K. N. Misra, J. - (1.) NOTICE was ordered to be issued to opposite parties No. 1 and 2 by this Court vide order dated 9th March, 1984 to show cause why the petition should not be admitted. NOTICE on behalf of opposite party no. 3 was accepted by the Chief Standing Counsel. In the notice which was issued to opposite parties No. 1 and 2 it was ordered to be indicated that the writ petition itself is likely to be disposed of on 5-4-1984. Office report indicates that notice on opposite parties no. 1 and 2 is deemed sufficient. I, therefore, proceed to hear and dispose of this writ petition on merits.
(2.) I have heard learned counsel for the petitioner Sri G. K. Mehrotra at some length and have perused the impugned order passed by District Magistrate, Faizabad. I have also gone through the averments contained in the writ petition. The Rent Control and Eviction Officer vide order dated 16-3-1983 has held that the premises in question (house No. 1234 (old) and New No. 1.13-201, Civil Lines, Faizabad) had fallen vacant on account of death of sitting tenant Gur Prasad and his wife and, thus, considered the application for release of the petitioner on merits. He ordered release of their premises in question in favour of petitioner Srimati Kiran Tewari, wife of J. N. Tewari. It may be mentioned here that Sri J. N. Tewari was in employment in Central Civil Secretariat and he retired as Chief Executive Officer and Jonit Secretary, Department of Statistics, Ministry of Planning, Government of India. He is said to have retired on 31-7-1983 and is occupying the premises which were in his possession as a Government servant at Delhi. Learned counsel for the petitioner urged that since a long time has passed, Sri J. N. Tewari is required under the rules to immediately vacate the premises. He has referred to Annexure No. 10 which -is order dated 22-2-1984 passed by Assistant Director of Estates, Ministry of Works and Housing Directorate of Estate, giving permission to Sri J. N. Tewari to retain premises upto 31st March, 1984 and not beyond that date. In respect of the premises in question, one Afser Ahmad, a local resident of district Faizabad had also applied for allotment of those premises alleging that the premises had fallen vacant. The Rent Control and Eviction Officer, vide aforesaid order dated 16-3-1983 released the premises in favour of the landlady-applicant.
(3.) THE application for release was contested by opposite party no. 1 Kailashendra Prasad urging that he is son of late Gur Prasad. It was also mentioned by him that Srimati Uma Devi, opposite -party no. 2 is his sister and heir and successor of late Gur Prasad. Besides opposite party nos. 1 and 2, it was further asserted that two more brothers of opposite party no. 1 were also heirs and successors of the deceased-tenant who were residing with the deceased-tenant at the time of her death and with these allegations the application for release was contested by opposite party no. 1 and he prayed that the premises cannot be declared to be vacant. THE Rent Control and Eviction Officer, Faizabad, however, allowed the application for release of the petitioner by holding that the premises were deemed to be vacant and released the premises in question in favour of the applicant rejecting the contention of the heirs of deceased tenant. It would be relevant to mention that on 9-1-1983 the Rent Control and Eviction Officer had declared the premises to be vacant and the objection of the said heirs of the deceased tenant were considered and disposed of on 2nd March, 1983. THE application for release was considered thereafter, and the Rent Control and Eviction Officer had passed order of release after hearing both the parties. Aggrieved by said order, opposite parties no. 1 and 2 preferred revision before the District Judge, Faizabad, which was heard and disposed of by him vide order dated 18-1-1984 and setting aside the order passed by the Rent Control and Eviction Officer, the case was remanded back for deciding it afresh on merits according to law and in the light of observation made in the order. THE petitioner, aggrieved by this order dated 18-1-1984 (Annexure No. 1) preferred this petition which has gome up for hearing before me today as mentioned above. I have heard learned counsel Sri G. K. Mehrotra at some length who urged that the learned District Judge has not adverted himself to the vital question as to whether the deceased-tenant left any heir as is contemplated by Section 3 (a) (1) which reads as under 5 " (a) "tenant" in relation to a building means a person by whom its rent is payable, and on the tenant's death (1) in case of residential buildings such only of his heirs as normally resides with him in the building at the time of his death. (2) in case of a non-residential building his heirs : (Emphasis supplied);