DEVENDRA KUMAR Vs. THIRD ADDL DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) The only point raised in this petition by the learned counsel for the petitioner is concluded by two decisions of this Court, both reported in the same volume of the Allahabad Law Reports Ratan lal v. Addi tional District Judge, Bulandshahar and others. (1979 A. L. R. 509), and Ram Sanehi v. 1st Addi tional District Judge, Farrukhabad and others. ( 1979 A. L. R, 506 ). Counsel, however, submits that the view expressed in these decisions needs reconsideration. Having heard learned counsel for the parties, I am not persuaded that the view taken in the above cases is wrong or needs consideration by a larger Bench. The question raised is, whether a legatee under a will in whose favour the previous tenant bequeaths his tenancy rights in a non-residential building is an heir of that tenant within the meaning of Section 3 (a) (2) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act ). The view expressed in the two decisions cited above is that having regard to the scheme and the contextual setting of the Act, the term "heirs" occurring in Section 3 (a) (2) must mean the natural heirs who succeed to the property of the tenant upon his death under the Personal Law, i. e. , the term does not include within it, the testamentary heirs. In the present case, the question arises in this way. Respondent No. 2 is the owner and landlord of the shop in dispute. One Kalika Prasad was its tenant. He died issueless on 20th October, 1975 leaving his widow Smt. Lilawati who too died on 19-7-1976. Upon her death, the landlord filed an application for the release of the shop under Section 16 (1) (b) of the Act on the ground that he bona fide required the same for his own use and that the pre vious tenant, namely, Smt. Lilawati having died without leaving any heir, the shop was liable to be treated as vacant and available for allotment. The peti tioner filed an objection and asserted that he was doing business in the shop in dispute right from the lifetime of Kalika Prasad and that in any case Smt. Lilawati had left a will in his favour bequeathing thereunder her tenancy rights also. Under the circumstances, it was asserted on behalf of the petitioner that the shop was not vacant and was not liable to be released. The Prescribed Authority held that, inasmuch as, the petitioner was doing business in the shop in dispute under a will from the previous tenant, namely, Smt. Lilawati, the shop could not be deemed to have fallen vacant and was, therefore, not available for allotment. The application of the landlord was consequently, rejected. Aggrieved by the order passed by the Prescribed Authority, the landlord filed a revision under Section 18 of the Act. The learned III Additional District Judge, Meerut hearing the revision disagreed with the Prescribed Authority and held that, inasmuch as, the petitioner was not a natural heir of the last tenant and further a testamentary heir could not legally be regarded as an heir having regard to the purpose and scheme of the Act, the shop must be deemed to have fallen vacant upon the death of the last tenant and could, therefore, be allotted. Learned counsel appearing for the petitioner challenged the order passed by the learned District Judge solely on the ground that the petitioner, as a testamentary heir of Smt. Lilawati, was entitl d to succeed to the tenancy rights and was, therefore, an heir of the last tenant within the meaning of Section 3 (a) (2) of the aforesaid Act and the view taken by the learned District Judge to the contrary is unsustainable. The contention raised by the learned counsel, is as mentioned above squarely covered by the decision in the aforesaid two cases in which precisely this question was raised, but not accepted. The various arguments advanced by the learned counsel for the petitioner in support of the above contention have all been considered, in depth by K. C. Agarwal, J. in the case of Ratan lal v. Additional District Judge, (supra ). In the case of Ram Sanehi v. 1st Addi tional District Judge, (supra), I had occasion to consider this very question. Following the view of K. C. Agarwal, J. , in Ratan Lal's, case, I had also express ed the view that a 'testamentary heir' was not included within the term 'heirs' occurring in Section 3 (a) (2) of the Act. I had adopted the reasoning which had impelled K. C. Agarwal, J. , to hold that having regard to the. scheme of the Act as clearly discernible from an analysis of the various provisions of the Act, testamentary heirs cannot have been intended to bo included within the mean ing of the term 'heirs' in Section 3 (a) (2) of the Act. I adhere to that view. Learned counsel for the petitioners, however, urged that some of the aspects of the problem have not been considered in the aforesaid two decisions. He submitted that the right of a tenant acquired under a will was a fundamen tal right, as a right to property, under. Article 18 of the Constitution of India as it stood at the time of the enactment of the aforesaid Act and that such a right could not be taken away except by or under an enacted law. In support, he cited a few decisions of the Supreme Court. The proposition canvassed by the learned counsel is entirely unexceptionable and needs no authority. But assum ing that the right claimed by the petitioner was a fundamental right at the relevant time, in the present case there is an enacted law, namely, the aforesaid Act. The Act expressly purports to regulate and restrict the rights of landlords and tenants in Urban Buildings. Learned Counsel, however, urged that the law which purports to curb or restrict the rights of a tenant must be a law which expressly does so. I cannot persuade him self to agree with this. Learned counsel was unable to cite any authority for such a wide proposition. In my judgment, the law may be express or it may lay down a scheme which leads to the conclusion that rights stand curbed or restricted by necessary iutendment. K. C. Agarwal, J. has analysed the various provisions of the Act, in some depth, for holding that the Act clearly seems to make disposition of tenancy rights by will impermissible. I entirely agree with that view. Learned counsel next submitted that it is not correct to say that the term 'heirs' means only the natural heirs entitled to succeed under the Personal Law applicable. Learned counsel contended that 'testamentary heirs' have also been held to be included within the meaning of that term as it occurs in various enactments and in support he cited a few decisions in which testamentary heirs were also held to be included within the connotation of the term 'heirs'. The argument is not acceptable. K. C. Agarwal, J. has rightly observed that the term 'heirs' has several meanings and that it is not a word of any fixed connota tion. I am clearly of the view that the problem whether testamentary heirs are included within the term 'heirs' occurring in any statute has to be resolved with reference to the provisions and the purpose of the enactment in which that term occurs. So construed 'testamentary heirs' cannot be said to have been intend ed to be included within the term heirs under Section 3 (a) (2) of the Act. In view of what has been stated above, the only contention raised by learned counsel for the petitioner in support of the petition fails. The view taken by the learned District Judge is correct. It accords with the decisions of this Court. In the result, the petition fails and is dismissed. There will be no orders as to costs. The petition is, however, granted a month's time to vacate the accommodation in dispute. .