JUDGMENT
S. Rafat Alam, J.
1. This writ petition is directed against the judgment and order of the 9th Additional District Judge, Kanpur (Nagar) dated 21-4-1990.
2. The short and admitted facts giving rise to the present writ petition is that the landlady-respondent No. 1 moved an application before the Rent Control and Eviction Officer under Section 16 of the J. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) for release of premises No. 10/429 Kahalai Lines, Kanpur in her favour on the ground, inter alia, that Dr. T.N. Seth, who was the tenant has migrated permanently to America and has substantially removed his effects and indicated his brother, S.N. Seth, who has no tenancy right, his possession there of is illegal and unauthorised and, therefore, the accommodation in question is deemed vacant under Section 12 of the Act, and the same is bona fidely required for occupation by herself and her family members for residential purpose, as they were living in a portion of premises No. 113/119, Swaroop Nagar, Kanpur on rent and the landlord has filed Rent Case No. 31 of 1985 before the Prescribed Authority for their eviction under Section 21(1 )(a) of the Act.
3. The petitioner opposed the prayer by filing objection stating that Dr. T.N. Seth was the Karta of Joint Hindu Family and has been in America since March, 1976, in connection with his job and since then the petitioner being member of the Joint Hindu Family is paying rent to erstwhile landlord regularly. However, when the petitioner learnt that the house has been purchased by respondent No. 1, he tendered the rent for the month of July and August, 1986 which she refused to accept. Hence, he deposited the rental in terms of Section 30(1) of the Act after taking permission from the Rent Control Authority and since then has been regularly depositing the rent. It has also been asserted in the objection that since the petitioner is residing in the accommodation in question with the consent of the landlord prior to July, 1976, therefore, his tenancy stood regularised in terms of the provisions contained in Section 14 of the Act.
4. The Rent Control & Eviction Officer having heard the parties found that the accommodation in question is not vacant, nor there is any deemed vacancy under Section 12 of the Act, hence rejected the application under Section 16 of the Act for the release of the accommodation. Being aggrieved with the aforesaid order, the landlord went in revision under Section 18 of the Act before the learned District Judge, which was heard and decided by the 9th Additional District Judge vide judgment and order dated 21-4-1990 which has been challenged in this petition.
5. At the time of arguments, learned counsel for the parties were permitted to file their written argument also which they have filed and the same are on record.
6. Learned counsel for the petitioner in support of the writ petition raised and argued four points, viz. (I) The order dated 1-11-1988 of the Rent Control and Eviction Officer not being the final order was not revisable under Section 18 of the Act. (II) The revisional Court has erred in recording its own finding regarding vacancy instead of remitting back the case to the Rent Control and Eviction Officer for giving finding on the question of vacancy. (III) The rent was paid by the petitioner from his own account since 1972 to June, 1995 and was being accepted by the landlord, his tenancy stood regularised in view of the provisions contained under Section 14 of the Act and (IV) The tenancy was in the name of Joint Hindu Family and Dr. T.N. Seth was its Karta and, therefore, the rent paid by him is deemed to have been paid on behalf of the Joint Family of which this petitioner is one of the member.
7. On the other hand, Shri B.D. Mandhayan, learned counsel appearing on behalf of the landlord (respondent No. 1) vehemently opposed the writ petition and submitted that the order dated 1-11-1988 being the final order was revisable under Section 18 of the Act. He also submitted that the accommodation in question was let out to Dr. T.N. Seth who has settled permanently in America even then the rent receipts continued to be issued in his name only. The petitioner was not recognised either by the erstwhile landlord or by the present landlady as tenant and, therefore, he cannot get the benefit of Section 14 of the Act.
8. Learned counsel for the petitioner while elaborating his first contention that the revision under Section 18 of the Act was not maintainable argued that the Rent Control and Eviction Officer found that the accommodation in question is not vacant and, therefore, by his order dated 1-11-1988, he simply ordered to consign the file to the Record-room without passing any order on the application of the landlady under Section 16 of the Act for the release of the accommodation. This order not being the final order was not revisable under Section 18 of the Act and, therefore, the learned Revisional Court ought to have dismissed the revision being not maintainable. It is urged that the order to consign the case to the record-room is of administrative nature and not a judicial order; it does not amount for the final disposal of the case and the application of the landlady under Section 16 of the Act remained pending until a judicial order is passed. In support of the contention reliance has been placed on the judgments of this Court rendered in the case of Sheikh Rahim Bux v. Raghunandan Lal D.H.O.E. reported in 1966 All LJ 376, Sheoraj Singh v. Kamley Lal reported in AIR 1945 All 172 : (1945 All LJ 92) and Ramakant Malaviya v. Satyanarain Malaviya reported in AIR 1988 All 552. Reliance has also been placed on a judgment of the Privy Council rendered in the case of Maharaj Bahadur Singh v. A.H. Forves reported in AIR 1929 PC 209.
9. In my view, the contention of the petitioner that by order dated 1-11-1988 the release application of the landlady was not disposed of and simply ordered to be consigned to the record room does not amount to disposal of the application, is misconceived and deserves to be rejected for the reason that the prayer made in the application moved by the landlady in the month of February, 1985 was to release the premises No. 10/429 in her favour, inter alia, on the ground that the landlady along with her family members is residing in a rented accommodation in a portion of premises No. 113/119 in Swaroop Nagar and the landlord has moved an application under Section 1(1)(a) of the Act for eviction on the ground of personal need. It has also been asserted in the said application that the tenant of premises No. 10/ 429 Dr. T.N. Seth was permanently shifted and settled in the United States of America after inducting his brother, S.N. Seth, in the accommodation in question whose occupation is only that of a trespasser. This application was clearly one under Section 16(1)(b) of the Act. The position, therefore, is that a definite application had been made by the landlady for the release of the accomodation in her favour and that prayer has been rejected by the Rent Control and Eviction Officer. However, while deciding that application the Rent Control mid Eviction Officer recorded a finding that the accommodation in question is not vacant and hence ordered that the file be consigned to the record room which amounts to dismissal of the application. Even though no order in clear terms of rejecting the application has been passed, in spite of that it will tantamount to an order of dismissal of the application under Section 16 of the Act. By this order the release application stood disposed of finally and nothing remains pending to be decided subsequently and, therefore, in my view this order was revisable under Section 18 of the Act and no error has been committed by the learned 9th Additional District Judge in entertaining the revision,
10. The authorities cited and relied upon by the learned counsel for the petitioner are not applicable in the facts and circumstances of the case, inasmuch as, they were on different facts and context. In the case of Sheikh Rahim Bux v. Raghunandan Lal D.H.O.E. (1966 All LJ 376) (supra) and Sheoraj Singh v. Kamley Lal (AIR 1945 All 172) (supra) the execution proceedings could not be proceeded by reason of the injunction against the decree-holder and thus the Court ordered to consign the record to the record room without dismissing the execution case. In this backdrop this Court held that the order consigning the record to the record room did not amount termination of the execution proceedings. Similarly, in the case of Ramakant Malaviya v. Satyanarain Malaviya (AIR 1938 AH 552) (supra) the trial Court merely directed that the application be filed for the present in the record room in view of the order of the High Court staying all the proceedings on that application. Hence, the order to send a case to the record room was held to be an administrative order and not a judicial order as it is not a final disposal of the case. The judgment rendered in the case of Maharaj Bahadur Singh v. A.H. Forves (AIR 1929 PC 209) (supra) is also on a different question and is not applicable in the facts and circumstances of the present case. It would thus be apparent that in all the cited cases, the matter was considered to the record room on technicality of law or prudence whereas in the instant case it was adjudicated on merit, meaning thereby a judicial determination which would certainly permit judicial scrutiny by way of revision.
11. Actually the order consigning the case to the record room is final order or not is dependent upon the facts of each case and is to be decided by considering all the surrounding circumstances under which such order was passed. As noticed above, in the instant case the release application has been ordered to be consigned to the record room on the ground that there is no vacancy. It is not the phraseology which has been used in the order, but the substance of the order is material. By order dated 1-11-1988 the Rent Control Authority in fact intended to finally terminate the proceedings and after this order, nothing remains pending for decision and, therefore, it is a final order, hence revisable under Section 18 of the Act and the revision filed by the landlady was maintainable.
12. So far the second contention raised on
behalf of the petitioner that the Rent Control &
Eviction Officer has only decided the question of
vacancy and no revision lies under Section 18 of the
Act against the order deciding vacancy and further that the revisional Court has committed error
in substituting its own finding on the question of
vacancy, has also no merit and deserves to be
rejected.
13. There is no dispute that the order regarding vacancy passed under Section 12 of the Act is not revisable under Section 18 of the Act as has been held in series of judgment of this Court. By order dated 1-11-1988 the Rent Control and Eviction Officer has not only decided the question of vacancy but has also rejected the application of the landlady under Section 16 of the Act for release of the accommodation in question. This order being a composite order on the vacancy as well as the release application, is revisable under Section 18 of the Act. Therefore, the authorities cited by the learned counsel for the petitioner reported in 1982 (1) All Rent Cas 809 : (1983 All LJ 112) 1983 (1) All Rent Cas 411 and 1991 (1) All Rent Cas 241 are of no help to the petitioner because in those cases, the revision was filed against the order passed under Section 12 of the Act notifying the vacancy simplicitor, whereas in the instant case the revision was preferred against the order rejecting release application under Section 16 of the Act.
14. It is also well settled legal position that the finding of fact is not vulnerable in revision but where it is found to be based on non-application of mind or on no evidence, being based on surmises and conjectures, can be interfered with by the revisional Court. Similarly, if the order under revision is based on non-appreciation of facts or misinterpretation of law, can also be interfered with by the revisional Court.
15. In the case in hand, the Rent Control & Eviction Officer without there being any evidence on record showing that the petitioner was the member of the family of the tenant, Dr. T.N. Seth, and also without appreciating the provisions contained in Section 12 of the Act ordered that the accommodation in question is not vacant and consequently rejected the release application of the landlady. It would be useful to refer the relevant provisions of the Act. Section 3(g) defines the family which is as under :
“(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, grandparents and any unmarried or widowed or 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;”
Thus, brother is not included in the family as defined under the Act and, therefore, occupation by the petitioner is unauthorised.
16. Section 12 of the Act prescribes the condition under which the deemed vacancy shall occur. The relevant part thereof reads as under:
“12. Deemed vacancy of building in certain cases.– (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if —
(a) he has substantially removed his effects therefrom, or
(b) he has allowed it to be occupied by any person who is not a member of his family, or
(c) in the cases of residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of Sub-section (1), or Sub-section (2), or 16 (Sub-section (3), Sub-section (3-A) or Sub-section (3-B), shall, for the purposes of this Chapter, be deemed to be vacant.”
Thus, in view of Sub-section (1) of Section 12 of the Act, if a landlord or tenant of a building substantially removed his effects therefrom or it has been allowed to be occupied by any person who is not member of his family and in the case of residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere, he shall be deemed to have ceased to occupy the building and by virtue of Sub-section (4) of Section 12 of the Act, such building shall be deemed to be vacant.
17. In the instant case, admittedly the tenancy was in the name of Dr. T.N. Seth, who has substantially removed his effects therefrom and migrated permanently to America. Thus, he ceased to occupy the building in view of Sub-section (1) of Section 12 of the Act and further by virtue of deeming clause of Sub-section (4) of Section 12 of the Act, the building shall be deemed to be vacant. Therefore, the view taken by the Rent Control & Eviction Officer that the building in question is not vacant, is wholly erroneous, based on wrong appreciation of law, hence the revisional Court has rightly interfered with the order dated 1-11-1988.
18. The next submission of the learned counsel for the petitioner is that in view of provisions contained in Section 14 of the Act, has tenancy stood regularised. It is argued that the petitioner was paying rent since 1972 to June, 1995 regularly from his own account through cheque which was also accepted by the landlord, and, therefore, by virtue of the provisions contained under Section 14 of the Act, he shall be deemed to be an authorised tenant of the building, Reliance has been placed on the judgment of this Court rendered in the cases of Rajendra Kumar v. District Judge, Buland Shahar reported in 1983 (1) All Rent Cas 793 : (1984 All LJ 99) and Ramchandra Gupta v. 4th Additional District Judge, Allahabad reported in 1979 All Rent Cas 222.
19. Section 11 of the Act prohibits a landlord from letting out any building except in pursuance of allotment order issued under Section 16 of the Act. It provides that “no person shall let any building except in pursuance of an allotment order issued under Section 16.” Any tenant occupying a building without allotment order under Section 16 of the Act is an unauthorised occupant and liable to be evicted. Section 14 of the Act, however, protects the interest of those tenant, who have been inducted or is in occupation of building with the consent of the landlord immediately before 5-7-1976, i.e. prior to the date of commencement of the Amending Act and against whom any suit or eviction proceeding is not pending before any Court or authority. It reads as under :
“14. Regularisation or occupation of existing tenants.– (Notwithstanding anything contained in this act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building)”.
20. However, for claiming benefit under Section 14 of the Act, it has to be proved that the tenant is in occupation of the building on the relevant dates with the consent of the landlord as tenant and not as a mere occupant. No evidence has come on record to show that the petitioner was occupying the accommodation in question with the consent of the landlord. It was contended that since the rent paid by the petitioner was being accepted by the landlord and thus, it would be deemed that his occupation was with the consent of the landlord. I am not convinced with the submission for the reason that merely rent and acceptance thereof is not sufficient to indicate and prove that the tenant is occupying the building with the consent of the landlord. The rent receipts contained in Annexures 1 to 18 to the writ petition, were issued in the name of Dr. T.N. Seth through Mr. S.K. Seth (petitioner). It would, thus, be apparent that the rent was being paid on behalf of Dr. T.N. Seth through the conduit of the petitioner but by that fact alone the conduit, i.e. the petitioner could not arrogate himself to the level of a tenant as defined by the statute; after all there was neither any privity of contract nor the extended umbrella of law to confer this status on him. As indicated above, no evidence has been given by the petitioner to prove that the landlord has recognised him as tenant and in the absence of the same he cannot get benefit of Section 14 of the Act.
21. In the case of Rajendra Kumar v. District Judge (1984 All LJ 99) (supra) and Ram Chandra Gupta v. 4th Additional District Judge, Allahabad (1979 All Rent Cas 222) (supra) cited by the petitioner, it has been found that the tenant was in occupation of the accommodation on the relevant dates with the consent of the landlord and thus, the aforesaid two authorities do not apply in the facts and circumstances of the present case.
22. The last submission made on behalf of the petitioner was that the tenancy was in the name of Joint Hindu Family of which Dr. T.N. Seth was Karta and when he left for America the tenancy devolve upon him and he is the tenant of the premises in his own right. It is contended that the concept of Joint Hindu Family is applicable under the provisions of the Act as well. In support of the contention learned counsel placed reliance on judgments of this Court rendered in the case of Sandeep Jain v. 2nd Additional District Judge, Lucknow, reported in 1987 (2) All Rent Cas 164, Ram Gopal Agarwal v. 4th Additional District Judge; Meerut, reported in 1986 (2) All Rent Cas 118 and Shri Sripal Jain v. Shri Raj Kumar Jain, reported in 1981 All Rent Cas436:(1981 All LJ 863).
23. On the other hand, Mr. Mandhayan, learned counsel for the landlady submitted that the concept of Joint Hindu Family is alien to the Rent Control Act. The argument proceeds that the family has been defined in the Act itself which is self-contained Code and, therefore, the definition of Joint Hindu Family cannot be imported from any other Act. He placed reliance on a Judgment of Hon’ble Supreme Court rendered in the case of Mohd. Azeem v. District Judge, Aligarh, reported in 1965 (2) All Rent Cas 85 wherein the Hon’ble Court while considering the definition of ‘tenant’ under Section 3(a) of the Act and of ‘family’ under Section 3(g) of the Act, observed that when the Act defines ‘tenant’ and ‘family’ reference to personal law is irrelevant and the concept of joint tenancy is foreign. Reliance has also been placed on a judgment of this Court, reported in 1997 (2) All Rent Cas 418, 1995 (2) All Rent Cas 594, 1994 (1) HBD (All) 57, 1978 All Rent Cas 103 and 1984 (1) All Rent Cas 35 wherein this Court has also taken similar view relying on 1985 (2) All Rent Cas 85.
24. It is apparent from the definition of family given in the Act that brother is not expressly included in the family and, therefore, by importing concept of Joint Hindu Family, he cannot be included in the family as defined under the Act. Besides that there may be presumption of Joint Hindu Family but there can be no presumption of the assets and liability of Joint Hindu Family. No evidence has been adduced showing that the tenancy was in favour of Joint Hindu Family of which Dr. T.N. Seth was ‘Karta’. Even Dr. T.N. Seth did not come forward by filing affidavit claiming that the tenancy was in his name as a Karta of Joint Hindu Family. Admittedly, the petitioner and his brother including Dr. T.N. Seth have got ancestral house No. 48/128 in Mohalla Generalganj, Kanpur which was owned by their father Shri Raja Ram Seth, who was alive when the present accommodation was let out to Dr. T.N. Seth and, therefore, during life time of his father Dr. T.N. Seth cannot be Karta of family. The building in question was let out in the name of Dr. T.N. Seth and not in the name of his father and, therefore, the tenancy right did not devolve upon the petitioner. It is neither pleaded for evidence has been lead to the effect that nucleus of Joint Hindu Family was utilised for creation of tenancy and the rent was being paid from the account of Joint Hindu Family.
25. Therefore, in my view, in the absence of proof that the building was let out to Dr. T.N. Seth as Karta of Joint Hindu Family, the petitioner cannot claim right of tenancy as a member of Joint Hindu Family. He ought to have adduced evidence to prove that at the time building in dispute was taken on rent by Dr. T.N. Seth there existed Joint Hindu Family of which Dr. T.N. Seth was karta and the petitioner was Member.
26. In this view of the matter, it cannot be held that the tenancy was in favour of Joint Hindu Family and, therefore, the tenancy devolve upon the petitioner.
27. Having considered the submissions and looking to the facts and circumstances of the case, in my view, the Learned Revisional Court has correctly appreciated the evidence and the law and there upon has rightly reached to the conclusion that deemed vacancy has occurred and remanded the matter to the Rent Control and Eviction Officer for further enquiry and decision in regard of release application or allotment application, as the case may be, according to law.
28. In view of the discussions made above, I do not find any manifest error justifying interference in the impugned judgment/order by this Court under Article 226 of the Constitution of India. There is no merit in the writ petition. It is, accordingly dismissed out without costs.
