RAM SANEHI Vs. FIRST ADDL DISTRICT JUDGE FARRUKHABAD

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitu tion of India directed against an order passed by the learned 1st Additional District Judge, Farrukhabad dated 17-2-1977 allowing a revision and setting aside an order passed by the learned Rent Control and Eviction Officer, Far rukhabad dated 12-4-1976 allotting a shop, which is the subject matter of this Revision. The undisputed facts are that the shop in dispute was let out to one Puran Lal by its owner, namely, Ganesh Prasad alias Ganeshi Lal through a rent note dated 11-6-1971. Puran Lal died on 15/16-3-1976. He was not survived by any issue. On 19-3-1976, an application was moved by the owner Ganeshi Lal for the release of the shop in his favour on the ground that it was in a dilapidated condition and had needed reconstruction. Meanwhile, some other applicants including the petitioner, applied for allotment of the shop. All the applications for allotment, except that of the petitioner, were dismissed. The application of the owner was also dismissed. Against allotment of shop in favour of the petitioner, Kishan Chand respondent No. 3 filed an appeal under Section 18 of the U. P. Urban Build ing (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for setting aside of the order passed by the Rent Control and Eviction Officer on the ground that the shop was not vacant, that he was in occupation of the shop in the life time of Puran Lal, and that under a will executed by Puran Lal in favour of Kishan Chand, he was an heir of Puran Lal entitled to continue in occupation and that being so, the shop was never vacant or available for being allotted. During the pendency of the appeal, Section 18 was amended as a result of which amendment, the appeal was converted into a Revision. The Learned District Judge hearing the Revision, allowed Kishan Chand aforesaid to file a true copy of the will said to have been executed in his favour by Puran Lal. There was some opposition to the filing of this paper at the revisional stage but the learned District Judge overruled that objection and allowed the paper to be brought on the record. The learned District Judge has allowed the Revision, solely on the ground that Kishan Chand was an heir and legal representaive of Puran Lal on the basis of the Will executed in his favour, and consequently, the shop cannot be said to have fallen vacant. The learned District Judge accordingly allowed the Revision, and set aside the order passed by the Rent Control and Eviction Officer. Aggrieved by the aforesaid decision, the petitioner has filed this writ petition. Learned counsel for the petitioner has urged that the view of the learned District Judge that tenancy rights are heritable and consequently, a person claiming to be an heir on the basis of a Will is also an heir within the meaning of Section 3 (a) (2) of the aforesaid Act is, manifestly erroneous in law having regard to the provisions of the aforesaid enactment. Learned counsel for the petitioner has placed reliance on a decision of this Court in Ratan Lal v. Additional District Judge, Bulandshahar and other Civil Misc. Writ No. 1416 of 1977 (decided on 27-3-1979), in which a learned Judge of this Court has answered the precise question involved in the present case in favour of the contention canvassed by the learned counsel for the petitioner in this case. Learned counsel for the opposite-party on the other hand urged that the view taken by the learned District Judge, is correct and that the order passed by him does not call for interference by this Court under Article 226 of the Constitution. Having heard learned counsel for the parties, I am clearly of the view that the order passed by the learned District Judge is manifestly erroneous in law and is unsustainable. The learned District Judge has observed as follows in his order: - "There is no dispute in regard to the legal position that the tenancy rights are included amongst immovable property and are liable to be succeeded by the heir and legal representatives. THIS being the legal position, Kishna Chand appellant-revisionist has come in possession of the tenancy of the shop automatically through Will dated 10-11-1975. Consequently, the conclusion is inescapable that the shop has been continuing in tenancy of the appellant-revisionist and did not fall vacant on the death of Puran Lal. THIS finding of the learned District Judge is manifestly erroneous in law. The learned Judge deciding the abovementioned Writ Petition No. 1416 of 1977 in the case of Ratan Lal v. Additional District Judge, Bulandshahar and another after an exhaustive analysis of the various provisions of the aforesaid Act and the scheme underlying it, came to the conclusion that it is not permis sible under the provisions of the aforesaid Act for a tenant to settle the tenancy rights in favour of another individual by means of a will. The learned Judge held that testamentary disposition of tenancy rights in regard to a mutation governed by the provisions of the aforesaid Act is clearly prohibited and, consequently, a person claiming under a will cannot claim to be a tenant within the meaning of Section 3 (a) (2) of the aforesaid Act. The learned Judge held that transfer of tenancy rights not being permissible in the life time of the tenant, it is inconceivable that the legislature intended that tenancy rights could be passed on to others under a will. I am in full agreement with the view expressed by the learned Judge deciding the case of Ratan Lal v. Additional District Judge (supra) and I hold that the view of the learned District Judge to the contrary is manifestly unsustainable in law. Learned counsel for respondent No. 3 urged that the abovementioned decision in the case of Ratan Lal v. Additional District Judge (supra) was rendered after the decision of the case, and consequently, it cannot be said that the order passed by the learned District Judge disclosed an error appa rent on the face of the record. Learned counsel for the opposite-party placed reliance on a decision of a case in Dr. R. C. Sakhuja and others v. R. P. Kohli and another 1970 All India Rent Control Journal, 44, in which construing the provisions of Delhi Rent Control Act, the learned Judges of the Delhi High Court held that disposing of the property by means of a will does not amount to a transfer of property, and consequently, devolution of tenancy rights in the normal way by succession, whether testamentary or non-testamentary, is not intended to be covered by the expression "acquired by transfer" as used in sub-section (6) by Section 14 of the aforesaid Act. Relying on this decision, learned counsel contended that I should give a wider meaning to the word "heir" as occurring in Sec tion 3 (a) (2) of the aforesaid Act and hold that succession even under a will was also contemplated to be included within the meaning of the word "heir" used in Section 3 (a) (2) of the aforesaid Act. Suffice it to say that the Delhi High Court was concerned with the interpretation of a different enactment. The present case is covered by the provision of U. P. Urban Building (Regu lation of Letting, Rent and Eviction) Act, 1972, the provisions of which were exhaustively analysed by the learned Judge deciding the case of Ratan Lal v. Additional District Judge, Bulandshahar (supra.), and I prefer placing reliance on the decision of our own Court. As regards the contention of the learned counsel for respondent No. 3 that since the decision of the case of Ratan Lal v. Additional District Judge (supra), was rendered after the decision against which the present writ peti tion has been filed, it cannot be said that the order disclosed an error apparent on the face of the record. In my view, the argument is misconceived. The decision rendered by this Court in Raton Lal v. Additional District Judge (supra) only interpreted the law which was already in existence at the time when the learned District Judge gave the decision. The decision of this Court has not changed the legal position There has been no change in the law. That being so, if the decision of the learned District Judge is contrary to the decision of this Court, it will be a clear case where the decision under challenge will be said to disclose an error apparent on the face of the record. Learned counsel for the opposite-party lastly urged that I should send back the case to the learned District Judge for an inquiry whether the respondent No. 3 is not entitled to claim tenancy rights as an heir under some other provision i. e., otherwise than under the will. In my view, this request cannot be acceded to. A true copy of the application of respondent No. 3 had been annexed to the rejoinder affidavit. A reading of that application makes it abundantly clear that the only ground on which the respondent No. 3 sought to base his rights was the will. There was no other basis. Conse quently, I would not be justified in directing the learned District Judge to enter into a fresh inquiry even though no issue was raised before it when the matter was pending in revision. For the reasons stated above, this writ petition succeeds and is allowed. The order passed by the learned 1st Additional District Judge, Farrukhabad dated 17-2-1977 is quashed and that passed by the Rent Control and Eviction Officer in favour of the petitioner on 12-4-1V76 is restored. The petitioner will be entitled to his costs from restored.