Allahabad High Court
Abdul Malik(Since Deceased) And 11 ... vs Mushtaq Ahmad And 3 Others on 7 December, 2017
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 30 Case :- MATTERS UNDER ARTICLE 227 No. - 8021 of 2017 Petitioner :- Abdul Malik(Since Deceased) And 11 Others Respondent :- Mushtaq Ahmad And 3 Others Counsel for Petitioner :- Atul Dayal,Arvind Srivastava Counsel for Respondent :- Ashish Kumar Singh,Shashank Kumar Hon'ble Vivek Kumar Birla,J.
1. Heard Sri Atul Dayal alongwith Sri Arvind Srivastava, learned counsel for the petitioners and Sri Ashish Kumar Singh, learned counsel appearing for the landlord-respondent.
2. Present petition has been filed for setting aside the judgment and order dated 13.11.2017 passed by Additional District Judge, Court No. 3, Saharanpur in Rent Control Appeal No. 18 of 2011 (Abdul Malik vs. Mushtaq Ahmad) and the order dated 30.5.2011 passed by Prescribed Authority / Judge Small Causes Court, Saharanpur in P.A. Case No. 17 of 1999 (Mushtaq Ahmad vs. Abdul Malik).
3. The release application was filed by the landlords on the ground that they are carrying on tailoring profession from their place of residence only and are having very small earning and therefore, the shops in dispute are required for the purpose of carrying on tailoring business as well as for establishing readymade garments business and the tenant is a person of sufficient means and therefore, he can shift to any other place, whereas the landlords do not have any other place for carrying on their business. The release application was filed by uncle and his nephews for their purposes. The same was contested on the ground that the need is not bonafide and sons of Mushtaq are engaged in different business and occupation and one son of Mushtaq is engaged in tailoring business, which has been established separately and others are engaged in car decoration business and therefore, their need is not bonafide. It was also contended that the defendants-petitioners herein are tenants in the property in dispute since 1965 and they have earned goodwill.
4. It was found by the trial court that sons of applicant no. 1-Mushtaq are also doing tailoring on job work basis and are working with some other persons and the applicant nos. 2 to 4 are engaged in car denting and painting business on temporary basis and it was also found that they have no other place to shift, therefore, need was found to be bonafide. On comparative hardship, it was found that the defendants have not made any effort to search out any alternative remedy for shifting their job / profession and therefore, the issue of comparative hardship as per settled law is not in their favour. Evidence was given by the landlord that one shop belonging to the tenant was in possession. The same was denied by the tenant but it was not clarified that if it does not belong to him then who is the owner of the same. The appeal was filed against the same, which was also rejected.
5. Submission of Sri Atul Dayal, learned counsel for the petitioners is that the provisions of the Act 13 of 1972 (hereinafter referred to as the Act) are not applicable in the present case as the shop is being used for industrial purposes. Referring to Section 2(1)(d) he contends that the kharad machine established by the tenant in the shops in dispute would fall within the meaning of the 'industrial purposes' and therefore, the property in question would be exempted from the operation of the Act and hence, the impugned judgments are without jurisdiction and are liable to be set aside. He had referred to agreement dated 24.3.1998 to submit that heavy machinery business is being carried on by the tenant. He submitted that although this issue was never raised before the courts below, however, question of jurisdiction goes to the root of the case and as such the same can always raised at any stage including the stage of execution. Submission, therefore, is that this question being purely legal in nature, can be raised before this Court. In support of his arguments reliance has been placed by him on the judgments of Hon'ble Apex Court in the cases of Zauri Cement Ltd. vs. Regional Director Employees State Insurance Corporation, Hyderabad and others 2015 (7) SCC 690 (paragraphs 10 to 17), Jagadguru Annadanishwara Maha Swamiji vs. V.C. Allipur and another 2009(4) SCC 625 (paragraphs 12 to 14), and Harshad Chiman Lal Modi vs. DLF Universal and another 2005 (7) SCC 791 (paragraph 27). He next submitted that during appeal one adjoining shop belonging to the landlord had fallen vacant and one Anees is in possession thereof and this fact was brought on record by means of amendment before the appellate court, which was allowed and therefore, the need, if any, of the landlord stands satisfied and consequently, the need of the landlords has vanished, therefore, the appeal was liable to be allowed and the release application is liable to be rejected. Advancing the arguments, it was submitted that the findings recorded on this issue by the courts below that the adjoining shop is still not vacant and Anees is not in possession, whereas son of landlord is still in possession as per the assessment order, is illegal as the assessment order cannot be taken to be a proof of possession. In support of his argument he has placed reliance on the judgments of this Court in the cases of Smt. Kamla Devi vs. IInd ADJ and others 2004 (3) AWC 2341 (paragraphs 12 and 13) and Ganga Narain vs. IInd ADJ and others 1985(1) ARC 166 (paragraph 3). On the issue of bonafide need it was submitted that the plaintiffs are well settled and sons are doing car decorators job and therefore, the shops are not required and issue of bonafide need has wrongly been decided.
6. Per contra, Sri Ashish Kumar Singh, learned counsel for the respondents has drawn attention to the agreement dated 24.3.1998 to contend that the argument of the petitioners that it is a fresh agreement is totally misconceived inasmuch as the tenancy is old and this agreement is only for enhancement of rent and therefore, it cannot be said that mention of the business of heavy machinery is being carried on the shop in dispute would fall within the meaning of 'industrial purposes' as provided in Section 2(1)(d) of the Act and that the same cannot be the ground for seeking exemption from operation of the law insofar as the property in dispute is concerned. It was next submitted that insofar as the adjoining shop no. 3/257, which is stated to be in possession of one Anees is concerned, affidavit of Anees himself was filed, wherein he has categorically stated that he is not in possession of the shop. Apart from that the assessment order of the year 2009-14 regarding the aforesaid shop no. 3/257 was also produced, wherein names of Abdul and Munawwar are mentioned. It was submitted that even if the assessment order is not a conclusive proof of possession, it has corroborative evdenciary value as the evidence given by the tenant was only in nature of affidavit and oral. He further pointed out that it is not in dispute that all the applicants are engaged in tailoring business and they do not have any other place to carry on their business. Insofar as the engagement of two applicants and their sons in car decorations is concerned, it was pointed out that the intention of the landlord is to establish fulfledged tailoring business and for establishing readymade garments and at present some of them are doing car denting-painting work only on temporary basis as there is no place to establish such business.
7. I have considered the rival submissions and have perused the record.
8. During the course of argument both the counsels have taken this Court to various documents and findings recorded by the courts below. Insofar as the question of exemption of the shops in dispute from operation of the Act 13 of 1972 is concerned, it would be relevant to refer to Section 2(1)(d), which is quoted as under:-
"Exemptions from operation of the Act- (1) Nothing in this Act shall apply to the following namely:-
(a) ...
(b) ...
(c) ...
(d) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out alongwith the building:
provided that nothing in this clause shall apply in relation to any shop or other building, situated within the precincts of the cinema or theatre, the tenancy in respect of which has been created separately from the tenancy in respect of the cinema or theatre; or"
(emphasis supplied)
9. On this issue it is well settled that in case the court does not have territorial or pecuniary jurisdiction or jurisdiction over the subject matter, the decree passed would be without jurisdiction. In the present case question of territorial or pecuniary jurisdiction is not involved and learned counsel for the petitioners has submitted that in the present case the court has no jurisdiction over the subject matter as the shop is being used for 'industrial purposes'. There is no quarrel with the law, however, the facts of the case will have to be seen in the present case.
10. Undisputedly only shops were leased out and plant and apparatus installed for such purpose in the building was not leased out alongwith the building.
11. In this regard a reference may be made to a judgment of Hon'ble Apex Court in the case of Satya Narain Pandey vs. State of U.P. and others AIR 1988 SC 676, wherein the effect of the words "is leased out alongwith the building" as given in Section 2(1)(d) of the Act were considered and such words were found to be integral part of section for the purpose of exemption of any building from operation of law. Paragraph 14 whereof is quoted as under:-
14. We may first consider the nature of the exemption conferred by Section 2(1). It takes out of the provisions of the Act certain classes of buildings. Some of these exemptions are based on the nature of the ownership of the property and some of them on the nature of the use to which the property is either put or intended to be put. So far as the former is concerned, there can be no doubt that any building that satisfies the ownership requirements set out therein automatically goes outside the purview of the Act. Thus, under Clauses (a) and (b), even if a building was previously subject to the provisions of the Act, it will cease to be so the moment it is purchased by a Government or a local authority or a public sector corporation or a recognised educational institution. The vesting of the ownership of the premises in one of the categories of bodies mentioned effects a statutory cut off of the building from the applicability of the provisions of the Act. The exclusion of the Act would be automatic and does not need any application by the previous or subsequent landlord or any order by the Additional District Magistrate under any of the provisions of the Act. So far as Clauses (e) and (f) are concerned the exemption depends upon the nature of the use to which the property is put. There is no difficulty in cases where the building, at the time it falls vacant, was actually used for the purposes specified in these clauses: say, as a place of public entertainment or amusement. It would, like the buildings described in Clauses (a) and (b) fall outside the provisions of the Act. So far there is no difficulty. But the exemption conferred by these clauses takes in not only actual user but also intended user; that is, the use to which the property is proposed to be put, whatever may have been the use it was put to earlier. Thus, if a building let out privately earlier, is intended to be used as a place of amusement or entertainment or a Cooperative Society decides to convert a flat let out to an outsider earlier into one for occupation by its own officer, it will stand outside the purview of the Act. Now we come to Clauses (c) & (d) which not only talk of user or intended user but also impose a further requirement that plant and apparatus "is leased out along with the building". This creates a somewhat anomalous situation. It is argued that, if the building had been leased out earlier without the plant and machinery, it would be subject to the provisions of the Act and cannot be leased out without the permission of the District Magistrate; any such lease as may have been purportedly entered into without such permission would be contrary to the provisions of s. 11 and therefore, invalid and illegal. It is argued that where the building is let out wrongfully without an authorisation by the District Magistrate, such letting should be ignored and it cannot be said that the building "is let out" along with plant and machinery. In our opinion this is not the correct interpretation of these clauses. What they exempt are: "a building intended to be used as a factory... where the plant of such factory is leased out along with the building" and a "building intended to be used for any other industrial purpose or a cinema or theatre where the plant and apparatus installed for such purpose in the building is leased out along with the building". Each of these clauses should be read as a whole and doing so, the exemption is not restricted only to cases where there is a prior valid lease of the building with plant and apparatus but would also extend to cases where, though the building earlier was without such plant and apparatus or was not being used for such purposes as are specified, the owner intends to put them to the specified uses by letting them out with the necessary plant and apparatus. The words "is leased", therefore, do not connote the idea of a valid actual subsisting lease of the building with plant on the date of vacancy; they are only descriptive of the manner in which the building is intended to be used. What is needed is (a) that the building should be intended to be used by the prospective tenant, for the purpose specified in either of the clauses and (b) that in order to facilitate the purpose being achieved the building is intended to be let out to him along with necessary plant and apparatus. In our view, therefore, even in respect of a building covered by the Act, the Act will cease to be applicable if, on a vacancy occurring therein, the landlord intends to put it to the use specified in Clauses (c) to (f) and, in cases covered by Clauses (c) and (d), also intends to let it out for such use along with the plant and apparatus necessary therefor.
(emphasis supplied)
12. A reference may also be made to a judgment of this Court in Ganga Prasad Gupta vs. Smt. Saleha Khatoon and others AIR 1978 Ald 507. Paragraphs 8 and 9 are quoted as under:-
8. This provision can be bifurcated into two sentences :
"(i) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods), or as a cinema or theatre.
(ii) where the plant and apparatus installed for such purpose in the building is leased out along with the building."
9. The argument of the learned counsel for the landlord was that as the building alone was taken by the petitioner and not any plant and machinery or other apparatus from the landlord, Clause (d) of Section 2 (1) was inapplicable. According to the submission of the learned counsel for the respondent, the subsequent sentence in the aforesaid provision requiring leasing out of a building along with plant and apparatus applies to any building taken either for industrial purposes or as a cinema or theatre. The submission appears to be well founded. Section 2 (1) (d) laying down the exemption of the buildings can be applied to a case where a building has been taken along with the plant and apparatus. It is not possible to agree with the submission of the learned counsel for the petitioner that the requirement of taking plant and apparatus is applicable to a case where a building is taken for the purposes of running a cinema or theatre. The purpose of this exemption is that the Act will not apply where a building has been leased out along with the plant and apparatus. In such a case, the rights of landlord and tenant would be governed by the general law. But, where, as here, a building alone was taken on lease without any plant or apparatus, the aforesaid clause will not apply. As such, the rights of the parties are to be governed by the provisions of the Act.
(emphasis supplied)
13. Dealing with the same the aforesaid ruling was quoted with approval in a subsequent judgment of this Court in Suresh Chand Sharma vs. Nand Kumar Kamal 2013 (3) ADJ 484. Paragraphs 14 to 18 whereof are quoted as under:-
14. A perusal thereof shows that in a building used or intended to be used for any industrial purpose, if let out alongwith plant and apparatus installed for such purpose, only then the aforesaid provision would be attracted and not otherwise. Proviso to Section 2(1)(d) of Act, 1972 admittedly has no role to play in the present case.
15. The aforesaid provision has been considered by this Court in Ganga Prasad Gupta v. Smt. Saleha Khatoon and others, 1978 ARC 479 and in para 8 and 9 thereof, this Court said:
8. This provision can be bifurcated in to two sentences.
(i) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods), or as a cinema or theatre.
(ii) where the plant and apparatus installed for such purpose in the building is leased out alongwith the building.
9....it is not possible to agree with the submissions of the learned counsel for the petitioner that the requirement of taking plant and apparatus is applicable to a case where a building is taken for the purpose of running a cinema or theatre. The purpose of this exemption is that the act will not apply where a building has been leased out alongwith the plant and apparatus... But, whereas, here a building alone was taken on lease without plant or apparatus, the aforesaid clause will not apply.
16. The aforesaid view was followed subsequently in Smt. Mango Devi v. Prescribed Authority, Aligarh and another, (para 3), Mohd. Yusuf Ali Khan v. M/s. Surendra Trading Co., and Anurag Agrawal v. Upendra Nath Bansal, (para 24 to 26).
17. The authorities cited by Sri Jain, learned Senior Advocate, in support of argument that Section 2(1)(d) of Act, 1972 would be attracted, has no application for the reason that whether a printing press is an industrial purpose or not, need not be looked into in this case, when, admittedly, the building in dispute was not let out alongwith its plant and machinery which is a necessary ingredients to attract Section 2(1)(d) of Act, 1972, and, in absence thereof, Section/provision itself would not be attracted, even if it is assumed that a printing press would satisfy the term "industrial purpose".
18. Looking to the matter in the light of above, I have no manner of doubt that Section 2(1)(d) of Act 1972 does not come to operate in the present case and, therefore, the proceedings cannot be held incompetent. The Courts below have rightly held that property in dispute is within the ambit of Act, 1972 and proceedings initiated by respondent-landlord are valid and competent.
(emphasis supplied)
14. Even otherwise, it is not in dispute that only a kharad machine is installed on the shop in dispute, which is only a turners job and is being carried on a very small basis in a market area and no industrial building is required for that purpose. Turners job at such scale cannot be treated to be industrial in nature or for manufacturing of any industrial purposes. In such view of the matter, the nature of the job itself does not fall within the meaning of industrial purposes.
15. A perusal of the aforesaid judgment quoted above would clearly indicate that in the present case also when undisputed position is that the plant and apparatus was not installed for such purpose and the building was not leased out alongwith any plant and apparatus, Section 2(1)(d) of the Act will not be applicable in the present case and therefore, the jurisdiction of the court below was not barred by the aforesaid provisions. Hence, this Court is of the opinion that the question of lack of jurisdiction on the subject matter does not arise in the present case and as such the rulings as relied on by learned counsel for the petitioners for this purpose are of no consequence.
16. Insofar as the question that the landlords have received possession of the vacant shop no. 3/257 is concerned, the evidence was oath against oath and even Anees, who was alleged to be in possession over the shop, has filed an affidavit that he is not in possession on the aforesaid shop and the same is in possession of Munawwar. A copy of the assessment order was also placed. There is no doubt that the assessment order by itself cannot be taken to proof of possession over the property in dispute, however, when it is a case of oath against oath, it has corroborative evidenciary value and therefore, the finding on this issue recorded by the courts below cannot said to be perverse in nature.
17. Insofar as the other issue regarding bonafide need of the landlord is concerned, concurrent findings have been recorded by the courts below and it has been held that applicant no. 1-Mushtaq is an old person and is doing tailoring job and his son Firoz is also doing the same business and his another son Jalil is also doing tailoring business in some other shop. The tenant could not prove that the applicant no. 1 is carrying on business in some other shop by leading any evidence. It was a categorical case of the landlord that the applicant nos. 2 to 4 are doing car denting and painting work on temporary basis and it was also found that they were not carrying their business on their own premises. The bonafide need was shown for the purpose of establishing tailoring and readymade garments job.
18. In such view of the matter, when the family of the landlord is large and they are engaged in tailoring work or other job, they are entitled to set their own permanent business and for this purpose bonafide need cannot be disputed. It is also not in dispute that the landlord has no other place to settle. Hence, the findings on this issue need no interference by this Court.
19. Insofar as question of comparative hardship is concerned, there was no cogent evidence that the petitioners have ever made any serious effort to search out any alternative accommodation during all this period. The release application was filed in the year 1999 and nothing worth name has come on record to indicate that any serious effort to search out any alternative shop was made by the tenants. One of the shop that was alleged to be in possession of the tenant was though denied by them however, nothing to indicate that the same belong to any other person was brought on record by the tenant, hence the findings on comparative hardship cannot be said to be perverse. As per Suresh Chand Sharma (supra) long duration of occupation by itself cannot be the ground for tilting issue of comparative hardship in favour of the tenant.
20. In such view of the matter, I do not find any legal infirmity or jurisdictional error in the orders impugned herein. Present petition is devoid of merits and is accordingly dismissed.
21. At this stage, learned counsel for the tenant-petitioner prays that some time may be granted for vacating the house/shop in dispute.
21. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.5.2018.
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;
(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;
(4) The tenant-petitioner shall pay damages @ Rs. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.5.2018 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
No order as to costs.
Order Date :- 7.12.2017 Lalit Shukla