- (1.) RAJESH Tandon, J. The present writ petition under Article 226 of the Constitution of India has been filed by the petitioner challenging order dated 21-9-2001 by which application filed by the respondent No. 1 substituting the heirs of Narain Singh has been allowed. The brief facts giving rise to the present writ petition are that an application under Section 21 (1) (a) was filed on 20-8-1993 by Sri Narain Singh praying for release of accommodation i. e. shop No. 2 Mohan Niwas Malli Bazar, Bhawali, District Nainital in his favour. In para 4 of his application Sri Narain Singh has described family members of his family as under: (1) Appellant self, (2) Smt. Narain Singh (wife), (3) Mohan Singh (son), (4) Smt. Mohan Singh (daughter in law), (5) Master Kirti Bardhan (grandson), (6) Gaurav Bardhan (grandson), (7) Yas Bardhan (grandson), (8) Diwan Singh (brother), (9) Pratap Singh (nephew), (10) Smt. Pratap Singh (wife of the nephew), (11) Lalit Singh (grandson), (12) Balbahadur (grandson ).
(2.) IN paragraph 5 of the application, the landlord Narain Singh has state that he wants to establish his own business as well as the business of his grand sons. Further in paragraph 8 of the application, it has been specifically stated that the shop is required for the family members of the landlord. During the pendency of the application Narain Singh died on 28-12-1999 and as such on 12-1-2001 Mohan Singh has filed an application under Rule 25 of U. P. Act XIII of 1972 Paper No. 141-C supported by Affidavit 142-C, stating therein that he is the sole legal representative of deceased Narain Singh. The application was replied by the petitioner stating therein that Mohan Singh is not legal representative and in fact he is nephew of Narain Singh. The objection is Paper No. 144-C supported by Affidavit 145-C. Rejoinder affidavit was also filed by Sri Mohan Singh stating therein that after the death of Narain Singh he is the only legal representative as he is the adopted son of Narain Singh. According to the pleadings of the parties adoption had taken place on 6-5-1955 and since then there is relationship of father and son between Narain Singh and Mohan Singh and further Narain Singh has treated Mohan Singh as his son and also gave him education at his residence. The Prescribed Authority vide his order dated 21-9-2001 has allowed the application and substituted Mohan Singh in place of deceased Narain Singh. The present writ petition has been filed challenging the order dated 21-9-2001 allowing the application under Rule 25 of U. P. Act, XIII of 1972. Heard Sri B. C. Pandey, Advocate on behalf of the petitioner and Sri G. S. Bisht on behalf of respondent landlord at great length.
(3.) IT has been vehemently argued by Sri B. C. Pandey inter alia that the order dated 21-9-2001 allowing the application under Rule 25 is completely without jurisdiction; the application under Section 21 (1) (a) has become infructuous after the death of Narain Singh in view of Clause (7) of Section 21 of the Act; the cause of action, therefore, has already perished after the death of Narain Singh; Mohan Singh is not the legal heir of Narain Singh so as to get himself substituted under the provisions of family member as defined under the Act. According to Sri B. C. Pandey Section 21 (7) provides that the heirs have to establish their own requirements in order to succeed under Section 21 (1) (a) of U. P. Act XIII of 1972. It may be pointed out that sub-section (7) of Section 21 was introduced by inserting U. P. Act No. 28 of 1997 with effect from 5- 7-1997. The same is quoted below: " (7) Where during the pendency of an application under Clause (a) of sub-section (1), the landlord died, his legal representative shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased. ";