Allahabad High Court
Babulal Chawdhary S/O Late Mahaveer ... vs Prescribed Authority/Additional ... on 22 November, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 6 Case :- WRIT - A No. - 1000145 of 2009 Petitioner :- Babulal Chawdhary S/O Late Mahaveer Prasad Respondent :- Prescribed Authority/Additional Civil Judge S.D. And Ors. Counsel for Petitioner :- Madhur Kant Srivastava Counsel for Respondent :- C.S.C.,Bireshwar Nath Hon'ble Abdul Moin,J.
1. Heard Sri Madhur Kant Srivastava, learned counsel for the petitioner, and Sri Bireshwar Nath, learned counsel, assisted by Sri R.K. Singh Raj, learned counsel for respondents no.2 and 3.
2. Instant petition has been filed praying for the following main reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorary quashing the order passed by opposite party no.1 dated 23.09.2009 contained in Annexure No.1 in P.A. Case No.1/2004 "Buddhi Lal and another vs. Babulal Chawdhary", rejecting the application moved by the petitioner under Section 29 of U.P. Act 13 of 1972 of the writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow reconstruction of the tenement in dispute within the stipulated and reasonable time granted by this Hon'ble Court."
3. The case set forth by the petitioner is that in the year 2004 an application under Section 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act, 1972') was filed by respondent/landlord before the Prescribed Authority praying for release of two shops under tenancy of the petitioner. The said application was registered as P.A. No.1 of 2004. Written statement was filed by the petitioner. It is contended that a civil suit was also filed by the petitioner for permanent injunction in which a stay order was granted on 01.03.2004, a copy of which is Annexure-4 to the petition. However, despite existence of the said interim order both the shops were demolished by the respondent/landlord. The petitioner claims to have lodged a first information report on 01.08.2005 against the respondent/landlord but in a petition filed by the landlord, a stay order was granted by this Court whereby the arrest of the respondent/landlord was stayed. Subsequently a charge sheet was filed in the said criminal case in which again the landlord/respondent is said to have approached this Court in which certain orders were passed.
4. Be that as it may, an application was filed by the petitioner under Section 29-A of the Act, 1972 on 06.08.2005, a copy of which is Annexure-6 to the petition. The said application was filed in the pending application under Section 21 of the Act, 1972 filed by the respondent/landlord namely case P.A. No.1 of 2004. The prayer in the said application was for a direction to be issued to the landlord/respondent to reconstruct the shops under tenancy of the tenant or to permit the tenant to reconstruct the shops. The landlord filed his objections to the said application and the learned court below vide impugned order dated 23.09.2009, a copy of which is Annexure-1 to the petition, rejected the application. Being aggrieved, instant petition has been filed.
5. The contention of learned counsel for the petitioner is that when the aforesaid case under Section 21 of the Act, 1972 was filed and there was a stay order that had been granted by the Civil Court in favour of the petitioner in the suit for permanent injunction filed by him as such in order to frustrate the said stay order the shops were got demolished by the respondent/landlord. As the said shops had been demolished during the pendency of the aforesaid application before the Prescribed Authority as such an application under Section 29-A of the Act, 1972 was filed. He contends that once a mischief was sought to be created by the landlord/respondent in the matter inasmuch as the shops in dispute were themselves demolished by the landlord/respondent for which a first information report was lodged as such it was in the fitness of things that the Prescribed Authority should have allowed the said application and should have either directed the landlord/respondent herein to reconstruct the shops or in the alternative to have permitted the petitioner to reconstruct the said shops. He contends that the said application has been rejected by the Prescribed Authority vide impugned order dated 23.09.2009 primarily on two grounds namely (a) in the Commissioner's report which has been called for it emerges that the shops were demolished on account of being an encroachment, and (b) that an application under Section 29 of the Act, 1972 should have been filed separately.
6. So far as ground (a) is concerned, it is contended that nowhere in the Commissioner's report, a copy of which has been filed as Annexure -12 to the petition, it comes out that the shops were demolished on account of being an encroachment. So far as ground (b) is concerned, it is contended that there is no provision for filing of a separate application, as such, the court below has patently erred in rejecting the said application.
7. Learned counsel for the petitioner has placed reliance on Section 29-A of the Act, 1972 to contend that an application in such circumstances would be perfectly maintainable before the Prescribed Authority and as such the learned court below has patently erred in law in rejecting the said application. In support of his argument, reliance has been placed on the judgments of the Apex Court in the cases of M.S. Grewal and another vs. Deep Chand Sood and others-AIR 2001 SC 3660, The State of Punjab and another vs. Shamlal Murari and another-AIR 1976 SC 1177, and M/s Shaha Ratansi Khimji and sons vs. Proposed Kumbhar sons Hotel P. Ltd. and others - AIR 2014 SC 2895.
8. No other argument has been raised.
9. On the other hand, Sri Bireshwar Nath, learned counsel appearing for respondent no.2 and 3, assisted by Sri R.K. Singh Raj, on the basis of averments contained in the counter affidavit argues that as the said shops in tenancy of the petitioner were an encroachment as such the Nagar Panchayat had published a public notice on 03.06.2005, a copy of which is Annexure CA-2 to the counter affidavit and thereafter had demolished the said encroachment. It is also contended that in the first information report that had been lodged by the petitioner a final report has been submitted on 13.06.2006, a copy of which is Annexure CA-3 to the counter affidavit, from a perusal of which it emerges that the Investigating Officer has recorded that there was an encroachment which has been removed by the authorities concerned and that the petitioner, for the purpose of getting insurance claim, has lodged the first information report. He also argues that the Act, 1972 provides for filing of a separate application and as such there is no infirmity in the order passed by the Prescribed Authority.
10. Responding to the same, learned counsel for the petitioner contends that he has filed a rejoinder affidavit as well as supplementary affidavit dated 28.03.2009 whereby he had brought on record that after the aforesaid final report had been submitted by the authorities, the petitioner had filed his protest application and thereafter the respondents/landlord had been summoned against which they had approached this Court by filing an application under Section 482 Cr.P.C. No.2360 of 2009 in re: Mahadev Prasad vs. State of U.P. and others and this Court has passed an order on 10.04.2017, a copy of which is Annexure SA-1 to the supplementary affidavit. Placing reliance on the certificate dated 31.03.2006, which has been issued by the Nagar Panchayat, Bachhrawan, a copy of which is Annexure-10 to the petition, learned counsel for the petitioner contends that Nagar Panchayat has itself indicated that no house or building was demolished in the encroachment drive conducted by them. He thus contends that it is apparent that the said shops were demolished by the landlord/respondents themselves and not by the Nagar Panchayat.
11. Heard learned counsel for the contesting parties and perused the records.
12. From the arguments as raised by the learned counsel for the contesting parties and perusal of the record, it emerges that an application under Section 21 of the Act, 1972 was filed in the year 2004 by the respondents/landlord which was registered as PA No.1 of 2004. The case was filed before the Prescribed Authority praying for release of two shops under the tenancy of the petitioner herein. During pendency of the aforesaid case itself, the petitioner claims to have filed a civil suit for permanent injunction against the landlord/respondents in which an interim injunction was granted on 01.03.2004. During pendency of the case before the Prescribed Authority, the shops were demolished. There is a dispute as to whether the shops were demolished by the Nagar Panchayat or by the landlord/respondents themselves inasmuch as the petitioner claims that the same were demolished by the landlord while placing reliance on the certificate issued by the Nagar Panchayat while at the same time the contention of landlord/respondents is that they were demolished on account of demolition drive that had been carried out by the Nagar Panchayat which is apparent from a perusal of the Final Report submitted by the Investigating Officer dated 13.06.2006. However, as the same is a disputed question and the proceedings are still pending before the Prescribed Authority, the Court is not going into that aspect of the matter and the same may also not be relevant considering the discussion on ground (b).
13. After the shops were demolished, the petitioner filed an application under Section 29-A of the Act, 1972 praying for a direction to be issued to the landlord/respondents to either have the shops reconstructed or a permission be granted to the petitioner for reconstruction of the said shops. The application has been rejected by the Prescribed Authority vide impugned order dated 23.09.2009 on two grounds as have already been enumerated above.
14. So far as the ground (a) is concerned, as already indicated above, as the proceedings are still pending before the Prescribed Authority the Court is not going into that aspect of the matter as the discussion may not be relevant considering the discussion on ground (b).
15. So far as ground (b) is concerned namely that an application under Section 29-A of the Act, 1972 was not maintainable and the petitioner should have filed a separate application, for the said purpose, the Court would have to consider the provisions of Section 29-A read with Sections 29, 28 and 26 of the Act, 1972.
16. For the sake of convenience, Section 26 of the Act, 1972 is reproduced as under:-
"26. Certain obligations of the landlord and tenant-- (1) No landlord shall without lawful authority or excuse cut off, withhold or reduce any of the amenities enjoyed by the tenant.
(2) The landlord shall be bound to keep the building under tenancy windproof and waterproof and, subject to any contract in writing to the contrary, carry out periodical whitewashing and repairs.
(3) Subject to any contract in writing to the contrary, no tenant shall, whether during the continuance of the tenancy or after its determination, demolish any improvement effected by him in the building or remove any material used in such improvement, other than any fixtures of a movable nature.
1[Explanation. The expression material used in such improvement includes the writing of an electrical fitting or a pipe pertaining to any water connection.] (4) The landlord shall give to the tenant a receipt for rent payable to and received by him."
Section 28 of the Act, 1972 reads as under:-
"28. Enforcement of landlord's obligation regarding repairs, etc. - (1) If the landlord fails to carry out whitewashing or repairs as required by sub-section (2) of Section 26, the tenant may, by notice in writing, call upon him to carry out the same within one month from the date of service of such notice.
(2) Where the cost of the requisite whitewashing or repairs is likely to exceed the amount of 2[two months' rent] in a year, then the tenant in his notice shall also intimate to the landlord his willingness to pay enhanced rent in accordance with the provisions of Section 6:
[* * *] (3) If the landlord fails to comply with the notice, the tenant may himself carry out the whitewashing or repairs at a cost not exceeding 4[two months' rent] in a year and deduct the amount from the rent, and in any such case he shall furnish the account of the expenditure incurred to the landlord.
(4) Where the tenant claims that the building requires whitewashing or repairs to such extent that the cost thereof is likely to exceed the amount of 1[two months' rent] in a year, hereinafter in this section referred to as major repairs , and the landlord either declines his responsibility to carry out the same or fails to comply with the notice, the tenant may apply to the prescribed authority for an order under sub-section (5).
(5) The prescribed authority on receiving an application under sub-section (4) may, after giving an opportunity of hearing to the parties
(a) either reject the application; or
(b) require the landlord to carry out the requisite major repairs within such period as may be specified in the order, and on his failure to do so, permit the tenant to carry out those repairs at a cost not exceeding such amount (which shall not be more than the amount of two years' rent) and within such period as may be specified in the order.
(6) Where in pursuance of an order under sub-section (5) any major repairs are carried out by the tenant, he shall furnish an account of the expenditure to the prescribed authority, which shall certify the amount recoverable by the tenant, and thereupon such amount, unless paid or otherwise adjusted by the landlord, may be deducted by the tenant from the rent in monthly instalments not exceeding twenty-five per cent of one month's rent, and in any such case, the enhancement of rent under Section 6 shall come into effect only from the month following the month in which the cost is fully recovered by the tenant.
(7)- No appeal or revision shall lie from any order of the prescribed authority under sub-section (5) or sub-section (6), which shall be final."
Section 29 of the Act, 1972 reads as under:-
"29. Special protection to tenants of buildings destroyed by collective disturbances, etc. (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 expenses 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."
Section 29-A of the Act, 1972 reads as under:
"29-A. Protection against eviction to certain classes of tenants of land on which building exists. (1)- For the purposes of this section, the expressions tenant and landlord shall have the meanings respectively assigned to them in clauses (a) and (j) of Section 3 with the substitution of the word land for the word building .
(2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof.
(3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply in relation to any land referred to in sub-section (2) as they apply in relation to any building.
(4) The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub-section (5).
(5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in subsection (6) from the date of expiration of the term for which the land was let or from the commencement of this section, whichever is later.
(6)(a) In any suit or appeal or other proceeding pending immediately before the date of commencement of this section, no decree for eviction of a tenant from any land to which this section applies, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of Section 20, provided the tenant, within a period of three months from the commencement of this section by an application to the court, unconditionally offers to pay to the landlord, the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land together with costs of the suit (including costs of any appeal or of any execution or other proceedings).
(b) In every such case, the enhanced rent shall, notwithstanding anything contained in subsection (5), be determined by the court seized of the case at any stage.
(c) Upon payment against a receipt duly signed by the plaintiff or decree-holder or his counsel or deposit in court of such enhanced rent with costs as aforesaid being made by the tenant within such time as the court may fix in this behalf, the court shall dismiss the suit, or, as the case may be, discharge the decree for eviction, and the tenancy thereafter, shall continue annually on the basis of the rent so enhanced.
(d) If the tenant fails to pay the said amount within the time so fixed (including any extended time, if any, that the court may fix or for sufficient cause allow) the court shall proceed further in the case as if the foregoing provisions of this section were not in force.
(7) The provisions of this section shall have effect, notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force.
Explanation. For the purposes of sub-section (6) where a case has been decided against a tenant by one court and the limitation for an appeal therefrom has not expired on the date immediately before the commencement of this section, this section shall apply as it applies to pending proceedings and the tenant may apply to that court for a review of the judgment in accordance with the provisions of this section."
17. From perusal of Section 26 of the Act, 1972 it emerges that there are certain obligations of the landlord and tenant per which no landlord shall withhold or reduce any of the amenities enjoyed by the tenant; the landlord is bound to keep the building under tenancy windproof and waterproof and, subject to any contract in writing to the contrary, carry out periodical whitewashing and repairs.
18. Section 28 of the Act, 1972 provides for enforcement of landlord's obligations regarding repairs i.e. if the landlord fails to carryout whitewashing or repairs as required by sub-section (2) of Section 26 of the Act, 1972, the tenant may, by notice in writing, call upon him to carry out the same within one month from the date of service of such notice and where the cost of the whitewashing or repairs is likely to exceed a certain amount, then the tenant, in his notice, shall also intimate to the landlord his willingness to pay enhanced rent. Where the landlord fails to comply with the notice, the tenant may himself carry out the whitewashing or repairs at a certain cost and deduct the amount from the rent. In case of major repairs if the landlord declines to carryout the same or fails to comply with the notice the tenant may apply to the Prescribed Authority for an order under sub-section (5). The Prescribed Authority on receiving an application under sub-section (4) of this Section i.e. for carrying out major repairs may either reject the application or require the landlord to carryout requisite major repairs within such period as may be specified in the order or permit the tenant to carry out such repairs
19. Section 29 of the Act, 1972 gives special protection to tenants of buildings destroyed by collective disturbances i.e 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 a right to re-erect it wholly or partly at his own expense within a period of six months from such injury. However, in case of fire, tempest, flood or excessive rainfall if a building under tenancy is wholly or partly destroyed the tenant shall have the right to re-erect or repair it wholly or partly at his own expense after giving a notice in writing to the landlord within one month from such injury.
20. Section 29-A of the Act, 1972, gives protection against eviction to certain classes of tenants of land on which building exists. The said provision of law gives the liability of the tenant to pay the landlord such rent as may be mutually agreed upon between the parties or in the absence thereto the rent determined in accordance with sub-section (5). The said Section also provides for the liability of the tenant upon failure to pay the amount.
21. Thus, from a perusal of Section 29-A of the Act, 1972, it is clearly apparent that in case of demolition of a building under tenancy, no application can be filed by the tenant praying for direction to the landlord for reconstruction of the building or for the tenant to be granted permission to carryout reconstruction. Thus, it is apparent that once Section 29-A of the Act, 1972, itself does not provide for filing of an application for re-building of a demolished building under tenancy consequently the application filed by the petitioner under the provisions of Section 29-A of the Act, 1972 was clearly not maintainable and as such there is no illegality or infirmity in the order impugned dated 23.09.2009.
21. Even if the provisions of Section 28 read with Section 26 of the Act, 1972 are considered and the word 'repair' as indicated in Section 28 of the Act, 1972 is seen in the context of Section 26 of the Act, 1972, the said 'repairs' as used in Section 28 of the Act, 1972 would only be confined to the provisions of Section 26(2) of the Act, 1972 whereby the landlord is required to keep the building under tenancy windproof and waterproof and, subject to any contract in writing to the contrary, carry out periodical whitewashing and repairs. It is not the case in the present matter that the landlord had failed to carry out any whitewashing, repairs or had failed to keep the shops under tenancy windproof or waterproof rather the shops itself have been allegedly demolished.
22. Incidentally, the Apex Court in the case of Trust Jama Masjid Waqf No.31 vs. Lakshmi Talkies and others - (2010) 9 SCC 78 while considering the provisions of Section 29-A of the Act, 1972 has held that for applicability of Section 29-A of the Act, 1972, two conditions must be satisfied namely (i) that the land alone has been let out, and (ii) that permanent structure has been constructed by the tenant with landlord's consent incurring his own expenses.
23. In the instant case, it is not the case of the petitioner that the two conditions were fulfilled namely that it is only the land that had been let out to the tenant/petitioner rather from the facts on record, it clearly emerges that two shops were let out to the petitioner. Further it is not the case of the petitioner that the shops were constructed by the tenant/petitioner with the landlord's consent incurring his own expenses. Consequently, the provisions of Section 29-A of the Act, 1972 are clearly not applicable upon the tenant/petitioner in the facts of the instant case.
24. So far as the judgments, as have been referred by the learned counsel for the petitioner are concerned, none of the judgments deal with the provisions of Section 29-A of the Act, 1972 and thus have no applicability in the facts of the case already enumerated above.
25. Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the petition is dismissed.
Order Date :- 22.11.2022 A. Katiyar