Civil Appeal No 360 of 1985
From the Judgment and Order dated 2351984 of the Allahabad High Court in WP No 4230 of 1984
Shakeel Ahmed Syed for the Appellant
IS Sawhney for the Respondents
908 The Judgment of the Court was delivered by RANGANATH MISRA J
The appellant who filed a writ application before the Allahabad High Court assailing the revisional order of the District Judge of Aligarh is in appeal by special leave
One Manzoor Hussain was admittedly the tenant of a premises located at Aligarh
He died in 1969 leaving behind a widow and three sons Mohd
Azeem the appellant Mohd Naim Mohd Nadeem and a daughter Nuzhat
The widow and the sons and the daughter of Manzoor continued to live in the tenanted premises on payment of rent
It is the case of the appellant that being the eldest member of the family he was paying that rent
The Rent Control Inspector submitted a report on June 22 1983 that Naim appellant s brother had built a house four or five years before in Amir Nisan a part of the city of Aligarh and therefore the tenancy must be deemed to have terminated in view of the provisions containd in section 12 of the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972  Act  for short
When notice was issued from the Court of the Rent Control and Eviction Officer Aligarh respondent 2 herein the appellant entered contest by filing an affidavit to the affect that he has been living with 13 members of his family in the premises and rent was being collected from him following the death of his father Manzoor Hussain
Merely y because Naim had built a house in 1980 the tenancy in favour of the other heirs of Manzoor Hussain would not terminate and in such circumstances the premises cannot be held to become vacant and available for allotment to some other person
The Prescribed Authority did not accept the contention of the appellant and held that the house in question must be deemed to have become vacant when Naim who was a member of the family had built a house
Appellant carried a revision before the District Judge respondent 1 which was dismissed
The revisional authority placed reliance on a Full Bench decision of the Allahabad High Court in the case of Smt
Rama Devi Shakya and Anr
vs The Additional District Judge Lucknow  Anr1
The Full Bench had held 1 1981 Allahabad Rent Cases 305
909 Where one of the co tenants builds or otherwise acquires another residential building within the meaning of sub section
3 of section 12 the tenant namely the entire set of co tenants shall be deemed to have ceased to occupy the building under his sub tenant
It cannot be that the share belonging to the co tenant in default alone shall fall vacant
 The writ application filed by the appellant before the High Court was summarily dismissed as the Court was of the view that it was not a fit case for interference under article 226 of the Constitution
At the hearing the decision of the Full Bench of the Allahabad High Court In Rama Devi s case was placed before us
An attempt was made on the appellant s side to show that the interpretation put on section 12 3 of the Act was erroneous and a wrong conclusion had been reached Counsel for respondent 3 appointed by the Supreme Court Legal Aid Committee supported the judgment and relied upon its conclusion for upholding the decision of the learned District Judge
Reference to some of the provisions of the Act becomes necessary before we proceed to make an analysis of the full Bench decision
Chapter III of the Act makes provision for regulation of letting
Section 11 provides that no person shall let any building except in pursuance of an allotment order issued under section 16
Section 12 makes provision for deemed vacancies of buildings in certain cases
Sub section
3 of section 12 is relevant for the disposal for the appeal
That sub section runs thus 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   As the words tenant and family occur in sub section
3 reference to the definitions of these two terms is also relevant
910 Tenant  and family have been defined in clauses a and g respectively of section 3 Tenant  according to the definition 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 normally resided with him in the building at the time of his death 2 in the case of a non residential building his heirs
 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 of 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
 There is no dispute that along with Manzoor his wife his three sons and the daughter were living in the disputed premises
After Manzoor s death the widow the three sons and the daughter continued to live in that house
There is reference to payment of rent in the order of the Prescribed Authority and in the petition for Special Leave an assertion has been made that it was the appellant who had been paying the rent after the death of Manzoor
This plea has not been controverted
In the setting of things the appellant being the eldest son was naturally expected to pay the rent
There is material on record to show that Azeem and Naim were already married and have been living along with their wives in the house along with other members of the family
As the definition of tenant  indicates on a tenant s death his heirs as normally resided with him would also be tenant qua residential buildings
Therefore the widow all the three sons and unmarried daughter became tenants when the Act came into force notwithstanding the fact that Manzoor had died in 1969
We may now revert to section 123 of the Act
Admittedly we are concerned with a residential building
It is the case of the Prescribed Authority and there is no dispute about it that Naim has built a house in the same city some time in 1980
Naim s building a house and moving into it cannot wipe out the interest of the widow other two sons including the appellant and the daughter if in their own right they were tenants by satisfying the requirements of the definition
The words if the tenant or any 911 member of his family  obviously mean in the facts of the case Naim and the members of his family and do not relate to the widow other two sons and the daughter of Manzoor
If everyone s interest was to be wiped out section 3 had to provide differently and instead of he shall be deemed to have ceased to occupy the building under his tenancy  as occurring in sub section
3 reference would have been made to all the tenants
The ratio of the Full Bench decision to which we shall presently advert and which has been relied upon by the Prescribed Authority and the learned District Judge is bound to lead to situations which could never have been contemplated by the legislature
For instance if Naim or Nadeem found inconvenient to live with the other members of family when Manzoor died and he moved into another house with a view to living separately and the fact of such a move on his part brought about cessation of tenancy and the house Manzoor lived in was deemed to have become vacant the widow the other sons and the daughter of Manzoor would immediately find themselves in a very helpless condition
Or for instance if one of the sons got an employment in a Factory located within the same city and for convenience moved into a Factory quarter for residence the same result would ensue to the miserable plight of the other members
Or consider the case of a divorced daughter of the tenant living with him when she builds or acquires a separate premises with funds provided by her ex husband
No sooner she moves into her house the father s tenancy come s to an end
Or take the case of an expanding family
Several sons come of age are married and many children are born to them
The accommodation becomes insufficient and one or two of the sons move into a separate house to ease the situation
If in such premises father s tenancy terminates and the daughter which he and members of his family reside is deemed to have become vacant the family would be visited with hardship knowing no bounds
Take the unhappy and miserable lot of a couple whose infirm son suffering from a serious malady highly contagious is shifted to an independent residence for exclusion
Would that too lead to termination of tenancy qua the main residential premises  In an Act intended to stabilise letting rent and eviction by regulation the legislature could not have evinced such intention
912 It is true that the legislative purpose behind section 12 appears to be in keeping with the scheme of the Act making available as much accommodation as possible for allotment to needy persons
That being the purpose the legislature could not have intended to render persons rehabilitated in tenanted premises homeless
In our view when the Act defines tenant  and family  reference to personal law is irrelevant and the concept of joint tenancy is foreign
Now a reference to the Full Bench decision
The following questions had been referred to the Full Bench for decision 1 a Whether the view expressed in Budh Sen vs Sheel Chandra Agarwal
1977 AWC 553 and Ramesh Chand Bose vs Gopeshwar Prasad Sharma 1976 AWC 301 to the effect that the heirs of a tenant are tenants in common and not joint tenants is consistent with the view expressed by the Supreme Court in Badri Narain vs Rameshwar Dayal   b Do such heirs of a tenant become tenants in common inter se but remain joint tenants qua the landlord  c What is the effect of one such heirs acquiring another building as mentioned in section 123 of UP Act No 13 of 1972  2
Whether the view expressed in Shri Nath Tandon vs Rent Control  Eviction Officer 1979 All Rent Cases 541 to the effect that a member of the family who acquires another building should both have been wholly dependent on him for section 123 to be attracted is consistent with Explanation b to section 123  The Full Bench proceeded on the basis that the heirs become joint tenants and answered the main problem by saying that if any member of the family of such joint tenants built or acquired a house in vacant state the tenancy would be deemed to have ceased
In framing the questions for reference and in answering the referred questions the definition of tenant was lost sight of
All the heirs as normally reside with the deceased tenant in the 913 building at the time of his death become tenants
The definition does not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy
Each heir satisfying the further qualification in section 3a1 of the Act in his own right becomes a tenant and when we come to section 123 of the Act the words the tenant or any member of his family will refer to the heir who has become a tenant under the statutory definition and members of his family Family  having been defined for convenience if we refer to the facts of the present appeal qua Naim the definition would cover Naim s wife his male lineal descendants his mother and those who are covered by clause iii in the definition of family
It would not by any stretching embrace the appellant or his brother Nadeem and the sister
the Full Bench in our view fell into an error in working on the basis of joint tenancy running counter to the scheme under the Act
The conclusion reached by the Full Bench in our view is therefore wholly unsustainable and we cannot extend our agreement to the conclusion that when one of the members of the family built house or moved into a vacant premises other than the tenanted premises in occupation there was a deemed cessation of the tenancy and a deemed vacancy occurred of the tenanted premises
Now coming to the facts of the appeal when Naim built a house and shifted into it the tenancy of the appellant and his brother along with their mother and sister did not terminate
They continued to be tenants in their own right being covered by the definition of tenant  and there is no deemed vacancy as held by the Prescribed Authority the learned District Judge and the High Court
The appeal is allowed and the decisions of the different forums referred to above are set aside with costs through out
Respondent 2 who by making his order of deemed vacancy gave rise to the dispute which ultimately required the appeal to be brought up here in our opinion must alone bear the costs
Hearing fee is assessed at Rs 2000
SR Petition allowed


Summary:
Under section 12 3 of the Uttar Pradesh Urban Buildings Regulation of Letting Rent and Eviction Act 1972  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 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   Tenant  ac cording to the definition in clause a of section of 3 the Act in relation to a building means a person by whom its rent is payable and on the tenants  death 1 in the case of a residential building such only of his heirs as normally resided with him in the building at the time of his death 2 in the case of a non residential building his heirs  Under clause g of section 3 of the Act Family  in relation to a land lord or tenant of a building means his or her i sp ii male lineal descendants iii such parents grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a malelineal descendant as may have been normally residing with him or her in and includes in relation to a landlord any family having a legal right of residence in that building One Manzoor Hussain a tenant of the suit premises located at Aligarh died in 1969 leaving behind a widow and three sons Mohd
Azeem the appellant Mohd Naim Mohd Nadeem and a daughter Nauzhat who continued to live in the tenanted premises on payment of rent by the appellant
The Rent Control Inspector submitted a report on June 22 1983 that Naim appellants  brother had built a house in 1978 or 1979 and therefore the tenancy must be deemed to have terminated in view of the provisions contained in section 12 of the Act
The prescribed Authority ordered the eviction in spite of the contest that under section 12 the right to occupy by other heirs continued
The revision before the District Judge failed and the writ petition filed in the High Court of Allahabad was dismissed in limine in view of the Full Bench decision of that High Court in the case of Smt
Rama Devi Shakya and Anr
vs The 907 Additional District Judge Lucknow  Anr 1981 Allahabad Rent Cases 305
Hence the appeal by special leave of the Court
Allowing the petition the Court  HELD 11 When tho Uttar Pradesh Urban Buildings Regulation of Letting Rent and Eviction Act 1972 defines tenant and family reference to personal law is irrelevant and the concept of joint tenancy is foreign Therefore when one of the members of the family built a house or moved into a vacant premises other than the tenanted premises in occupation it cannot be said that there was a deemed cessation of the tenancy and a deemed vacancy occurred of the tenanted premises
12 It is true that the legislative purpose behind section 12 appears to be in keeping with the scheme of the Act making available as much accommodation as possible for allotment to needy persons
That being the purpose the legislature could not have intended to render persons rehabilitated in tenanted premises homeless
13 As the definition of tenant in clause a of section 3 indicates on a tenants  death his heirs as normally resided with him would also be tenants qua residential buildings
The definition does not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy
which heir satisfying the further qualification in section 3 a 1 of the Act in his not right becomes a tenant and coming the section 12 3 of the Act the words the tenant or any member of his family will refer to the heir who has become a tenant under the statutory definition and members of his family
If everyone s interest was to be wiped out section 3 had to provide differently and instead of he shall be deemed to have ceased to occupy the building under his tenancy  as occurring in sub section 3 would have been made to all the tenants in section 12
Family  having been defiled for convenience in the facts of the present appeal qua Naim the definition Would cover Naim s wife his male lineal descendants his mother and those who are covered by clause iii in the definition of family
It would not by any stretching embrace the appellant or his brother Nadeem and the sister
Therefore when Nadeem built a house and shifted to it the tenancy of the appellant and his brother along with their mother and sister did not terminate
Rama Devi Shakya and Anr
vs the Additional District Judge Lucknow  Anr 1981 Allahabad Rent Cases 305 overruled