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PETITIONER: MOHD. AZEEM

       Vs.

RESPONDENT: DlSTRlCT JUDGE, AND  ORS.

DATE OF JUDGMENT23/04/1985

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DESAI, D.A.

CITATION:  1985 AIR 1118            1985 SCR  (3) 844  1985 SCC  (2) 550        1985 SCALE  (1)1097

ACT:      Uttar Pradesh Urban Buildings (Regulation Letting, Rent and Eviction)  Act 1972,  section 12 (3) read with section 3 (a) and 3 (g)-Interpretation of the phrase "if the tenant or any member of his family" occurring therein-Deemed cessation of the  tenancy and Deemed vacancy of the tenanted premises, when occurs, explained-Right to occupy the tenanted premises by the heirs under section 12, clarified.

HEADNOTE:      Under  section  12  (3)  of  the  Uttar  Pradesh  Urban Buildings (Regulation  of Letting,  Rent and  Eviction  Act, 1972. ’ 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 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: ...". ’Tenant’ ac  cording to  the definition  in  clause  (a)  of section of  3 the  Act 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.’ Under  clause (g) of section 3 of the Act, ’Family’  in relation  to a  land lord  or tenant  of a building  means:   "his  or  her-(i)  sp  (ii)  male  lineal descendants; (iii)  such  parents,  grand  parents  and  any unmarried or  widowed or  divorced or  judicially  separated daughter or daughter of a malelineal descendant, as may have been normally  residing with  him or her, in and includes in relation to  a landlord,  any family having a legal right of residence in that building."      One Manzoor  Hussain a  tenant  of  the  suit  premises located at  Aligarh died in 1969, leaving behind a widow and three sons-Mohd.  Azeem (the  appellant), Mohd.  Naim, Mohd. Nadeem-and a  daughter Nauzhat, who continued to live in the tenanted premises  on payment  of rent by the appellant. The Rent Control  Inspector submitted  a report on June 22, 1983 that Naim, appellants’ brother, had built a house in 1978 or 1979 and,  therefore, the  tenancy must  be deemed  to  have terminated in view of the provisions contained in section 12

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of the Act. The prescribed Authority ordered the eviction in spite of  the contest  that under  section 12  the right  to occupy by  other heirs  continued. The  revision before  the District Judge  failed and  the writ  petition filed  in the High Court  of Allahabad was dismissed in limine, in view of the Full  Bench decision   of that High Court in the case of Smt. Rama Devi Shakya and Anr. v. The 907 Additional District  Judge, Lucknow  & Anr.,  1981 Allahabad Rent Cases  305. Hence  the appeal  by special  leave of the Court.      Allowing the petition, the Court, ^      HELD:  1.1  When  tho  Uttar  Pradesh  Urban  Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 defines "tenant"  and   "family"  reference   to  personal   law  is irrelevant and  the concept  of joint  tenancy  is  foreign, Therefore, when  one of  the members  of the  family built a house or  moved into  a  vacant  premises  (other  than  the tenanted premises  in occupation)  it cannot  be  said  that there was  a deemed  cessation of  the tenancy  and a deemed vacancy occurred of the tenanted premises.      1.2 It  is true  that the  legislative  purpose  behind section 12  appears to  be in keeping with the scheme of the Act-making available  as much  accommodation as possible for allotment to  needy persons.  That being  the  purpose,  the legislature  could  not  have  intended  to  render  persons rehabilitated in tenanted premises homeless.      1.3 As  the definition  of "tenant"  in clause  (a)  of section 3  indicates, on  a  tenants’  death  his  heirs  as normally  resided   with  him  would  also  be  tenants  qua residential buildings.  The definition  does not warrant the view that  all the  heirs will  become a  body of tenants to give rise  to the  concept  of  joint  tenancy.  which  heir satisfying the further qualification in section 3 (a) (1) of the Act  in his  not right  becomes a  tenant and coming the section 12  (3) of  the Act,  the words  "the tenant  or any member of  his family" will refer to the heir who has become a tenant  under the  statutory definition and members of his family. If  everyone’s interest was to be wiped out, section 3 had  to provide  differently and  instead of  ’he shall be deemed to  have ceased  to occupy  the  building  under  his tenancy’ as  occurring in  sub-section, (3)  would have been made to  all the  tenants in section 12. Family’ having been defiled, for  convenience in the facts of the present appeal qua Naim,  the definition  Would cover Naim’s wife, his male lineal descendants,  his mother and those who are covered by clause (iii)  in the  definition of  family. It would not by any stretching  embrace the  appellant or his brother Nadeem and the  sister. Therefore,  when Nadeem  built a  house and shifted to  it, the tenancy of the appellant and his brother along with their mother and sister did not terminate.      Smt. Rama  Devi  Shakya  and  Anr.  v.  the  Additional District Judge, Lucknow & Anr, 1981 Allahabad Rent Cases 305 overruled.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 360 of 1985.      From the  Judgment and  Order dated  23.5.1984  of  the Allahabad High Court in W.P. No. 4230 of 1984.      Shakeel Ahmed Syed for the Appellant.      I.S.. Sawhney for the Respondents.

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908      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. The  appellant, who  filed a  writ application before  the Allahabad  High Court  assailing the revisional order  of the  District Judge  of Aligarh,  is in appeal by special leave.      One Manzoor  Hussain was  admittedly the  tenant  of  a premises located  at Aligarh. He died in 1969 leaving behind a widow  and three  sons-Mohd. Azeem  (the appellant), Mohd. Naim, Mohd.  Nadeem and a daughter-Nuzhat. The widow and the sons and  the daughter  of Manzoor  continued to live in the tenanted premises  on payment of rent. It is the case of the appellant that  being the eldest member of the family he was paying that  rent. The  Rent Control  Inspector submitted  a report on June 22, 1983, that Naim, appellant’s brother, had built a  house four  or five  years before  in Amir Nisan, a part of the city of Aligarh and, therefore, the tenancy must be deemed  to have  terminated in  view  of  the  provisions containd  in   section  12   of  the  U.P.  Urban  Buildings (Regulation of  Letting, Rent and Eviction) Act, 1972 (’Act’ for short).  When notice  was issued  from the  Court of the Rent Control  and Eviction  Officer, Aligarh,  respondent  2 herein, the appellant entered contest by filing an affidavit to the affect that he has been living with 13 members of his family in the premises and rent was being collected from him following the  death of his father Manzoor Hussain. Merely y because Naim  had built  a house  in 1980,  the  tenancy  in favour of  the other  heirs of  Manzoor  Hussain  would  not terminate and  in such  circumstances the premises cannot be held to  become vacant  and available  for allotment to some other person.  The Prescribed  Authority did  not accept the contention of  the appellant  and held  that  the  house  in question must be deemed to have become vacant when Naim, who was a  member of  the family,  had built  a house. Appellant carried a  revision before the District Judge, respondent 1, which  was   dismissed.  The   revisional  authority  placed reliance on  a Full  Bench decision  of the  Allahabad  High Court in  the case  of Smt. Rama Devi Shakya and Anr. v. The Additional District  Judge, Lucknow & Anr(1). The Full Bench had held; (1) 1981 Allahabad Rent Cases 305. 909           "Where one  of the  co-tenants builds or otherwise      acquires  another   residential  building   within  the      meaning of sub-s. (3) of s. 12, the tenant, namely, the      entire set of co-tenants shall be deemed to have ceased      to occupy  the building under his sub-tenant. It cannot      be that the share belonging to the co-tenant in default      alone shall fall vacant."      The writ  application filed by the appellant before the High Court  was summarily  dismissed as the Court was of the view that  it was not a fit case for interference under Art. 226 of the Constitution.      At the  hearing the  decision of  the Full Bench of the Allahabad High  Court In  Rama Devi’s case was placed before us. An attempt was made on the appellant’s side to show that the interpretation put on s. 12 (3) of the Act was erroneous and  a   wrong  conclusion  had  been  reached  Counsel  for respondent 3  appointed  by  the  Supreme  Court  Legal  Aid Committee  supported   the  judgment  and  relied  upon  its conclusion  for   upholding  the  decision  of  the  learned District Judge.      Reference to  some of the provisions of the Act becomes necessary before  we proceed to make an analysis of the full Bench decision.  Chapter III  of the Act makes provision for

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regulation of  letting. Section  11 provides that "no person shall let  any building  except in pursuance of an allotment order issued  under s.  16". Section  12 makes provision for deemed vacancies  of buildings  in certain cases. Sub-s. (3) of s.  12 is  relevant for the disposal for the appeal. That sub-section runs thus:           "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 :.. "      As the words "tenant" and "family" occur in sub-s. (3), reference to  the definitions  of these  two terms  is  also relevant. 910 ’Tenant’ and family have been defined in clauses (a) and (g) respectively of  s. 3.  ’Tenant’ according to the definition in relation  to a  building means: a person by whom its rent is payable,  and on  the tenant’s 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." ’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 of  divorced or  judicially  separated  daughter  or 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 of residence in that building."      There is  no dispute  that along with Manzoor his wife, his three  sons and the daughter were living in the disputed premises. After  Manzoor’s death,  the widow, the three sons and the  daughter continued  to live in that house. There is reference to  payment of rent in the order of the Prescribed Authority and in the petition for Special Leave an assertion has been  made that it was the appellant who had been paying the rent  after the death of Manzoor. This plea has not been controverted. In  the setting of things, the appellant being the eldest  son, was  naturally expected  to pay  the  rent. There is material on record to show that Azeem and Naim were already married  and have been living along with their wives in the house along with other members of the family.      As the  definition of ’tenant’ indicates, on a tenant’s death his  heirs as  normally resided with him would also be tenant qua  residential buildings. Therefore, the widow, all the three  sons and  unmarried daughter  became tenants when the Act  came  into  force  notwithstanding  the  fact  that Manzoor had died in 1969.      We may now revert to s. 12(3) of the Act. Admittedly we are concerned with a residential building. It is the case of the Prescribed  Authority and  there is no dispute about it, that Naim  has built  a house  in the same city some time in 1980. Naim’s building a house and moving into it cannot wipe out the interest of the  widow, other  two sons,  including the appellant and the daughter,  if in  their own  right they  were tenants by satisfying the requirements of the definition. The words ’if the tenant or any 911 member of  his family’  obviously mean,  in the facts of the case,   Naim and the members of his family and do not relate to the widow, other two sons and the daughter of Manzoor. If

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everyone’s interest was to be wiped out, s. 3 had to provide differently and  instead of  ’he shall  be  deemed  to  have ceased  to   occupy  the  building  under  his  tenancy’  as occurring in  sub-s. (3)  reference would  have been made to all the tenants.      The ratio  of the Full Bench decision to which we shall presently advert  and which  has been  relied  upon  by  the Prescribed Authority  and the  learned  District  Judge,  is bound to  lead to  situations which  could never  have  been contemplated by  the legislature.  For instance,  if Naim or Nadeem found  inconvenient to live with the other members of family when  Manzoor died  and he  moved into  another house with a view to living separately and the fact of such a move on his part brought about cessation of tenancy and the house Manzoor lived  in was  deemed to  have  become  vacant,  the widow, the  other sons  and the  daughter of  Manzoor  would immediately find themselves in a very helpless condition. Or for instance,  if one  of the  sons got  an employment  in a Factory located  within the  same city  and for  convenience moved into  a Factory quarter for residence, the same result would ensue to the miserable plight of the other members. Or consider the  case of  a divorced  daughter  of  the  tenant living with  him, when  she builds  or acquires  a  separate premises with  funds provided  by her  ex-husband. No sooner she moves  into her house, the father’s tenancy come’s to an end. Or  take the  case of an expanding family. Several sons come of  age are married and many children are born to them. The accommodation becomes insufficient and one or two of the sons move into a separate house to ease the situation. If in such premises,  father’s tenancy terminates and the daughter which he  and members of his family reside is deemed to have become vacant,  the family  would be  visited with  hardship knowing no  bounds. Take  the unhappy and miserable lot of a couple whose  infirm son,  suffering from  a serious  malady highly contagious,  is shifted  to an  independent residence for exclusion. Would that too lead to termination of tenancy qua the main residential premises ?      In an  Act intended  to  stabilise  letting,  rent  and eviction by  regulation,  the  legislature  could  not  have evinced such intention. 912 It is true that the legislative purpose behind s. 12 appears to be in keeping with the scheme of the Act-making available as much  accommodation as  possible for  allotment to  needy persons. That  being the  purpose, the legislature could not have intended  to render  persons rehabilitated  in tenanted premises homeless. In our view, when the Act defines tenant’ and ’family’ reference to personal law is irrelevant and the concept of joint tenancy is foreign.      Now  a  reference  to  the  Full  Bench  decision.  The following questions  had been referred to the Full Bench for decision:      1.   (a)  Whether the  view expressed  in Budh  Sen  v.           Sheel Chandra  Agarwal. 1977  AWC 553,  and Ramesh           Chand Bose  v. Gopeshwar  Prasad Sharma,  1976 AWC           301, to  the effect that the heirs of a tenant are           tenants-in-common  and   not  joint   tenants,  is           consistent with  the view expressed by the Supreme           Court in Badri Narain v. Rameshwar Dayal, AIR 1951           SC 186 ?      (b)  Do such heirs of a tenant become tenants in common      inter se but remain joint tenants qua the landlord ?      (c)  What is  the effect  of one  such heirs  acquiring      another building  as mentioned in section 12(3) of U.P.      Act No, 13 of 1972 ?

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    2.   Whether the  view expressed in Shri Nath Tandon v.      Rent Control  & Eviction  Officer, 1979  All Rent Cases      541, to  the effect  that a  member of  the family  who      acquires another  building should both have been wholly      dependent on  him for section 12(3) to be attracted, is      consistent with Explanation (b) to s. 12(3) ?"      The Full  Bench proceeded  on the  basis that the heirs become joint tenants and answered the main problem by saying that if any member of the family of such joint tenants built or acquired  a house  in vacant  state the  tenancy would be deemed  to   have  ceased.  In  framing  the  questions  for reference and  in  answering  the  referred  questions,  the definition of  ’tenant was  lost sight  of. All the heirs as normally reside with the deceased tenant in the 913 building at  the time  of  his  death  become  tenants.  The definition   does not  warrant the  view that  all the heirs will become a body of tenants to give rise to the concept of joint   tenancy.    Each   heir   satisfying   the   further qualification in  s. 3(a)(1)  of the  Act in  his own  right becomes a  tenant and  when we  come to s. 12(3) of the Act, the words  "the tenant  or any  member of  his family"  will refer to  the  heir  who  has  become  a  tenant  under  the statutory definition  and members  of his  family.  ’Family’ having been  defined, for  convenience if  we refer  to  the facts of  the present  appeal qua Naim, the definition would cover Naim’s  wife, his  male lineal descendants, his mother and those  who are covered by clause (iii) in the definition of family.  It would  not  by  any  stretching  embrace  the appellant or  his brother  Nadeem and  the sister.  the Full Bench, in  our view,  fell into  an error  in working on the basis of  joint tenancy  running counter to the scheme under the Act.  The conclusion  reached by  the Full Bench, in our view is,  therefore,  wholly  unsustainable  and  we  cannot extend our  agreement to the conclusion that when one of the members of  the family  built   house or moved into a vacant premises (other  than the  tenanted premises in occupation), there was  a deemed  cessation of  the tenancy  and a deemed vacancy occurred of the tenanted premises.      Now coming  to the facts of the appeal, when Naim built a house  and shifted  into it,  the tenancy of the appellant and his  brother along  with their mother and sister did not terminate. They  continued to  be tenants in their own right being covered  by the definition of ’tenant’ and there is no deemed vacancy  as held  by the  Prescribed  Authority,  the learned District  Judge and  the High  Court. The  appeal is allowed and  the decisions  of the different forums referred to above  are set aside with costs through out. Respondent 2 who by  making his  order of deemed vacancy gave rise to the dispute which  ultimately required  the appeal to be brought up here,  in our opinion, must alone bear the costs. Hearing fee is assessed at Rs. 2,000. S.R.                                       Petition allowed. 914