Reserved Order IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 491 of 2011 Pankaj Gupta S/O Jitendra Kumar Gupta. … Petitioner. Versus Prescribed Authority/Civil Judge (S.D.) Rishikesh and 3 others. … Respondents. Mr. Siddhartha Singh, Advocate, learned counsel for the petitioner. Mr. P.C.Bisht, Brief Holder, learned counsel for the respondent no.1. Mr. Sharad Sharma, Senior Advocate with Mr. Piyush Garg, Advocate, learned counsel for the respondent nos. 2 to 4. Date May 11, 2011. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 9-3-2011 (Annexure No.1) passed by respondent no.1 in P.A.Case No. 7 of 2010 Suraj Prakash Gulati Vs. Jitendra Kumar and further to allow the impleadment application of the petitioner with opportunity to contest the case. By the order dated 9-3-2011 the application (paper no. 17-C) moved by the petitioner-applicant for his impleadment as party to the proceeding has been rejected. 2. Brief facts giving rise to the present writ petition are that the respondents no. 2 and 3 herein filed a release application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (for short the Act) against the respondent no.4-Jitendra Kumar Gupta for release of the residential accommodation on the ground of bona fide need alleging therein that respondent nos. 2 and 3 have become owner and landlord of the accommodation through a registered sale deed dated 12-4-2007 and the respondent no. 4 is a tenant therein. 3. The petitioner-applicant moved an application paper no. 17-C under Section 34 of the Act read with Order 1, Rule 10 C.P.C. contending therein that the accommodation in question in 2 respect of which release application has been moved continues under the tenancy of his grandfather late Kashinath Gupta since 1938 and the applicant has been a member of the family since the lifetime of his grandfather from 1968. After the death of his grandfather in the year 1971, the tenancy devolved in the Karta of the joint family, i.e. his father Jitendra Kumar Gupta. The accommodation in question is a part of Dharamshala, which is in occupation and tenancy of the applicant and that the applicant- petitioner is the legal heir of late Kashinath. It is also alleged that the landlords have concealed true facts in collusion with the tenant Jitendra Kumar Gupta so as to grab the accommodation, which is in the tenancy of the present applicant-petitioner. 4. No written objection was filed against the application, paper no. 17-C. 5. Learned Prescribed Authority after hearing both the parties has ultimately rejected the application vide order dated 9-3- 2011 holding that the tenancy has been devolved on the father of the petitioner, who is alive and there is entry in the municipal records showing Jitendra Kumar to be tenant in the accommodation in question. 6. Aggrieved by order dated 9-3-2011 passed by the Prescribed Authority, the petitioner-applicant has preferred the present writ petition mainly on the ground that the release application has been moved by the landlords in collusion with the respondent no.4-tenant and that the landlords-respondent nos. 2 and 3 and respondent no.4-tenant are hand in gloves. According to the petitioner, he is covered under the definition of ‘family’ given under the Act and that the petitioner is in physical occupation of the accommodation in question and has been living in the capacity of joint tenant. 3 7. I have heard learned counsel for the parties and perused the record including the application (paper no. 17-C) moved by the petitioner for impleadment and the impugned order passed thereon. 8. A bare perusal of the application moved by the petitioner before the Prescribed Authority goes to show that in paragraph no. 5 it has been categorically stated that the landlords- respondent nos. 2 and 3 herein have moved the release application by concealing true facts in collusion with the alleged tenant Jitendra Kumar Gupta. It is pertinent to note that the landlords have not filed written objection against the application (paper no. 17-C). 9. The short controversy to be resolved in the present writ petition is whether the application for impleadment moved during the pendency of the application containing specific pleading of collusion between the landlords and tenant-respondent no.4 is liable to be allowed. 10. Learned counsel for the petitioner has vehemently argued that the learned Prescribed Authority has committed a manifest error law by rejecting the application for impleadment particularly when the application had been moved during the pendency of the release application and the applicant-petitioner has categorically mentioned that the landlords are in collusion with the respondent no.4-Jitendra Kumar Gupta. In support of his argument, the learned counsel for the petitioner has placed reliance upon the verdict of the Allahabad High Court in the case of Chandan Rai Garg Vs. Prescribed Authority and others [2010(1) ARC, Page 166] wherein in paragraph no.8 the following observations have been made:- “8. I have considered the submissions made on behalf of petitioner and have perused the judgements cited by learned Counsel for petitioner. This Court has taken a view that in such circumstances if during pendency of application or suit, an 4 application is filed by one of the heir, then he is entitled to be impleaded as a party. Under the general law after the death of his heirs inherit the tenancy even under U.P. Act No. 13 of 1972, in case of non-residential building all the heirs of the tenant inherit the tenancy by virtue of the definition of tenant given under section 3(a) of the Act. In AIR 1995 Supreme Court, 676 and AIR 2001 Supreme Court, 2251, it has been held that after death of tenant, all his heirs inherited the tenancy jointly and decree passed against one or some of them is binding on non-implemented joint tenants also. However, this doctrine cannot be pressed into service when during pendency of suit, a person claiming to be applies for impleadment. In Textiles Association (India) (supra), the Apex Court while considering the claim of a joint tenant who inherited the tenancy, on his application, set aside the decree and directed that petitioner should be implemented as a party to that suit and it should proceed on merits. This was a case in which the building in dispute was a residential. It was not a non-residential building.” 11. On the other hand, the learned counsel for the contesting respondents while supporting the order impugned has submitted that the learned Prescribed Authority has rightly rejected the application in view of the law laid down by this Court in the case of Smt. Mridula Chaube and another Vs. Smt. Sushila Mittal and another [2010(1)U.D., 69]. This Court while considering the impleadment application in paragraph no. 16 has observed as under:- “16. Learned counsel for the petitioners has contended that the respondent no. 1 filed the civil suit for ejectment of respondent no.2 in collusion with the defendant-respondent no.2. This argument of the learned counsel for the petitioners is not tenable for the simple reason that no such pleading had been taken by the petitioners in their application under Order 1, Rule 10(2) read with Section 151 C.P.C. (copy Annexure-4 to the petition) that the suit has been filed by the plaintiff in collusion with the defendant-respondent no.2, rather they have contended that they are 5 joint-tenants. They have specifically stated in para 7 that they are residing out of Dehradun.” 12. This case law does not help the respondents at all because in the case at hand, the petitioner has come up with a positive case that he has been occupying the accommodation in question as joint tenant and that the landlords are in collusion with the respondent no.4-Jitendra Kumar Gupta, as mentioned in paragraph no.5 of the application for impleadment. Moreover, the application for impleadment has been made during the pendency of the application. 13. Learned counsel for the respondents have further placed reliance on the verdict of this Court in the case of Pankaj Bhatt Vs. Prescribed Authority and others [2007(2) U.D., Page 384]. It would suffice to mention here in that case collusion was not pleaded by the petitioner, whereas in the case at hand there is specific allegation of the petitioner that the landlords are in collusion with the respondent no.4 and they have concealed true facts. The case of Pankaj Bhatt (supra) is quite distinguishable. 14. In view of the discussion made above, it is evident that in the present case, the petitioner has taken a positive stand that he has been living and occupying in the accommodation in question since the lifetime of the original tenant-his grandfather late Kashi Nath Gupta and as such he is a joint tenant and that the release application has been moved in collusion with the tenant and the landlords. In this view of the matter, the learned Prescribed Authority ought not to have rejected the impleadment application moved by the petitioner (paper no. 17-C). In my view, the application moved by the petitioner for his impleadment deserves to be allowed. I am fortified in my view by the judgment of the Allahabad High Court in the case of Chandan Rai Garg (supra). Consequently, the writ petition deserves to be allowed. 6 15. The writ petition is allowed with no order as to costs. The impugned order dated 9-3-2011 passed by the Prescribed Authority is set aside. The application for impleadment moved by the petitioner before the Prescribed Authority (paper no. 17-C) stands allowed. The petitioner shall be allowed to be impleaded as opposite party no. 2 to the proceeding (P.A. Case No. 7 of 2010). 16. The Prescribed Authority shall proceed further in the matter in accordance with law after affording adequate opportunity of adducing evidence and hearing to all the parties. (B.S.Verma, J.) RCP