MUMTAZ AHMAD Vs. DISTRICT JUDGE KANPUR AND ORS.

JUDGEMENT

(1.) This writ petition is directed against an appeallate order of the Additional District Judge, Kanpur dated 15th January, 1976 whereby the District Judge upheld the order of the Deputy Town Rationing Officer, Kanpur, who had rejected an application for review of the order of release passed under Section 16(1)(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

(2.) Learned counsel for the petitioner raised two contentions. He contended that no opportunity had been given to the petitioner to contest the release application and as such the order of release cannot be sustained. The second point urged in this behalf was that Maudood Arif, who was found in actual occupation of the accommodation, was a grandson of the petitioner and his occupation was not illegal. It was also urged that the petitioner was an old widower and Maudood Arif stayed with him and this did not make him an illegal occupant.

(3.) I have heard the learned counsel for the parties and perused the petition and the connected papers. It is not disputed that no notice of the release application was given to the petitioner. He admittedly was a tenant of one Wali Mohammad and had obtained possession of the house on the 20th December, 1970 after some litigation. Wali Mohammad, however, transferred the house in favour of respondent No. 3 on the 15th April, 1974. The husband of respondent No. 3 made an application for allotment of the house on the ground that it had fallen vacant, for it was being occupied by a person who was an illegal occupant. Although the application of Mohammad Shafi was listed for hearing on the 2nd November, 1974, the release application was allowed five weeks earlier i.e. on the 25th September, 1974. Against the above order, an appeal was filed before the District Judge, the learned District Judge found the appeal premature and directed the petitioner to file a petition for revew under Section 16(5)(a) of the Act. The petitioner accordingly filed a review application, which came up before the Deputy Town Rationing Officer, Kanpur who was authorised to hear the application. The opposite parties were heard and thereafter the Deputy Town Rationing Officer rejected the application for review. He held that the petitioner was not in occupation of the accommodation and that it was occupied by one Maudood Arif, who was a police constable and had been illegally inducted into the premises. He further found the need of the respondent No. 3 to be genuine. Thereafter, an appeal was filed. The appeallate Court concurred with the findings of the Deputy Town Rationing Officer. He further concluded that the petitioner was not in occupation of the accommodation for he had been drawing his pension on his permanent address at Allahabad and that he failed to produce ration card showing his residence in the accommodation in dispute in Kanpur. The main contention seems to be that Maudod Arif was a grand-son of the petitioner and, as such, his occupation could not be an illegal occupation. There was thus controversy on this point as to whether Maudood Arif was a member of the petitioner's family or not. Section 3(g) of Act defines family to mean in relation to the Landlord or tenant of a building his or her spouse, male lineal descendant, such parents grand-parents and any unmarried or widow or divorced or judicially separated daughter or daughter of a male lineal descendant as may have been normally residing with him or her. We are concerned only with the words 'male lineal descendant'. If Maudood Arif was male lineal descendant of the petitioner then he would be a member of the family and his contention would have some force. A rejoinder affidavit has been filed in this case wherein he has given pedigree. In paragraph 4 of the rejoinder affidavit, it is shown that Mumtaz Ahmad descended from the branch of Sakeena whereas Maudood Arif descended form the branch of Munni Bibi. As shown in the pedigree, the relationship between Mumtaz Ahmad and Maudod Arif is one of grand-nephew. A grand-nephew is not a male lineal descendant. As a matter of fact, no issue of Mumtaz Ahmad has been shown the pedigree. The Deputy Town Rationing Officer noticed that Maudodd Arif has been mentioned as Nath Demand of Mumtaz Ahmad in the ration card. A male lineal descendant cannot be a son-in-law or a grand son-in-law and therefore I am unable to conclude that Maudood Arif was a member of the family of the petitioner defined in Section 3(g) of the Act.