Awadhraj Singh vs 1st Additional District Judge, Gorakhpur and Others

Sibghat Ullah Khan, J.

Heard Sri R.K. Saxena, learned counsel for tenant petitioner and Sri Vishnu Pratap, learned counsel for landlord respondent No.3/1.

This writ petition was dismissed in default on 17.01.2001. Thereafter, it was restored. It was again dismissed in default on 16.04.2004 and again restored. It was again dismissed in default on 01.07.2008. Again restoration application was filed which was dismissed in default. Thereafter, another restoration application was filed. All the restoration applications were allowed on 31.05.2013 and on that date arguments of learned counsel for both the parties on the merit of the writ petition were also heard.

This is tenant''s writ petition arising out of eviction/release proceedings on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) hereinafter referred to as U.P. Rent Control Act initiated by Ram Lakhan Jaiswal, original respondent No.3 since deceased and survived by legal representatives against petitioner and proforma respondents No.4 to 8 in the form of P.A. Case No.68 of 1982. Prescribed Authority, Gorakhpur allowed the release application on 06.02.1984 and directed eviction of the tenant. Against the said order, petitioner filed Misc. (Rent) Appeal No.101 of 1984. First A.D.J., Gorakhpur dismissed the appeal on 18.09.1986, hence this writ petition.

Original Respondent No.3, Ram Lakhan, who filed the release application was owner of the property in dispute. He created a trust of the property in dispute through deed dated 11.06.1982. Sri Ram Lakhan died in 1987 during pendency of the writ petition. The trust deed is Annexure1 to the counter affidavit.

The first point argued before the courts below and repeated before this court was that through deed dated 11.06.1982, trust was to come into existence after the death of the executant of the deed as it was in the nature of Will. The courts below did not accept this argument. I am also unable to accept this argument. In the deed dated 11.06.1982, it was mentioned that the executant had no issue, his wife had died about three months before, hence he wanted to make such arrangement of his property which could be in the nature of religious and charitable purpose. It was specifically stated that the executant intended to construct hospital, school and dharmshala over his property for serving the humanity, and that it was also the last desire of his deceased wife. He appointed certain person to be the trustees after his death. He described the deed as will (ichhapatra). He further mentioned that whatever further property would be acquired by him until his death would also be reserved for he same purpose. Thereafter, it was mentioned in the present tense that whatever property he has or he acquires subsequently is being given to the trust and is being transferred (to trust). The only restriction was that until his death the executant was to manage the trust and after his death, the trustees.

In the release application, the need set up was for constructing dharmshala and hospital. It was argued that under Section 21 of the Act such type of need was not recognized. However, this argument is not tenable. Section 21(1)(a) uses the words "........... or where the landlord is the trustee of a public charitable trust, for the objects of the trust." Hospital was object of the trust.

Property in dispute is House No.607, Dilezakpur, Gorakhpur having six rooms, total area is 200 square yard and rent is Rs.25/ per month. The deed dated 11.06.1982 is a registered deed.

It was stated in the release application that the building in dispute was in a dilapidated condition and after demolition new construction would be made and an application for getting the map passed had also been filed. Even though clause (b) was also mentioned in the release application but in fact it was under Clause (a) to Section 21(1) of the Act. Clause (a) states that "the building is bona fide required either in its existing form or after demolition and new construction by the landlord." It is wrong to say that an application under both the clauses (a) and (b) of Section 21(1) is maintainable. Under clause (b) bona fide need has got no relevance. The release application was filed by the landlord respondent No.3 under Clause (a) alone.

Accordingly, there is absolutely no error in the finding of bona fide need recorded by both the courts below in favour of landlord respondent.

The tenant could not show that he made any efforts to search alternative accommodation. The Supreme Court in "Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada" AIR 2003 SC 2713 has held that if alternative accommodation is not searched by the tenant, balance of hardship tilts against him. This writ petition itself remained pending for more than 25 years. It was dismissed in default thrice and every time restoration application was filed, hence landlord could not recover the possession.

Accordingly, I do not find least error in the impugned orders.

While dismissing the writ petition in default for the last time on 01.07.2008, I passed the following order:

"List revised. Sri A.K. Gupta, learned counsel for the respondent is present. No one appears for the petitioner. Accordingly, writ petition is dismissed in default.

Stay order stands automatically discharged.

Sri A.K. Gupta, learned counsel states that for a very long time, tenant has not paid any rent. From today, till actual vacation in proceedings under Section 23 of U.P. Act No.13 of 1972, tenant petitioner shall be liable to pay Rs.1000/ per month."

While reserving the judgment on 31.05.2013, following order was passed:

"All the restoration applications are allowed.

Heard Sri R.K. Saxena, learned counsel for petitioner and sri Vishnu Pratap, learned counsel for respondent No.3/1.

Judgment reserved.

Sri Saxena, learned counsel has stated that in case matter is decided in favour of the petitioner, petitioner is ready to pay reasonable rent, which may be fixed by the court. There are six rooms in the house in dispute, rent of which is Rs.25/ per month.

Sri Chandra Prakash Gupta, learned counsel is also present and states that he has filed impleadment application on behalf of Anup Kumar Jaiswal and Alok Jaiswal. He further states that on 06.12.2001 he had filed substitution application on behalf of these two persons.

However, on inquiry from court that in case impleadment application is allowed, what argument he would raise on merit in the writ petition, Sri Chandra Prakash Gupta is unable to give any reply. His only argument is that Ram Lakhan Jaiswal had executed a Will in favour of Bhaiya Lal Jaiswal and Lilawati, the mother of the applicants, Anup Kumar Jaiswal and Alok Jaiswal."

As Sri Ram Lakhan had executed trust deed hence even if there was some Will it was meaningless. Accordingly, there is no need to allow the impleadment application. Substitution of Ram Lakhan has already taken place. Rajendra Prasad Gupta and Kishori Chand have been substituted through order dated 11.05.2001. They are the trustees mentioned in the trust deed dated 11.06.1982.

Learned counsel for landlord respondent has cited an authority of this court reported in Nihal Singh Vs. A.D.J., 1978 A.L.J. 892 holding that dharmshala is charitable trust and entitled to maintain application under Section 21 of the Act. One more authority has also been cited, which is reported in Smt. Champa Kunwar Trust Vs. D.J. AIR 1976 All. 252 holding that release application filed by trust for making new construction after demolition is quite maintainable. Some other authorities have also been cited by learned counsel for both the parties, which are not much relevant.

Accordingly, writ petition is dismissed.

Tenant petitioner is granted three months time to vacate on the following conditions.

For this period of three months, which has been granted to the tenantpetitioner to vacate, he is required to pay Rs.3000/( at the rate of Rs.1,000/ per month) as rent/damages for use and occupation. This amount shall be deposited within one month before the Prescribed Authority, Gorakhpur and shall immediately be paid to the landlords respondents.

Within one month from today tenantpetitioner shall file an undertaking before the Prescribed Authority, Gorakhpur to the effect that within three months from the date of this judgment, he will willingly vacate and handover possession of the property in dispute to the landlords respondents.

If within one month undertaking is not filed or the amount of Rs.3000/ is not deposited then from today till actual eviction tenant shall be liable to pay Rs.2000/ per month as rent/damages for use and occupation.

Similarly if after filing undertaking and depositing the aforesaid amount of Rs.3000/ property in dispute is not vacated within three months then since after three months till actual vacation tenant petitioner shall be liable to pay rent/damages @ Rs.2000/ per month.

It is needless to add that this direction of payment of Rs.2000/ per month is in addition to the right of the landlords to file contempt petition and to get the accommodation in dispute vacated through execution under Section 23 of the Act.

Provision for Enhancement of Rent:

Before parting it is essential to notice a great flaw in the U.P. Rent Control Act, which has by passage of time become so unjust and arbitrary that it virtually amounts to confiscation of property without due (virtually nil) compensation. Since September, 1972, U.P. Rent Control Act has frozen rents. By virtue of Section 5 of the Act, landlord could enhance rent by 25% by giving notice within three months from the date of enforcement of the Act (15.07.1972). Thereafter, a private landlord cannot enhance the rent of the tenanted building in possession of a private tenant. There are only two provisions of recurring enhancement of rent. One is Section 9A, which applies to the buildings belonging to Trust and the other is Section 21(8), which applies to the buildings of which Government or Government Corporation is tenant.

The Supreme Court in M.V.Acharya Vs. State of Maharashtra, AIR 1998 SC 602 came down heavily on frozen rents and held that a Rent Control Act not providing for recurring enhancement of rent might be struck down as unconstitutional. Paragraphs 26 to 29 and part of para 30 of the aforesaid Supreme Court authority are quoted below:

"26. It is true that whenever a special provision, like the Rent Control Act, is made for a section of the society it may be at the cost of another section, but the making of such a provision or enactment may be necessary in the larger interest of the society as a whole but the benefit which is given initially if continued results in increasing injustice to one section of the society and an unwarranted largess or windfall to another, without appropriate corresponding relief, then the continuation of such a law which necessarily, or most likely, leads to increase in lawlessness and undermines the authority of the law can no longer be regarded as being reasonable . Its continuance becomes arbitrary.

The Legislature itself, as already noticed hereinabove, has taken notice of the fact that puggrie system has become prevalent in Mumbai because of the Rent Restriction Act. This court was also asked to take judicial notice of the fact that in view of the unreasonably low rents which are being received by the landlords, recourse is being taken to other methods to seek redress. These methods which are adopted are outside the four corners of the law and are slowly giving rise to a state of lawlessness where, it is feared, the Courts may become irrelevant in deciding disputes between the landlords and tenants. This should be a cause of serious concern because if this extra judicial backlash gathers momentum the main sufferers will be the tenants, for whose benefit the Rent Control Acts are framed.

28 In so far as social legislation, like the Rent Control Act is concerned, the law must strike a balance between rival interests and it should try to be just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. When there is shortage of accommodation it is desirable, nay, necessary that some protection should be given to the tenants in order to ensure that they are not exploited. At the same time such a law has to be revised periodically so as to ensure that a disproportionately larger benefit than the one which was intended is not given to the tenants. It is not as if the government does not take remedial measures to try and off set the effects of inflation. In order to provide fair wage to the salaried employees the government provides for payment of dearness and other allowances from time to time. Surprisingly this principle is lost sight of while providing for increase in the standard rent the increase made even in 1987 are not adequate, fair or just and the provisions continue to be arbitrary in today''s context.

When enacting socially progressive legislation the need is greater to approach the problem from a holistic perspective and not to have a narrow or short sighted parochial approach. Giving a greater than due emphasis to a vocal section of society results not merely in the miscarriage of justice but in the abdication of responsibility of the legislative authority. Social Legislation is treated with deference by the Courts not merely because the Legislature represents the people but also because in representing them the entire spectrum of views is expected to be taken into account. The Legislature is not shackled by the same constraints as the courts of law. But it''s power is coupled with a responsibility. It is also the responsibility of the Courts to look at legislation from the alter of Article 14 of the Constitution. This article is intended, as is obvious from its words, to check this tendency, giving undue preference to some over others.

Taking all the facts and circumstances into consideration we have no doubt that the existing provisions of the Bombay Rent Act relating to the determination and fixation of the standard rent can no longer be considered to be reasonable. The said provisions would have been struck down as having now become unreasonable and arbitrary but we think it is not necessary to strike down the same in view of the fact that the present extended period of the Bombay Rent Act comes to an end on 31st March, 1998. The government''s thinking reflected in various documents itself shows that the existing provisions have now become unreasonable and, therefore, require reconsideration. The new bill is under consideration and we leave it to the Legislature to frame a just and fair law keeping in view the interest of all concerned and in particular the resolution of the State Ministers for Housing of 1992 and the National Model Law which has been circulated by the Central Government in 1992."

In Bal Kishan Vs. A.D.J. 2003(2) ARC 545, I made strong recommendation to the U.P. State Legislature to consider for providing a General Provision for enhancement of rent. In Khursheeda Vs. A.D.J., 2004(2) ARC 64 after placing reliance upon the aforesaid Supreme Court authority I held that the writ court while granting relief against eviction to the tenant could enhance the rent to a reasonable extent. Thereafter, in H. M. Kitchlu vs. A.D.J. 2004 (2) A.R.C. 652 I held that while dismissing writ petition of the landlord, rent could be enhanced.

However, now the time has come for providing general provision for enhancement of rent by the court as State Legislature for last several decades has failed in its duty to consider this aspect. Such provision is there in some other States Acts e.g. Bengal and Kerala as noticed by the Supreme Court in Pallawi Resources Ltd. Vs. Protos Engineering Company Pvt. Ltd. AIR 2010 SC 1969 and Seshambal (dead) through L.Rs. v. Chelur Corporation Chelur Building and Ors. AIR 2010 SC 1521.

The most leading authority on this question is reported in Satyawati Sharma (dead) by L.Rs. Vs. Union of India and another, (2008) 5 SCC 287. In the said case, the Supreme Court held that absence of provision of release of tenanted commercial building on the ground of bona fide need of landlord was violative of Article14 of the Constitution of India (Delhi Rent Control Act provided for release of tenanted accommodation on the ground of bona fide need of the landlord only in case of residential buildings). The Supreme Court held that it was a fit case where the court should exercise the legislative powers, which are to be exercised rarely. The Supreme Court accordingly issued direction in the nature of legislative enactment directing that it must be read into/deemed to be included in the Delhi Rent Control Act that landlord can seek release of commercial building also like residential building on the ground of his bona fide need.

In Union of India (UOI) and Anr. v. Raghubir Singh (Dead) by Lrs. Etc. AIR 1989 SC 1933, the Supreme Court quoting Lord Reid has held as follows:

"There was a time when it was thought almost indecent to suggest that Judges make law. But we do not believe in fairy tales any more."

Accordingly, in my opinion, absence of general provision of enhancement of rent in U.P. Rent Control Act is such an alarming and rarest of rare situation that court has got no option except to exercise the powers akin to law making power and to provide general provision for enhancement of rent.

I have decided several thousand rent control writ petitions and in several hundred writ petitions, the rates of rent particularly in big cities like Kanpur, Lucknow, Allahabad etc. specifically Kanpur, the most expensive city of U.P. were less than Rs.100/ per month even for shops. In some cases, rates of rent were Rs.25/, 20/, 15/ or even Rs.10/ per month for residential or commercial accommodations. Recently I decided a case where a tenanted accommodation situate in Lucknow, capital of U.P. was carrying a rate of rent of Rs.8/ per month and the tenancy was continuing since 1930 (Rent Control No.126 of 1998, J.P. Tiwari Vs. A.D.J., decided on 01.08.2013). In the instant case also, a building having six rooms situate in Gorakhpur City is carrying a rent of Rs.25/ per month.

Accordingly, on the analogy of Section 21(8) of the U.P. Rent Control Act, it is directed that henceforth any landlord of a building which is carrying less than Rs.2000/ per month rent may file an application before the R.C. & E.O. (Delegatee of the D.M.) for enhancement of rent against a private tenant also. If such an application is filed, the rent to be enhanced by R.C. & E.O. shall be determined exactly on the same formula as is provided under Section 21(8) of the Act, however it is provided that under no circumstances, the rent shall be enhanced to more than Rs.2000/ per month, which is the upper limit of the rent for the buildings to remain within U.P. Rent Control Act by virtue of Section 2(1)(g) of the U.P. Rent Control Act. It is further directed that if such an application is filed and rent is enhanced, then for ten years from the date of filing of application, landlord shall not be entitled to file application for release on the ground of bona fide need.