JUDGMENT Yatindra Singh, J.
1. This is tenant's writ petition against the orders dated 12.4.1994, 18.7.1995 and 2.8.1995 declaring vacancy and releasing the premises in favour of the landlord respondent Nos. 3 and 4. We are concerned with only that part of judgment, which relates to the declaration of vacancy. In the event that order falls, the release order will automatically go and in case that order is upheld, no objection against the release can be taken by the petitioner.
FACTS
2. The premises in dispute is a residential premises in which Madan Gopal Maheshwari (the tenant for short) was a tenant at the rate of Rs. 85 per month. He has got eight sons and two daughters. According to him, his two sons and two widowed daughters arc residing with him. The present proceeding started on the application filed by the landlord on 29.5.1994. According to the landlord. Mad an Gopal Maheshwari along with his five sons have constructed the house Nos. 1098 and 1099 Bert Pada Lal Darwaja. Mathura and as such, the premises in dispute has become vacant. The Rent Control and Eviction Officer (respondent No. 2) got it inspected. The Inspector submitted his report on 11.4.1995. This was behind the back of the tenant. The respondent No. 2 declared it vacant by his order dated 12.4.1994. The tenant filed an objection. Respondent No. 2 considered the evidence on record and by his order dated 18.7.1995 has held that-
(i) Madan Gopal Maheshwari along with his sons have constructed the house at 1098 and 1099 Beri Pada Lal Darwaja. Mathura and is residing therein.
(ii) In any case his sons at least have constructed the house. They are members of his family.
(iii) The premises in dispute has fallen vacant under Section 12 (3) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act for short).
dismissed the objection filed by Madan Gopal Maheshwari and released the premises on the bona fide need of the landlord. The petitioner filed a revision against this order.
This was dismissed on 2.8.1995 as non maintainable.
3. Madan Gopal Maheshwari died during the pendency of present writ petition and in his place, all his heirs have been impleaded as petitioners. It is admitted by the counsel of the petitioner that out of his heirs, only two sons and two widowed daughters were living with him in the premises in dispute. It is residential accommodation. It is only they who will be entitled to prosecute the case.
POINTS FOR DETERMINATION
4. I have heard counsel for the parties. Following points arise for determination in this case.
(i) It is admitted that sons of Madan Gopal Maheshwari have constructed house. Can the premises be declared vacant only on the finding that sons have constructed a house?
(ii) Has Madan Gopal Maheshwari constructed the house at 1098 and 1099 along with his five sons?
(iii) Madan Gopal Maheshwari died during pendency of the writ petition. Can it be taken into account? Should the vacancy be seen with regard to two widowed daughters and two sons?
(iv) Whether reasonable opportunity has been given to the tenant?
1ST POINT--IS CONSTRUCTION OF A HOUSE BY SON SUFFICIENT?
5. Section 12 of the Act deals with deemed vacancy in the building in certain cases. A building is vacant if a tenant ceases to occupy the same. Section 12 (1) (a) says that a tenant ceases to occupy a building if he has substantially removed his effects from the building. Section 12 (3) of the Act raises a legal fiction. It states that there will be deemed vacancy if the tenant or his family member acquires a residential building in the same local area. The sons have constructed a house. The landlord says there is deemed vacancy under Section 12 (3) of the Act. But are they members of tenant's family?
6. The word 'family' is defined under Section 3 (g) of the Act. It Includes male lineal descendent, i.e., son. But definition clause begins with 'In this Act, unless context otherwise requires', i.e., to say, normally the word "family" in the Act will include sons unless there is something else in the context. In the present case, there is an Explanation to Section 12 (3) of the Act, Explanation (b) says a person cannot be family member of a tenant for the purposes of Section 12 (3) unless he has been normally residing with the tenant or wholly dependent on him. There is no finding that sons who have constructed the house were normally residing with Madan Gopal Maheshwari or were dependent on him. Without this finding, it cannot be held that the sons who have constructed the house are the members of tenant's family within the meaning of Section 12 (3) of the Act.
7. It is true that Section 12 (3) contains a legal fiction, it must be given effect to and it ought to be taken to its logical conclusion. There is no dispute with this proposition but then as Justice Homes has said fiction always is a poor ground for changing substantial rights'. The fiction cannot be given effect to or taken to its logical conclusion unless the conditions mentioned for giving effect to are satisfied. The legal fiction will come into when the conditions mentioned therein are satisfied. The house must have been constructed by the member of the family who has either been residing with the tenant or wholly dependent on such tenant. There is no finding that sons who have constructed the house were residing with the tenant or were wholly dependent upon him. The legal fiction does not come to life.
2ND POINT--HAS MADAN GOPAL MAHESHWARI CONSTRUCTED THE HOUSE?
8. The respondent No. 2 has held that Madan Copal Maheshwari along with his sons have constructed a house and he is residing therein. This was held on the ground that :
(i) Even in the voter's list, the name of the petitioner-tenant is recorded from Maheshwari House.
(ii) Sri Subhash Chand (the landlord) has stated that Sri Madan Gopal Maheshwari (the tenant) and his sons have constructed the house ; this has not been denied by Sri Madan Gopal Maheshwari in clear terms.
(iii) Name plate in front of the house appears with the names of the petitioner and his five sons.
(iv) Funeral procession of wife of Sri Madan Gopal Maheshwari was taken out from the aforesaid house, namely. 'Maheshwari House' and marriages and other functions used to be held from the aforesaid house.
Voter List
9. The order sheet indicates that on 11.7.1995 affidavit and certain documents were filed. It was mentioned, if it is necessary, it will be heard and time was granted to give written submission before 18.7.1995 and the case was listed for orders on 18.7.1995. The order dated 18.7.1995 records that these documents were taken on record though the landlord has not been given any opportunity. These documents are Voter List, ration card, municipal receipts, etc. (Annexures-1 to 8 to the writ petition). In these documents it is mentioned that the petitioner is residing in the premises in dispute. These documents were taken on record, but have not been considered while passing the impugned order. If there was a voter list showing the name of Madan Gopal Maheshwari residing at place where his sons have constructed a house, then there is also a voter list showing that Madan Gopal Maheshwari was living in the premises in dispute. These documents should have been considered by the respondent No. 2. The finding given by Rent Control and Eviction Officer is vitiated on this account.
Was Affidavit of Subhash Chand Denied?
10. Subhash Chand had stated that Madan Gopal Maheshwari has constructed a house. According to respondent No. 2, this has not been denied by Madan Gopal Maheshwari in clear terms. It is true that there is no affidavit of Madan Gopal Maheshwari but there is an affidavit of son of Madan Gopal Maheshwari to show that Madan Gopal Maheshwari is nothing to do with the house, it was constructed by the sons alone and no contribution was made by their father Madan Gopal Maheshwari. This affidavit should have been considered into by the respondent No. 2.
Name Plate In Front of House
11. Madan Gopal Maheshwari was a Freedom Fighter and well-known person of Mathura. His sons have constructed a house and have mentioned his name in the name plate. There is no evidence on record to show that the land over which the house was constructed has been purchased in the name of Madan Gopal Maheshwari or he has purchased the same in the name of his son. There is also nothing on the record to show that the name of Madan Gopal Maheshwari was recorded in the records of the local body. In absence of the same, the fact that sons have mentioned the name of their eminent father, who was a Freedom Fighter, is not sufficient relevant to hold that Madan Gopal Maheshwari had constructed the house.
Funeral Procession and Marriages, Etc.
12. Funeral procession is taken out and marriages are held at a place.
which is convenient. One of the sons of Madar Gopal Maheshwari is a doctor. If the funeral procession was taken from the house or the marriages and other functions are held from the house for the sake of convenience, it cannot mean that house was constructed by Madan Gopal Maheshwari. Funeral procession can always start from the house of the son and the marriage can always take place from the house of the brother. The fact it has been done so, it does not lead to the conclusion that house was constructed by Madan Gopal Maheshwari.
13. The finding given by respondent No. 2 that Madan Gopal Maheshwari has constructed the house is without considering the material and evidence filed by the petitioner. It is also not relevant in holding that Madan Gopal Maheshwari, has constructed the house and the judgment and order of the respondent No. 2 holding vacancy on the ground that Madan Gopal Maheshwari has constructed the house along with his son is liable to be set aside.
3RD POINT-SUBSEQUENT EVENTS-DEATH OF MADAN GOPAL MAHESHWARI
14. Madan Gopal Maheshwari died during the pendency of writ petition. According to the counsel for the petitioner, his two sons and two widowed daughters are living with him. They have become tenant. They are not the family members of those who have constructed the house. The premises now cannot be declared to be vacant. The counsel for the parties have also cited few decisions' to show if the subsequent events during the pendency of writ petition can be taken into account. These decisions are given in the proceedings considering the release of premises against a sitting tenant for personal need under Section 21 of the Act. In these proceedings, a premises is released on the ground of personal need of the landlord after comparing hardship with a tenant. Subsequent events may be looked into in these proceedings the need of the landlord may be no more. This may be till proceedings are pending and not when original proceeding under Article 226/227 are undertaken. This is not a question here. In appropriate case, this may be decided in the light of the rulings cited. But this petition is not against an order in proceeding for release under Section 21 of the Act. It is against an order in proceedings under Chapter III of the Act for declaration of vacancy. If a vacancy has arisen under Section 12 of the Act, it cannot be cured by the subsequent events. The question whether vacancy has arisen or not has to be seen with reference to the date when the event mentioned in that section has happened. The subsequent events in these proceedings cannot be looked into.
4TH POINT--REASONABLE OPPORTUNITY
15. I have already held that order of respondent No. 2 declaring vacancy is not legal and is liable to be set aside. It is not necessary to decide this question. However, as the matter is being remanded both parties may file any affidavit or evidence before respondent No. 2.
CONCLUSION
16. In the circumstances of the case the writ petition is allowed. The case is remanded back to the respondent No. 2 (Rent Control and Eviction Officer) to reconsider the question of vacancy. He would decide this question in the light of the following points :
(a) Whether Madan Gopal Maheshwari had removed his effects from the building?
(b) Whether Madan Gopal Maheshwari had constructed the house along with his sons? In considering this point he may also consider the documents of the local body to show in whose name the house is recorded or in whose name the sale deed or other documents exist.
(c) If the house has been constructed only by the sons, then whether those sons were normally residing with Mad an Gopal Maheshwari or dependant upon him?
The parties shall appear before the Rent Control and Eviction Officer on 7th June. 1999.