- (1.) Heard Sri Zafar Naiyer, learned Senior Advocate assisted by Sri Somesh Khare, learned counsel for the petitioners and Sri A.N. Sinha, Sri M.K. Gupta and Sri Virendra Kumar, Advocates for respondents.
(2.) Sri Zafar Naiyer, Senior Advocate primarily raised an issue that main allottee namely, Sri Mohammd Nasir who was allotted premises in dispute by Rent Control and Eviction Officer's (hereinafter referred to as the "RCEO") order dated 15.05.1989 had died on 25.06.2002 and admittedly till that date or even till this date, possession was not handed over to aforesaid allottee, in these circumstances, the legal heirs of allottee, merely on the basis of allotment, will not be entitled to claim possession of property in dispute since they cannot be said to be tenant(s) of premises in dispute in view of definition of "tenant" under Section 3(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"). Therefore, the allotment letter has become inoperative and of no legal consequence after the death of allottee himself. In support of above submissions he placed reliance on this Court's decision in Satish Chandra Seth Vs. The District Judge Kanpur and others,1978 ARC 326 and Sardar Vichattar Singh Vs. IIIrd Addl. District Judge, Kanpur and others,1984 2 ARC 284.
(3.) On the contrary, the respondents stated that once order of declaring vacancy and allotment has attained finality, its effect cannot be ceased or made futile by petitioners or any other occupants simply by keeping the allottee out of possession of allotted accommodation and that too by taking recourse of ex parte order passed by this Court, in present writ petition, wherein they have not disclosed full and correct facts and also are guilty of concealment of material facts. They further submitted that an allottee is treated to be a tenant from the date of allotment and that being so on his death, his legal heirs are entitled to be treated tenant. They also submitted that legal heirs are entitled for substitution in any of the proceedings under Act, 1972 vide Rule 25 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972) and also placed reliance on Apex Court's decision in Achal Misra Vs. Rama Shanker Singh and others, 2005 1 ARC 877.;