Allahabad High Court
Harish Chandra Gupta vs Swatantra Kumar Jain And Others on 2 April, 1999
Equivalent citations: 1999(2)AWC1765
JUDGMENT Sudhir Narain, J.
1. The petitioner, aggrieved against the order passed by the prescribed authority dated 10.8.1982 releasing the disputed shop in favour of landlord-respondent No. 1 and the order of the appellate authority dated 27.3.1398, has filed this writ petition.
2. Respondent No. 1 purchased premises in question bearing house Nos. 2127 and 2128 from the erstwhile owner Smt. Champa Devi on 12.2.1996. The first floor portion consisting of three rooms has been numbered as 2128 and the ground floor portion consisting of two interconnected rooms has been numbered as 2127. Mohan Lal was the tenant of both the portions, namely, 2127 and 2128. After his death in the year, 1962, it was inherited by his widow Nanhi Devi. After the death of Nanhi Devi, the petitioner occupied the premises as adopted son of Mohan Lal. Respondent No. 1 filed application against the petitioner on 25.8.1981 for release of the ground floor portion No. 2127 on the allegation that western wall of the disputed accommodation had fallen down. The accommodation is in dilapidated condition and requires demolition and reconstruction. He further sought release on the ground that he requires this accommodation for running Soda Water, Lemon and Cold Drink shop.
3. The petitioner contested the application denying that the disputed accommodation was in dilapidated condition or respondent No. 1 required it for carrying on any business. The prescribed authority recorded a finding that the disputed accommodation was in dilapidated condition and required demolition and reconstruction. Respondent No. 1 was in capacity to reconstruct the shop in question. It was further found that the need of respondent No. 1 to carry on business of Soda Water, Lemon and Cold Drink was bona fide. In case his application is rejected he will suffer a greater hardship. The petitioner filed an appeal against this order and the appellate authority has dismissed the appeal on 27.3.1998.
4. I have heard Sri K. M. Dayal, learned counsel for the petitioner, and Sri K. S. Singh, learned counsel for respondent No. 1.
5. The first submission of learned counsel for the petitioner is that the disputed accommodation is residential one and, therefore. It cannot be released for commercial purposes as clause (ii) of third proviso to sub-section (I) of Section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (In short the Act) prohibits entertainment of application under Section 21 (1) (a) of the Act in the case of any residential building, for occupation or business purposes. The prescribed authority recorded a finding that the disputed accommodation was let out for the purpose of carrying on business by Mohan Lal and it was not a residential accommodation. This finding has been affirmed by the appellate authority. The petitioner has challenged those findings in this writ petition.
6. It is contended that Smt. Champa Devi, the erstwhile owner of the property, had filed an application before the Rent Control and Eviction Officer seeking permission to file suit for eviction against Smt. Nanhi Devi and the petitioner on the ground that it was bona fide required for her son to carry on business. The application was rejected by the Rent Control and Eviction Officer. Smt. Champa Devi filed revision against that order before the Commissioner. During the pendency of revision U. P. Act No. XIII of 1972 came into force. The revision was transferred to the District Judge and was converted in appeal. The appeal was dismissed by the District Judge on 1.2.1973 and it was held that the disputed accommodation was not being used for commercial purposes. It is contended that the said finding operates as res judicata and Rule 18 of the Rules framed under the Act will not be applicable.
7. In Amal Chand Dutt v. IInd Additional District Judge, Allahabad and others, 1988 (2) ARC 612, the Supreme Court held that Rule 18 (1) does not prohibit or bar filing of the application for release of any building on any ground mentioned in Section 21 (1) within a period of six months from the date on which a final order was passed in the previous application made under Section 3 of 1947 U. P. Rent Control Act or within a period of six months from the commencement of the Act of 1972. The Rule only sets out a rule of prohibition to be followed by the prescribed authority for dealing with an application for release on the same ground without a sufficient interval of time between filing of the two applications. The prohibition, under Rule 18 (1) is only of a directory nature and not mandatory nature.
8. The contention is that the application may be maintainable after the period of one year as provided in Rule 18 but if any finding is recorded in respect of the nature of the building, such finding is binding upon the prescribed authority in subsequent proceedings.
9. A perusal of the order of the appellate authority dated 1.2.1973 indicates that the District Judge in Civil Appeal No. 9 of 1972 recorded the following finding :
"The house been let out to the defendant and this includes the shop. This shop is not being used as shop by the defendant but as a Baithak."
10. This finding itself indicates that the house was let out to the tenant as a shop but at the time the order was passed, it was being used as Baithak. The subsequent user by the tenant for residential purpose did not change the nature of the building. In Kailash Nath Bajpai v. Chandra Shekhar Singh and another, 1995 (1) ARC 238, it was found that if the tenant changes the user of the building from non-residential to residential, sub-clause (ii) of third proviso shall not be attracted. The prescribed authority as well as the appellate authority again considered this matter and lound that Mohan Lal was using the disputed accommodation as a shop. He was residing on the first floor and the disputed accommodation was used as a shop. He died in 1962. The petitioner was adopted as his son and as the petitioner was employed as clerk in Collectorate, he did not use the accommodation as a shop. It is not denied that Mohan Lal was a business-man. He had executed a Will in favour of the petitioner and in that Will he bequeathed all his properties to him. The petitioner, in this writ petition, has not denied that Mohan Lal has not executed any Will in his favour. On the findings recorded by the District Judge in the earlier proceedings in appeal as well as the prescribed authority and the appellate authority in the present proceedings, it has been found that the disputed accommodation was let out for non-residential purpose and in view of such finding, the bar contained in sub-clause (ii) of third proviso of Section 21 of the Act is not attracted.
11. The petitioner has further assailed the finding on the question of nature of building. The version of the respondent No. 3 was that the disputed accommodation was in a dilapidated condition and required demolition and reconstruction. The western wall has fallen down. The petitioner submitted the report of Om Saran Jauhari and the landlord filed the report of B. B. Singh, retired Junior Engineer. Those reports were accompanied by their affidavits. These reports were duly considered by the prescribed authority as well as the appellate authority. During the pendency of the appeal, the Court appointed a Commissioner and the Commissioner submitted a report and further an additional report. Those reports have been annexed as Annexures-12 and 13 to the writ petition. Besides there was a report of the Engineer of Nagar Palika dated 7.11.1981. The contention of the learned counsel for the petitioner is that the report of the Commissioner has not been taken into account by the appellate authority. A perusal of these reports do not substantiate the contention of the petitioner that the accommodation in dispute is not in a dilapidated condition. In Ramesh Chandra and others v. IIIrd Additional District Judge. Aligarh and others, 1995 (1) ARC 181, the Court emphasised that the law does not require that a building should be in the imminent danger of falling down to be treated as dilapidated one requiring reconstruction. I do not find any legal infirmity in the finding recorded by the authorities below that the disputed accommodation was in dilapidated condition.
12. Learned counsel for the petitioner has further assailed the finding that the need of the landlord is not bona fide, it is urged that he has purchased another building in the name of his wife along with his brothers and they are carrying on business in that building. The appellate authority has considered in detail about the other properties in which the petitioner had suggested that respondent No. 1 is carrying on the business. It was found that respondent No. 1 has no share in such building or the business being carried on there. His need to have a shop of Soda Water. Lemon and Cold Drink was found bona fide. It is not necessary to consider again the details about the evidence considered by those authorities. The petitioner is employed as clerk and he himself never stated that he is carrying on business or requires it for carrying on business. He is residing on the first floor portion which consists of three rooms. He has alleged himself that he is using the disputed accommodation as Baithak. He can do so on the first floor portion of the house. particularly when the landlord-respondent No. 1 requires it for carrying on business.
13. The last submission of the learned counsel for the petitioner is that respondent No. 3 had purchased the disputed premises by a registered sale deed from the erstwhile owner Champa Devi on 12.12.1976. He was not entitled to file application for release of the disputed premises under Section 21 (1) (a) of the Act unless the petitioner was served with a notice as contemplated under the first proviso to Section 21 of the Act. The appellate authority has recorded a finding that such notice was served upon the petitioner and it was duly received by him on 12.10.1979. It is a finding of fact and does not require any interference under Article 226.
14. In view of the above there is no merit in the writ petition. It is accordingly dismissed with costs.