RAMA DEVI SHAKYA Vs. FIRST ADDL DISTRICT JUDGE

JUDGEMENT

(1.) SATISH Chandra, C. J. Shri Srivastava, respondent No. 2 was landlord of the accommodation in dispute. He applied for a declaration that the accommodation was vacant and that the same be released in his favour. The Rent Control Tribunal on July 27, 1977 passed an order dismissing the application. Aggrieved, Sri Srivastava went up in revision. The Additional District Judge held that S. R Shakya was the tenant of the accommodation since 1958. The tenant died in May 1973 leaving behind his widow and five sons. The tenancy devolved on the widow and her five sons. One of the sons, Dr. R. R. P. Singh applied for allotment of another house for himself and three of his brothers. The rent control authorities passed an order of-allot ment of that house in 1975. Dr. R. R. P. Singh obtained possession of the allotted house in June, 1975. He alongwith his own family and at least one of his brothers shifted to the allotted house. It was also held that Dr. R. R. P. Singh was normally residing with his father S. R. Shakya, the original tenant. Considering the definition of the term 'tenant' in the Rent Control Act of 1972 the learned Judge held that Dr. R. R. P. Singh was an heir who was normally residing with him in the building at the time of the death of the original tenant. Since he got another building allotted: to himself the accommodation in dispute will be deemed to have become vacant under Section 12 (3) of the Rent Control Act 1972. Since the Tribunal had not recorded any finding on the personal need of the landlord, the matter was remanded to it for consideration of the release application.

(2.) AGGRIEVED, the widow and three sons of the erstwhile tenant have come to this Court under Article 226 of the Constitution. When the Writ Petition came up for hearing before the learned Single Judge, it was argued that allot ment of another building under the Rent Control Act did not amount to "acquiring it" within meaning of Section 23. The learned Single Judge repelled this submission and, in our opinion, correctly.

(3.) WE may take up the second question first. Section 12 (3) reads;- " (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. The Amending Act No. 28 of 1976 added the following Explanation to Section 12 (0:- 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. (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. Clause (a) of Section 3 defines a 'tenant' It says- " (a) 'tenant' 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 nor mally resided with him in the building at the time of his death: (2) in the case of a non-residential building, his heirs. Clause (g) of Section 3 defines 'family' as follows:- " (g) 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 divor ced or judicially separated daughter or daughter of a male lineal descendant as may have been normally residing with him or her, and includes in rela tion to a landlord, any female having a legal right or residence in that building;