Case: GEETA GUPTA Vs. RAMESH CHANDRA DWIVEDI &amp; ORS

(1) of Section 12 incorporates the concept of deemed vacancy of the building in certain cases. Under clause (b) of sub-section (1) of Section 12, a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family. Sub-section (2) of Section 12 lays down that in case of non-residential buildings, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner, the tenant shall be deemed to have ceased to occupy the building. Sub-Section (4) of Section 12 of the said Act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub-sections (1) or (2) of Section 12 shall be deemed to be vacant. 10. Under clause (a) of sub-section (1) of Section 16 of the said Act, the District Magistrate is empowered to require any landlord to let any building which has fallen vacant to any person specified in the order. 11. Section 14 of the said Act is material which is thus: 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]. Under Section 14, a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment Act), 1976 shall be deemed to an authorised tenant. The date of commencement of the Amendment Act is 5th July, 1976. 12. The first respondent relied upon the agreement dated 15th November, 1975 purportedly executed by the said Dhruv Narayan Tripathi claiming to be the power of attorney holder and manager of the original owners. The first respondent is the second party to the said Agreement on whom tenancy in respect of the disputed premises was conferred. The finding of fact recorded by the Addl. City Magistrate is that the original owners never denied that the said Dhruv Narayan Tripathi was their attorney or manager and that the original owners neither served any notice nor filed a suit for eviction. In the counter, the first respondent has relied upon the said agreement at Annexure R-4 in paragraph 5. In the rejoinder, the appellant alleged that the said document was fabricated. However, the petitioner has not produced on record anything to show that from 1975 to 1994, the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975. Thus, the first respondent was inducted in possession as a tenant prior to 5th July, 1976. The finding recorded by the Addl. City Magistrate is that to the presence of the first respondent, the predecessors-in-title, of the appellant had never raised any objection right from the year 1975. Therefore, the Addl. City Magistrate concluded that in absence of the evidence of predecessors-in-title of the appellant, it is very difficult to accept that right from the year 1975, the first respondent continued to be in possession without the consent of the original owners. There is nothing wrong about this inference drawn by the Addl. Magistrate that the first respondent was inducted with the consent of the predecessors-in-title of the appellant. We find no error in the said view taken by the Addl. City Magistrate and confirmed by the High Court. 13. As the first respondent was a tenant in possession on 5 th July, 1976 with the consent of the original owners, he shall be deemed to be a tenant by virtue of Section 14 of the said Act. 14. Therefore, there is no reason to find fault with the Order of the Addl. City Magistrate. By virtue of Section 14, the first respondent gets the protection as a tenant under the said Act. Therefore, if the appellant wants the first respondent to be evicted, she will have to take recourse to section 20 of the said Act. Depending upon the circumstances, she has also an option to take recourse to section 21 of the said Act. 15. We have carefully perused the decisions relied upon by the appellant. The decision in the case of Achal Misra (supra) holds that an order notifying vacancy under section 12 of the said Act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said Act. Even the decision in the case of Harish Tandon (supra) has no bearing on the controversy in this appeal. Lastly, the decision in the case of Ram Murti Devi (supra) does not deal with the issue involved. It deals with the issue of unlawful subletting. None of these decisions have any application to the facts of this case. 16. Though there is no merit in the appeal, it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises. In the objections filed by the first respondent, he has specifically taken a stand that the first respondent has filed Misc. Case No. 284/70/04 in the Court of Civil Judge, (Junior Division) at Kanpur Nagar under sub-section (1) of Section 30 of the said Act. The learned counsel appearing for first respondent claimed that the entire amount of rent has been deposited in the said case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. We have carefully considered the submissions. We have perused the material on record, as well as the provisions of the said Act. Sub-section (1) of Section 12 incorporates the concept of deemed vacancy of the building in certain cases. Under clause (b) of sub-section (1) of Section 12, a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family. Sub-section (2) of Section 12 lays down that in case of non-residential buildings, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner, the tenant shall be deemed to have ceased to occupy the building. Sub-Section (4) of Section 12 of the said Act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub-sections (1) or (2) of Section 12 shall be deemed to be vacant.However, the petitioner has not produced on record anything to show that from 1975 to 1994, the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975. Thus, the first respondent was inducted in possession as a tenant prior to 5th July, 1976. The finding recorded by the Addl. City Magistrate is that to the presence of the first respondent, the predecessors-in-title, of the appellant had never raised any objection right from the year 1975. Therefore, the Addl. City Magistrate concluded that in absence of the evidence of predecessors-in-title of the appellant, it is very difficult to accept that right from the year 1975, the first respondent continued to be in possession without the consent of the original owners. There is nothing wrong about this inference drawn by the Addl. Magistrate that the first respondent was inducted with the consent of the predecessors-in-title of the appellant. We find no error in the said view taken by the Addl. City Magistrate and confirmed by the High Court.13. As the first respondent was a tenant in possession on 5 th July, 1976 with the consent of the original owners, he shall be deemed to be a tenant by virtue of Section 14 of the said Act.14. Therefore, there is no reason to find fault with the Order of the Addl. City Magistrate. By virtue of Section 14, the first respondent gets the protection as a tenant under the said Act. Therefore, if the appellant wants the first respondent to be evicted, she will have to take recourse to section 20 of the said Act. Depending upon the circumstances, she has also an option to take recourse to section 21 of the said Act.15. We have carefully perused the decisions relied upon by the appellant. The decision in the case of Achal Misra (supra) holds that an order notifying vacancy under section 12 of the said Act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said Act. Even the decision in the case of Harish Tandon (supra) has no bearing on the controversy in this appeal. Lastly, the decision in the case of Ram Murti Devi (supra) does not deal with the issue involved. It deals with the issue of unlawful subletting. None of these decisions have any application to the facts of this case.16. Though there is no merit in the appeal, it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises.