Allahabad High Court
Lakshmi Traders Akbarpur Mandi & Others vs Navin Rastogi & Another on 10 December, 2018
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case:- WRIT - A No. - 53894 of 2009 Petitioner :- Lakshmi Traders Akbarpur Mandi & others Respondent :- Navin Rastogi & anoher Counsel for Petitioner :- Kshitij Shailendra Counsel for Respondent :- Dharm Vir Jaiswal, Harsh Vikram, Virendra Chaubey Hon'ble Manoj Kumar Gupta,J
1. The instant writ petition seeks to question the validity of an order dated 17.9.2009 passed by Additional District Judge, Court No.4 Moradabad in Rent Control Appeal No.3 of 2008. By the said judgement, the appellate court has allowed the appeal filed under Section 22 of the U.P. Act No.13 of 1972 (for short ''the Act') by Navin Chandra, the respondent/landlord and has ordered the eviction of the petitioners within a period of one month.
2. The proceedings arises out of a release application filed by the respondents/landlords (for short ''the landlords') under Section 21(1)(a) of the Act against the petitioners alleging that a shop situated at Bazar Akbarpur Mandi, Tehsil Sambhal, District Moradabad was in tenancy of Harish Chandra (petitioner no.2), on basis of a written rent note executed between him and their predecessor-in-interest, from whom they had purchased the shop. The information relating to purchase of the shop by sale deed dated 4.7.1986 was duly furnished to petitioner no.2, Harish Chandra by notice dated 3.1.1987. Petitioner no.2 has taken up a job in the office of District Supply Officer and had handed over possession of the shop to petitioners 1 and 3. Petitioner no.1 is alleged to be a business concern run by Smt. Usha Gupta, sister-in-law of petitioner no.2 and petitioner no.3 is the real brother of petitioner no.2. They are refusing to vacate the shop although Navin Rastogi, respondent/landlord is sitting idle and is in bonafide need to start his own business.
3. The release application was not contested by Harish Chandra, petitioner no.2. However, petitioners 1 and 3 filed a joint written statement and wherein they claimed that the shop had been in the tenancy of M/s. Laxmi Traders, petitioner no.1 and that rent till 30.6.1995 was also duly accepted by the landlords but thereafter they stopped accepting the rent. It was further alleged that since the landlords do not admit petitioners 1 and 3 as tenant, consequently release application under Section 21(1)(a) would not be maintainable against them. They also disputed the alleged need of the landlords.
4. The Prescribed Authority rejected the release application holding that the alleged need of the landlords was not bonafide nor they would suffer any hardship. Aggrieved thereby, landlord-Navin Chandra carried the matter in appeal under Section 22 of the Act, being Rent Appeal No.3 of 2008. The appeal has been allowed by the appellate court by impugned judgement dated 17.9.2009.
5. Sri Kshitij Shailendra, counsel for the petitioners submitted that in view of the own case of the landlords in the release application that petitioners 1 and 3 are not tenants but illegal occupants, consequently, release application would not be maintainable as it lies only against a sitting tenant. His next submission is that the finding recorded by the appellate court regarding need of respondent no.1 is not sustainable in law in as much as the statement of Hari Om Rastogi, father of the respondent-landlords recorded in SCC Suit No.8 of 1999 admitting that respondent Navin Chandra was residing at Chandigarh, has been ignored from consideration.
6. Per contra, learned counsel for the landlords supported the decision rendered by the appellate authority and urged that the findings recorded therein being findings of facts do not warrant any interference by the writ court.
7. The specific case of the landlords in the release application was that petitioner no.2 was tenant of the shop in dispute in pursuance of a written rent note executed between him and their predecessor-in-interest. Petitioner no.2 did not file any written statement nor contested the proceedings by entering appearance either before the Prescribed Authority or before the appellate court. On the other hand petitioners 1 and 3 claimed that tenancy was in the name of petitioner no.1. Petitioner no.3 alleged that he was also tenant of the shop. Smt. Usha Gupta, who represents the firm, petitioner no.1 is sister-in-law of petitioner no.2 and petitioner no.3 is his brother. They have not clarified the status of petitioner no.1 as to whether it was a proprietorship concern or a partnership firm nor any document in this regard has been brought on record. The appellate court, placing reliance on paper No.34-Ga, certified copy of the rent agreement between petitioner no.2 Harish Chandra and predecessor-in-interest of the landlords has held that petitioner no.2 was the sole tenant and that there is no evidence to establish tenancy in favour of petitioner no.1 or petitioner no.3. The appellate court has also entered a specific finding to the effect that petitioner no.2 had taken up a job in the office of District Supply Officer. The specific case of the landlords was that after taking up job he handed over possession of the shop to petitioners 1 and 3. In these circumstances, the appellate court has held that at best the status of petitioners 1 and 3 would be that of a sub-tenant. These findings are not under challenge by learned counsel for the petitioners. As noted above, his contention is that once the appellate court has accepted the case of the landlords that petitioner no.2 was not in possession and status of petitioners 1 and 3 was that of sub-tenant, release application under Section 21(1)(a) was not maintainable as it lies only against a sitting tenant.
8. Under common law, a landlord can evict tenant or any person in illegal possession of a tenanted premises including sub-tenant by filing a civil suit. In respect of a building governed by provisions of the Act, various restrictions have been placed on the rights of a landlord to seek eviction. For example, under common law, a landlord can seek eviction of tenant after determining the tenancy by simple notice under Section 106 of the Transfer of Property Act, 1882, subject to any contract to the contrary. Under the Act, the unfettered discretion to evict a tenant has been whittled down to specific grounds provided thereunder.
9. At the same time, the Act also confers certain new rights and liabilities both in favour of tenants and landlords. In case a premises is sub-let, apart from making available the common law remedy of seeking eviction of tenant as well as sub-tenant by filing a civil suit, the Act, by creating a legal fiction, treats such premises as vacant in the eyes of law. It becomes available for allotment/release as per provisions of Section 12 and 16, relevant parts of which read thus :-
"12. Deemed vacancy of building in certain cases.--- (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if--
(a) he has substantially removed his effects therefrom; or
(b) he has allowed it to be occupied by any person who is not a member of his family; or
(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
(2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
(3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy:"
"16. Allotment and release of vacant building. -(1) Subject to the provisions of the Act, the District Magistrate may by order -
(a) require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order) ; or
(b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order):"
Section 25 of the Act, notwithstanding any contract to the contrary, prohibits sub-letting of whole of the tenanted premises. It permits sub-letting of part of the building that too with the written permission in writing of the landlord and the District Magistrate. The Explanation to Section 25 expands the meaning of sub-tenancy and takes within its ambit cases (i) where the tenant ceases, within the meaning of clause (b) of sub-section (1) or sub-section (2) of Section 12, to occupy the building or any part thereof.
10. It would be clear from the above provisions that once a building is deemed vacant under Section 12 or in case of actual vacancy where the tenant has vacated the building under his tenancy, it becomes open for allotment or release under Section 16 of the Act. Sub-section (2) of Section 16 stipulates that such a building could be released in favour of landlord if the District Magistrate is satisfied that it is bonafide 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, calling or where the landlord is the trustee of a public charitable trust, for the objects of the trust, or that the building or any part thereof is in a dilapidated condition and is required for purposes of demolition, and new construction.
11. Section 21 of the Act also envisages release of a building in favour of the landlord if it is bonafidely required by the landlord in its existing form or after demolition and new construction or where it is in dilapidated condition for purpose of demolition and new construction. The relevant provisions of Section 21 reads thus :-
"21. Proceedings 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:"
12. A perusal of the above provisions would reveal that release application under Section 21(1) lies against a sitting tenant whereas release application under Section 16(1)(b) lies only in respect of a building which is or has fallen vacant or is about to fall vacant. The argument of learned counsel for the petitioners is based on the above distinction in cause of action for invoking the above remedies. According to him, once it was found that petitioner no.2, who was the actual tenant, had vacated the building under his tenancy and had handed over possession to petitioners 1 and 3, the remedy available to the landlord was under Section 16 (1)(b) of the Act and not under Section 21(1). In other words, where a tenanted premises is in possession of persons who are treated to be illegal occupants under the Act including sub-tenant, the remedy is under Section 16(1) and not under Section 21(1).
13. For understanding the above submission, it would be useful to refer to certain provisions of the Transfer of Property Act, 1882 which still holds the field being not inconsistent with the provisions of the Act by virtue of Section 38. Clauses (m) and (q) of Section 108 of the said Act, which lays down the rights and liabilities of the lessee, provides that :-
"(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;"
"(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property."
14. Under the Act, apart from prohibition upon sub-letting, Section 26(3) stipulates that no tenant shall, whether during the continuance of the tenancy or after its termination, demolish any improvement effected by him in the building or remove any material used in such improvement, other than any fixture of a movable nature. The law imposes a positive obligations upon a lessee to keep the tenanted premises in good condition and on termination of lease to put the lessor into possession of the property. The above obligations do get eclipsed by the unilateral act of the tenant in surrendering possession of tenanted premises to a stranger, other than the landlord or his duly appointed agent or attorney. The liability of the tenant under the contract of tenancy does not cease. He continues to be liable to pay rent of the building to the landlord and to restore vacant possession to him. It is for the said reason that Section 16(4) authorises the District Magistrate to evict not only the tenant who had ceased to occupy the building in view of fiction created under the Act but also every other person claiming under him or found in occupation of the premises. Likewise, Section 23 contemplates that a release order passed under Section 21 could not only be enforced against the tenant but also against any other person found in actual occupation of the building.
15. As noted above, the Act while placing various restrictions on the right of the landlord to seek eviction, has also granted additional rights in his favour. Thus in respect of a tenant, who had sub-let the premises, apart from remedy of filing suit under Section 20 and seeking release under Section 16(1)(b), he has also got a right to seek release of such premises under Section 21(1) of the Act. The tenant would continue to remain bound by the contract of tenancy until he hands over actual vacant possession to the landlord. Till such time, the remedy conferred in favour of landlord to seek release under Section 21(1) is not taken away merely because the tenant had handed over possession of the tenanted premises to sub-tenant or a rank outsider. There is nothing in the Act which precludes a landlord to seek release under Section 21(1) if the premises has been sub-let or its possession is handed over to a rank outsider. The relation of landlord and tenant ceases only where actual vacancy comes into existence after the tenant or any person occupying the premises on his behalf vacates and hands over possession to the landlord. The tenant, in that event relieves himself from the obligations arising out of the contract of tenancy. The landlord of such a premises, if seeks release, will have to take the route prescribed by Section 16(1)(b). The remedy under Section 21(1)(a) will not be available to him.
16. Section 21 contains intrinsic evidence which advances the interpretation given above. The first clause of Explanation to Section 21 precludes a tenant from objecting to the application filed by the landlord under the said provision where he 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. It is noteworthy that under Section 12(3) of the Act, upon happening by such a contingency, the building is deemed to be vacant. Had the legislative scheme been that once vacancy comes into existence on happening of any event contemplated under Section 12 then remedy of filing release under Section 21(1) would not be available, then the release application by a landlord against a tenant, who or any member of his family has built or has otherwise acquired a building in vacant state in the same municipality, would also not be maintainable. However, the Explanation to Section 21(1) makes it abundantly clear that not only application under Section 21(1) would be maintainable but the tenant would also be precluded from raising any objection against the application filed by the landlord seeking release of the premises.
17. In T.C. Rekhi vs. Prescribed Authority, Nainital and others, 1983(2) ARC 223, the landlord filed a release application under Section 21(1)(a) during pendency of a writ petition whereunder he had challenged the order of the Rent Control and Eviction Officer, setting aside the release order passed in his favour under Section 16(1)(b) and remitting the matter for a fresh consideration. The tenant challenged the maintainability of release application filed by the landlord under Section 21 exactly on the same ground. The argument was repelled by the following observations :-
".................The argument of learned counsel for petitioner that permitting the landlord to take proceedings u/s. 21(1)(a) and Section 16(b) amounts to abuse of process of law cannot be accepted. There is no specific bar in the Act prohibiting a landlord from filing an application u/s.21(1)(a) if he has already filed an application u/s.16(1)(b). True in a case where order declaring vacancy has become final probably it might not be possible to file an application u/s.21(1)(a) as the person against whom it is filed ceased to be tenant by operation of law. But it would not be the same in a case where the application has been filed when the matter is still pending adjudication. As has been seen above Section 16(1) (b) application has not been decided on merits as yet. To say in the circumstances that application u/s. 21 was not maintainable is not correct."
In Munni Lal vs. Prescribed Authority, Agra and others, 1992 ACJ 789, this Court explained the difference in causes of action for initiating proceedings under Section 16(1)(b), Section 21(1) and Section 20 in the following words :-
"6. A close scrutiny of the provisions of the Act would show that the causes of action for initiating proceedings under Section 16(1)(b) or under Section 21(1) or for instituting a suit for eviction of a tenant are entirely different. In proceedings under Section 21(1) the tenant asserts that he is in occupation of the building and the landlord also admits the said fact. In proceedings under Section 16(1)(b) though the tenant says that he is continuing in occupation of the building and is in lawful occupation thereof the landlord asserts that on account of one of the acts enumerated in sub-section (1), (2) or (3) or Section 12 of the Act, done by the tenant he shall be deemed to have vacated the building within the meaning of sub-section (4) thereof. Thus in such a proceeding the landlord seeks to rely upon the legal fiction created by sub-section (4) of Section 12 of the Act. Therefore, there can be no confliction the facts which have to be alleged and proved by a landlord for getting an order in his favour while initiating proceedings under Section 16(1) (b) for under Section 21(1) of the Act."
18. Similar view has been taken by another learned single judge of this Court in Buddu Lal alias Budh Ram vs. District Judge, Allahabad, 1998(1) ARC 597 by holding that there is no provision in the Act which bars moving of an application under Section 21(1)(a) even where a deemed vacancy under Section 12 of the Act may have occurred. The considerations which weighed with the learned single judge while coming to such a conclusion are contained in paragraph 6 and are quoted below :-
"6. The main argument of the learned Counsel for the petitioner is that once the landlord himself came with the case that the petitioner-tenant was not residing in the tenanted accommodation and was actually residing at 60, Akhara Man Khan accommodation, there occurred a deemed vacancy as per his own admission and, therefore, the only course open for him was to move an application under Section 16 of the Act and application under section 21(1)(a) of the Act was not legally maintainable. This argument of the learned counsel for the petitioner must be rejected out rightly as not tenable. It may be relevant to mention here that in his application under Section 21(1)(a) of the Act, the landlord made an averment that the tenant-petitioner was not in need of the disputed accommodation as he has started residing at 60, Akhara Man Khan, Allahabad. From this averment it cannot be inferred either on fact or in law that the petitioner no longer remained the tenant of the landlord. So long as tenancy subsists it is always open for the landlord to more an application under Section 21(1)(a) of the Act. It was also open for the landlord to have approached the Rent Control & Eviction Officer under Section 16 of the Act for the release on the ground that the accommodation should be deemed to be vacant by legal fiction under the provisions of Section 12 of the Act. It is true that a different consideration weigh with the authorities while considering an application under Section 21 (1)(a) and an application under Section 16 of the Act. In an application moved under Section 21(1)(a) besides providing bona fide need, the landlord has also to show that he will suffer a greater hardship than that of the tenant. Such a comparison of hardship is not at all required to be gone into in an application under Section 16 of the Act."
Once again another learned single Judge of this Court in Smt. Ganga Devi vs. District Judge, Ghaziabad and others, 1980 ARC 335 repelled a similar argument by holding thus:-
"Having heard learned counsel for the parties, I am of opinion that the contention of the learned counsel for the petitioner is well founded and has to be accepted. The learned District Judge is of the view that once the jurisdiction of the Rent Control and Eviction Officer is invoked under Section 16 of the aforesaid Act, and the matter becomes pending before him, the Prescribed Authority would have no jurisdiction thereafter to proceed under Section 21 of the Act. I do not agree with this broad and sweeping statement of the law. There is no warrant for such a conclusion either on the plain language of Sections 21 and 16 of the aforesaid Act or even in the scheme underlying the Act. Section 21 of the Act, in my judgment is available so long as the tenant is holding on the to the building in question and is in lawful occupation thereof. The provisions of Section 21 of the Act are applicable against who may be described as a sitting tenant. The mere fact that the matter relating to declaration of vacancy and allotment of the building in question happens to be pending for adjudication before the Rent control and Eviction Officer does not automatically deprive the Prescribed Authority of to jurisdiction to deal with an application under Section 21 of the Act. The position would, however, be different if after final adjudication of vacancy, the building is allotted to some one. Section 21 will have no application in that contingency, for in that eventuality the continued occupation of the tenant wold be unlawfull and the tenant would be deemed to have ceased to occupy the building by virtue of Section 13 of the aforesaid Act which provides that after a building is allotted or released under Section 16, no person shall occupy the same, and if he does so in contravention of the order of allotment or release, he would be deemed to be an unauthorised occupant of such building. In such a case, it is obvious that there would be no question or necessity of a landlord seeking an order of eviction against a tenant under Section 21 of the aforesaid Act. Nor can the tenant be characterised, in that eventuality, as a sitting tenant.
19. Having regard to the above legislative scheme, this Court is of the considered opinion that the submission of learned counsel for the petitioners that the release application in the instant case would not be maintainable as at the time of filing of release application, the tenanted premises was in possession of petitioners 1 and 3 who were not admitted to be tenant by the respondents/landlords, does not have any merit and is hereby rejected.
20. Coming to the next submission of learned counsel for the petitioners that the findings of bonafide need entered by the appellate authority ignoring the admission made by father of petitioner no.2 in his statement given in another suit that his son is residing at Chandigarh, is perverse, also does not merit acceptance. Firstly, the second petitioner, who was the tenant of the premises has not contested the proceedings before the Prescribed Authority nor before the appellate court but has joined as a co-petitioner for the first time in the instant petition. Secondly, in the written statement filed by the petitioners they had not taken any plea that landlord-Navin Chandra is residing at Chandigarh. They had brought on record the statement of Hari Om Rastogi, father of respondent no.1, without disclosing its relevance and also without taking any specific pleading in the written statement regarding the said statement. Thirdly, on perusal of the said statement, filed as Annexure 4, I find that statement of Hari Om Rastogi was recorded in an entirely different context in suit for eviction based on ground of default in payment of rent. Even in the said statement, he only stated that Navin Rastogi sometimes comes to the shop and sometimes he lives at Chandigarh. In the considered opinion of the Court, the same could not amount to an admission that Navin Rastogi is permanently residing at Chandigarh. It is noteworthy that the appellate court also held that Amit Rastogi, son of Navin Rastogi has grown up and was aged 22 years and both he and his father were without any employment. The petitioners could not point out any permanent business being run by them. The findings recorded by the appellate court on the issues of bonafide need and comparative hardship of the parties are findings of facts and do not warrant any interference under Article 226 of the Constitution.
21. No other submission has been made by learned counsel for the petitioners. The petition lacks merit and is dismissed.
22. At this stage, counsel for the petitioners prayed for some time being granted to vacate the shop to which learned counsel for the respondents has no objection.
23. Accordingly, petitioners are granted six months' time to vacate the disputed premises subject to their furnishing a joint undertaking before the Prescribed Authority within three weeks from today, that they will handover vacant possession of the disputed shop to the landlords within six months from today and they shall not induct any other person in the premises in dispute in the meantime. They shall also pay rent/damages at the rate of Rs.1000/- per month for entire period of six months within three weeks from today. The landlords shall be permitted to withdraw rent/damages deposited by the petitioners in pursuance of his order. In default of any of the above conditions, the protection granted hereby shall stand vacated automatically and the Prescribed Authority shall ensure that the release order is executed forthwith and possession is delivered to landlords without delay.
Order Date :- 10.12.2018 skv (Manoj Kumar Gupta, J.)