N. D. Ojba, J. - (1.) THE petitioners are the landlords of an accommodation which they assert to have purchased in the year 1965. THEy made an application in October, 1973 for allotment of the said accommodation in their favour on the allegation that this accommodation had been let out to one Sardar Mal Jain in the year 1956 when the predecessor-in-interest of the petitioners was its owner, that Sardar Mal Jain, who was an employee of the Reserve Bank of India, Agra Branch, shifted from Agra to Delhi in the year 1958 and permitted respondent no. 1 to occupy the said accommodation and that in view of Section 12 (1) (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act 13 of 1972) Sardar Mal Jain will be deemed to have ceased to occupy the accommodation inasmuch as respondent no. 1 was not a member of his family within the meaning of the said term contained in the definition clause in Section 3 (g) of U. P. Act 13 of 1972. THE case of the petitioners was that their need for this accommodation was bona fide and since it was to be deemed to be vacant it may be allotted in their favour.
(2.) THE application was contested by respondent no. 1 inter alia on the ground that one Panna Lal had four sons-Phool Chand, Gulab Chand, Jawahar Lal and Manik Chand, that Sardar Mal Jain was the son of Manik Chand whereas respondent no. 1 was the son of Jawahar Lal and that in the year 1956 when the accommodation in question was allotted to Sardar Mal Jain all the aforesaid persons constituted a joint Hindu family but the allotment order was passed in favour of Sardar Mal Jain inasmuch as he was in the service of the Reserve Bank of India, Agra Branch, at that time. THE case of respondent no. 1 accordingly was that the accommodation in question had never been permitted to be occupied by him by Sardar Mal Jain within the meaning of Section 12 (1) (b) of U. P. Act 13 of 1972. Indeed he had been in occupation thereof from the very inception of the tenancy as a member of the joint Hindu family. He also asserted that the petitioners had sufficient accommodation at their disposal and their need was not at all bona fide. After considering the evidence produced by the parties the Rent Control and Eviction Officer, respondent no. 2, accepted the case of respondent no. 1 and dismissed the application for allotment made by the petitioner. A revision was filed by the petitioners against that order under Section 18 of U. P. Act 13 of 1972 which was dismissed by the Vth Additional District Judge, Agra, respondent no. 3. It is these two orders which are sought to be quashed in the present writ petition. Before dealing with the submissions made by counsel for the petitioners it will be useful to point out the findings recorded by respondent no. 2 on the question as to whether the case was covered by Section 12 (1) (b) of U. P. Act 13 of 1972. It has been held by respondent no. 2 that respondent no. 1 had been occupying the accommodation in question right from 1956 when it was allotted to Sardar Mal Jain as a member of the joint Hindu family. Reference has inter alia been made to relevant extracts of the Nagar Mahapalika, Agra, indicating that even Jawahar Lal, father of respondent no. 1 was recorded as the tenant of the accommodation in question in the tenants' column and after his death the name of respondent no. 1 was recorded as such. Several other documents have been relied on by the Rent Control and Eviction Officer in support of the aforesaid finding. In regard to the bonafide need of the petitioners it has been held that the accommodation at their disposal in house nos. 9/103 and 9/104 was sufficient for their needs. It was urged by counsel for the petitioners that in view of the decision of a Full Bench of this Court in Smt. Keshar Bai v. District Judge, 1980 AWC 385 holding that Section 12 (1) (b) of Act 13 of 1972 was retrospective the impugned orders could not be sustained. Having heard counsel for the parties I find myself unable to agree with this submission. Section 12 (1) (b) reads as follows ;- ******** What clause (b), in my opinion, contemplates is an action of a tenant subsequent to the commencement of the tenancy in allowing the accommodation letout to him or a part thereof to be occupied by a person who is not a member of his family. To me it appears that the said clause does not bring within its sweep even such person who have been occupying an accommodation along with the tenant from the very inception of the tenancy as members of a joint Hindu family and not in their own rights (as) sub-tenants. Section 12 (1) (b) of U. P. Act 13 of 1972 does not contemplate that on the commencement of the said Act the tenant should turn out from the house all such persons who are members of his joint Hindu family but are not included in the restricted definition of the term "family" contained in Section 3 (g) of that Act. The facts of Smt. Keshar Bai's case are given in paragraphs 2 and 3 of the report. They clearly indicate that it was a case where persons who were not continuing to occupy the shops along with the original tenants from the very inception of the tenancy as member of a joint Hindu family were subsequently allowed to occupy the shops.
(3.) IN the instant case as seen above the Rent Control and Eviction Officer has accepted the case of respondent no. 1 that he had been in occupation of the accommodation in question as a member of joint Hindu family along with Sardar Mal Jain right from the inception of the tenancy in 1956 when the said accommodation was allotted in the name of Sardar Mal Jain. It has not been disputed by counsel for the petitioner that the rent of the accommodation in question continued to be paid to the previous owner in the name of Sasdar Mal Jain even after his transfer from Agra to Delhi. Counsel for the petitioners has himself pointed out that after the accommodation was purchased by the petitioners the rent has been deposited under Section 7-C of U. P. Act 3 of 1947 in the name of Sardar Mal Jain. IN view of the findings, referred to above, recorded by the Rent Control and Eviction officer I am of opinion that Section 12(l)(b) of U.P. Act 13 of 1972 is not attracted to the facts of the instant case even though retrospective in its operation as held in Smt. Keshar Bai's case (supra). It was then urged by counsel for the petitioners that the finding that respondent no. 1 had been living in the accommodation in question right from the inception of the tenancy along with Sardar Mal Jain as a member of Joint Hindu Family was erroneous inasmuch as it was based on no evidence. I find myself unable to agree with this submission either. A copy of the affidavit filed by respondent no. 1 before the Rent Control and Eviction Officer has been filed by the petitioners themselves as Annexure 6 to the writ petition. Apart from the fact that respondent no. 1 has substantiated his claim in this behalf in the said affidavit, Annexure A to that affidavit is a writing by Sardar Mal Jain himself dated 9th March, 1974. In this document Sardar Mal Jain has inter alia stated the accommodation in question was let out by Baijnath who was the then owner of the property in 1956 to Sarvasri Phbol Chand, Gulab Chand, Jawahar Lal and Maniit Chand but the accommodation was allotted in favour of Sardar Mal Jain as he was in the service of the Reserve Bank of India, Agra Branch, at that time. He has further stated that he was the son of Manik Chand Jain whereas respondent no. 1 Raj Kumar Jain was the son of Jawahar Lal Jain. A copy of the statement of respondent no. 1 has also been filed as Annexure 8 to the writ petition. In his statement respondent no. 1 has specifically stated that he had been living in the accommodation in question right from 1956 as a member of the joint Hindu family. In view of this clear evidence it cannot be said that the findings of the Rent Gontrol and Eviction Officer are based on no evidence.;