Allahabad High Court
Dilpreet Singh & 3 Others vs Special Judge / Addl.District ... on 5 August, 2019
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on : 27.02.2019 Delivered on: 05.08.2019 Court No. - 24 Case :- RENT CONTROL No. - 8245 of 2017 Petitioner :- Dilpreet Singh & 3 Others Respondent :- Special Judge / Addl.District Judge,Lakhimpur Kheri & 8 Ors. Counsel for Petitioner :- Mohammad Aslam Khan Counsel for Respondent :- Vivek Manishi Shukla,Ashish Tripathi,Shishir Chandra Hon'ble Irshad Ali,J.
1) Heard Sri M.A. Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan, learned counsel for the petitioners and to Sri Ashish Tripathi, learned counsel for respondent No.3, Sri Shishir Chandra, learned counsel for respondent Nos.4 to 8.
2) Brief fact of the case is that father of the respondent Nos.3 to 8 filed an application under Section 21(I)(a) of the U.P. Act No.13 of 1972 (for short, "the Act") against the petitioners and the respondent No.9 filed the application for release of the premises on the ground that Sri Ishar Singh - grand father of the petitioner Nos.1 and 2, father in law of petitioner No.3 and father of petitioner No.4 were tenants and after his death, his three sons namely Gurdayal Singh, Savinder Singh and Ram Preet Singh became tenants and on the death of Gurdayal Singh, the petitioner Nos.1 to 3 are his heirs and legal representatives.
3) The application for eviction was contested by the petitioners by filing their written statement denying the allegations of the plaint. The open space was let out to Sardar Ishar Singh-grand father of petitioner Nos.1 and 2, father in law of petitioner No.3 and father of petitioner No.4 for running rice mill since 06.12.1951. In support of their cases, the parties lead their oral and documentary evidence.
4) The trial Court allowed the application holding that the need, as set up by Sri Atm Prakash Gupta - land lord is bonafide and directed for eviction of the petitioners from the property in dispute.
5) The petitioners being aggrieved, filed an appeal under Section 22 of the Act before the District Judge, Lakhimpur Kheri, which was dismissed by endorsing the finding recorded by the respondent.
6) During pendency of the appeal, Sri Ram Ji Gupta - respondent No.3 filed an application before the respondent No.1 stating therein that he is co-landlord of the premises in dispute and after the death of his father, the circumstances have been changed, as after the death, the premises were to be released for setting up of so called need of respondent No.4. The business of money lending came in his share and besides that he has acquired the business, which was being run in the name and style of firm "Jagannath Prasad Gopalji Sarraf".
7) After the death of Sri Ram Prakash Gupta - the sole applicant, an application was made for substitution of his legal heirs on the basis of registered Will, in which the respondent No.3 filed his objection that the so called Will executed by his father was not executed by his own free Will, rather it was obtained by coercion and is doubtful, on which the legatees could not be substituted.
8) Assailing both the orders impugned dated 07.02.2017 and 10.01.2013 passed by the prescribed authority as well as the appellate authority, the submission advanced by learned Senior Counsel for the petitioners is that the orders are illegal, arbitrary and without jurisdiction.
9) He next submitted that over the land, which was let out, Sardar Ishar Singh constructed a teen shed to be used for go-down purposes for keeping machines for running the rice mill, therefore, the same be exempted from operation of the act and the tenants could not be evicted by initiating the proceeding under Section 21(I)(a) of the Act on the ground of bonafide need. Thus, his submission is that the impugned orders are vitiated in law.
10) His further submission is that during the pendency of the appeal, Sri Ram Ji Gupta-respondent No.3 moved an application on 16.08.2016 stating therein that he is the co-landlord after the death of Sri Atm Prakash Gupta and the premises sought to be released on the need of Sri Gopal Ji Gupta is not needed, as he is engaged in business of money lending and is running his business in the name and style of "Jagannath Prasad Gopalji Sarraf".
11) His next submission is that Sri Gopal Ji Gupta is running money lending business, therefore, he has no need of the said premises and the negotiations are going on. The respondents are getting rent from his share from the petitioners and no partition has taken place. Hence, the respondent Nos.4 to 8 have got no right to evict the tenants and further they do not want to prosecute the case filed by his father. In spite of that, the respondent Nos.1 and 2 allowed the application for release, which vitiates the judgment passed.
12) His further submission is that on the death of Sri Atm Prakash Gupta, an application was made for substitution of his heirs on the basis of registered Will Deed dated 24.07.2006, against which, objections were filed by respondent No.3 describing the said Will and further since the suit for partition (Regular Suit No.997 of 2012) is pending and pertains to question of title in respect of the property in dispute would not be decided.
13) He next submitted that the application for release filed by Sri Atm Prakash Gupta was not amenable in view of the specific bar, as contained in Section 21 and 29 of the Act and respondent Nos.1 and 2 have erred in law in allowing the same. Thus, his submission is that the judgments passed are vitiated in law.
14) On the other hand, respondent Nos.4 to 8 submitted that both the Courts below have committed no error in law in allowing the application filed under Section 21(I)(a) of the Act and both the Courts below have rightly passed the judgments for release of the premises, which do not suffer from any infirmity or illegality. It has further been submitted that the submission advanced by learned counsel for the petitioners are misconceived and is not tenable in law.
15) His further submission is that the application under Section 21(I)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was rightly filed and maintainable and on the basis of finding recorded on the point of balance of convenience, scale of comparative hardship and irreparable loss and injury, both the Courts below have proceeded to decide the claim setup by the respondents.
16) Learned counsel appearing on behalf of respondent Nos.4 to 8 submitted that only the building was let out to the petitioners and not the plant/machinery, therefore, the building is not exempted under Section 2(c) of the Act and placed reliance upon the lease deed annexed as Annexure No.7 to the counter affidavit.
17) His next submission is that late Sri Gopal Ji Gupta filed an application for bonafide need of the respondents and the application was decided by the prescribed authority during his lifetime, wherein, the bonafide need was found established and direction was issued to vacate the premises in question. After the death of the father, his son Sri Ram Ji Gupta, who was separated way back in the year 1991, colluded with the petitioners-tenants and started alleging that he was receiving the rent from the tenants and he does not want to evict the tenants.
18) As a matter of fact, the rent was not deposited since year 1991 and no objection whatsoever was raised by the tenants during the lifetime of Sri Atm Prakash Gupta before the prescribed authority. Thus, his submission is that the story concocted by the petitioners is not tenable in law. Both the courts below after considering the relevant material and evidence placed before them, have passed the judgment for release of the premises in question.
19) Learned counsel for respondent No.3, on the other hand, in paragraph No.10 of the counter affidavit has accepted that after the death of father, the respondent Nos.4 and 5 including the deponent started taking rent of Rs.500/- per month from the petitioners.
20) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the judgments passed by both the Courts below.
21) To resolve the controversy, relevant provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 are being quoted below:
"2. Exemptions from Operation of Act. - (1) Nothing in this Act shall apply to-
(a) any building belonging to or vested in the Government of India or the Government of any State or any local authority ; or
(b) any tenancy created by grant from the State Government or the Government of India in respect of a building taken on lease or requisi-tioned by such Government ;, or
(c) any building used or intended to be used as a factory within the meaning of the Factories Act, 1948 ; or
(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 along with 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
(e) any building used or intended to be used as a place of public entertainment or amusement (including any sports stadium, but not including a cinema or theatre) , or any building appurtenant thereto ; or
(f) any building built and held by a University or any other statutory corporation or' by a society registered under the Societies Registration Act, 1860, or by a co-operative society, company or firm, and intended solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent, or as a guest house, by whatever name called, for the occupation of persons having dealing with it in the ordinary course of business.
(2) Except as provided in sub-section (2) of section 24 or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed.
Explanation - For the purposes of this sub-section,-
(a) the construction of a building shall- be deemed to have been completed on the date on which-the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :
Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants ;
(b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished ;
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.
(3) The State Government, if it is satisfied that it is necessary or expedient so to do in the interest of genera public, may by notification in the Gazette, exempt from all or any of the provisions of this Act any building which is owned by an educational or charitable institution and the whole of the income derived from which is utilised for the purposes of that institution, and may in the like manner cancel or amend such notification."
"21. Proceeding for release of building under occupation of tenant. - (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely-
(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust :
(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction :
Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years :
Provided further that if any application under clause (a) is made in respect of any building in which the tenant is engaged in any profession, trade or calling, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount equal to two years' rent as compensation and may, subject to rules, impose such other conditions as he thinks fit :
Provided also that no application under clause (a) shall be entertained-
(i) for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste or place of birth ;
(ii) in the case of any residential building, for occupation for business purposes :
(iii) in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, '1925 has Issued a certificate that he is serving under special conditions within the meaning of section 3 of that Act, or where he has died by enemy action while so serving then against his heirs.
Explanation - In the case of a residential building :-
(i) where the tenant or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained ;
(ii) where the landlord was engaged in any profession, trade, calling or employment, away from the city, municipality, notified area or town area within which the building is situate and by reason of the cessation of such engagement, he needs the building for occupation by himself for residential purposes, such need shall be deemed sufficient for purposes of clause (a) ;
(iii) where the landlord is a member of the armed forces of the Union and the prescribed authority under the Indian Soldiers (Litigation) Act, 1925, has issued a certificate in his favour that he is serving under special condition within the meaning of section 3 of o that Act, then ,his representation that he needs the building for residential purposes for members of his family whose particulars are specified in the application shall be deemed sufficient for purposes of clause (a) ;
(iv) the fact that the building under tenancy is a part of a building the remaining part whereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona fide required by the landlord.
(2) The prescribed authority may on an application of the landlord in that behalf order the eviction of a tenant from any surplus land appurtenant to the building under tenancy if it is satisfied that the land is required for constructing one or more new buildings, or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings, and in either case, that the competent authority under any law for the time being in force has approved a plan for the said purpose.
Explanation - Where the appurtenant land including passage exceeds double the covered area of the building, the excess area shall be deemed to be surplus land.
(3) No order shall be made under sub-section (1), or subsection (2) except after giving to the parties concerned a reasonable opportunity of being heard.
(4) An order under sub-section (1) , or sub-section (2) , may be made not withstanding that the tenancy has not been determined :
Provided that no such order shall be made in the case of a tenancy created for a fixed term by a registered lease, before the expiry of such term.
(5) On an order being made under sub-section (1) , or sub-section (2) , the building or part or appurtenant land, as the case may be, shall stand released in favour of the landlord :
Provided that on the occurrence of any of the circumstances mentioned in section 24, any building or part thereof (but not appurtenant land alone) released as above, shall, without prejudice to the provisions of section 24, be deemed to become again subject to allotment in accordance with Chapter III.
(6) On the expiration of a period of thirty days from an order under sub-section (1) or sub-section (2) , the tenancy of the tenant shall stand determined in its entirety or, as the case may be, in respect of any part or appurtenant land released in favour of the landlord, and in the latter case, the rent payable for the remainder of the building under tenancy shall he such as may be agreed upon between the parties and in the absence of such agreement as may be determined under section 8."
"29. Special Protection to tenants of buildings destroyed by collective disturbances. - (1) Where in consequence of the commission of mischief or any other offence in the course of collective disturbances, any building under tenancy is wholly or partly destroyed the tenant shall have the right to re-erect it wholly or partly, as the case may be, at his own expense within a period of six months from such injury :
Provided that if such injury was occasioned by the wrongful act or default of the tenant he shall not be entitled to avail himself of the benefit of this provision.
(2) Where in consequence of fire, tempest, flood or excessive rainfall, any building under tenancy is wholly or partly destroyed the tenant shall have the right to re-erect or repair it wholly or partly, as the case may be, at his own expense after giving a notice in writing to the landlord within a period of one month from such injury :
Provided that the tenant shall not be entitled to avail himself of the benefit of this provision-
(a) if such injury was occasioned by his own wrongful act or default ; or
(b) in respect of any re-erection or repair made before he has given a notice as aforesaid to the landlord or before the expiration of a period of fifteen days after such notice, or if the landlord in the meantime makes an application under section 21, before the disposal of such application ; or
(c) in respect of any re-erection or repair made after the expiration of a period of six months from such injury or, if the landlord has made any application as aforesaid, from the disposal thereof.
(3) Where the tenant, before the commencement of this Act, has made any re-erection or repair in exercise of his rights under section 19 of the old Act, or after the commencement of this Act makes any re-erection in the exercise of his right under sub-section (1) or sub-section (2) ,-
(a) the property so re-erected or repaired shall be comprised in the tenancy ;
(b) the tenant shall not be entitled, whether during the tenancy or after its determination, to demolish the property or parts so erected or repaired or to remove any material used therein other than any fixtures of a movable nature ;
(c) Notwithstanding, anything contained in sub-section (2) of section 2, the provisions of this Act shall apply to the building so re-erected :
Provided that no application shall be maintainable under section 21 in respect of any such building on the ground mentioned in clause (b) of sub-section (1) thereof within a period of three years from the completion of such re-erection."
22) I have considered the submissions advanced by learned counsel for the parties and perused the relevant provisions contained under U.P. Act No.13 of 1972 as well as the order passed by the prescribed authority and the judgment passed in the appeal.
23) The prescribed authority, in its order, has appreciated the evidence on record and by recording specific finding in regard to bonafide need and comparative hardship, recorded that the sons of the landlord have become major and the crusher, which was run and managed by father of the petitioners, was closed, therefore, the sons were not able to meet out the expenditure of the family and the income occurring from the business was not sufficient to meet out the day to day affairs of the family. It has further been recorded that to enhance the income, the building was required to the landlord considering the fact that it is not barred by Section 2(c) of the Act No.13 of 1972.
24) The prescribed authority has also considered the judgments relied upon by the applicants referred in the application filed under Section 21(I)(a) of U.P. Act No.13 of 1972 and by recording cogent reasons and finding in regard to bonafide requirement, allowed the application.
25) In the opinion of this Court, in absence of any otherwise material to establish that there is no bonafide requirement, this Court upheld the finding returned by the prescribed authority in its order.
26) On perusal of the judgment of the appellate Court, it is evident on the face of it that the appellate Court has considered each and every point raised before it as well as the oral submissions made by the parties and found that the prescribed authority has not committed any error in allowing the application filed under Section 21(I)(a) of the Act and held that there is bonafide requirement and in comparison of tenant, the comparative hardship is in favour of the respondent Nos.4 to 8.
27) The appellate Court has recorded cogent reasons and affirmed the finding recorded by the prescribed authority by adding certain more points involved for consideration in deciding the appeal.
28) In the opinion of this Court, both the courts below have committed no illegality in passing the orders impugned.
29) The submission advanced by learned counsel for the petitioners do not attract to this Court in any manner. Both the Courts below on appraisal of facts and evidence have came to the conclusion that there is bonafide need of the landlord and the comparative hardship is in favour of the landlord and recorded that the building is required to run business to engage sons of the landlord.
30) In view of the above, being no force in the submission of learned counsel for the petitioners, the writ petition being devoid of merit, the orders under challenge cannot be interfered by this Court.
31) Accordingly, the writ petition is hereby dismissed.
32) Interim order, if any, stands vacated.
33) The judgment and decree passed by both the Courts below are maintained and are affirmed. However, in order to save the tenants from the peril of sudden eviction, it is directed that the decree for eviction shall not be available for execution for a period of four months from today subject to the petitioners-tenants filing the usual undertaking and clearing the entire money part of the decree by making the deposit with the executing Court within a period of six weeks from today. The decrees in terms of the judgment of the first appellate Court, if not already drawn up, shall be drawn by the trial Court within a period of six months.
Dated: 05.08.2019 Adarsh K Singh