived and not sustainable in law. 26. For the reasons given above, this Court finds that the impugned order dated 9.6.2016 and the order dated 26.8.2016 passed by R.C.E.O. declaring vacancy in respect to suit property are without jurisdiction and are accordingly set aside. Consequently, the order dated 19.10.2022 passed by the Additional District Judge, Court No. 15, Kanpur Nagar is also not sustainable in law and is accordingly set aside. 27. In view of the foregoing discussion, the writ petition is allowed without any order as to cost.