Durga vs IVth Additional District Judge and Others

Vikram Nath, J.—This writ petition has been filed by the tenant for quashing the order dated 17.8.1982 and 26.5.1994 passed in proceeding u/s 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred as the Act) whereby the application of landlord (respondents 3 to 5) for release of the shop in dispute was allowed and the petitioner was directed to be evicted.

The dispute relates to a shop situate in Mohalla Vankhandi Vrindavan, district Mathura described at the foot of the release application (hereinafter referred to as the premises in dispute). The respondents 3 to 5 are the owners and landlord of the shop in dispute and the petitioner was tenant. The landlord filed an application u/s 21 (1) (a) of the Act setting up the need of respondent No. 5 Madan Mohan to set up business of stationery. It was further alleged that Madan Mohan was physically handicapped and had been playing the part of Jokar in "Ras Mandali". On account of his age wanted to settle and for his livelihood wanted to set up a business of stationery. As the landlords had no other shop, the release application was filed.

The release application was contested by the petitioner on the ground that the application had been filed mala fide only to oust the petitioner. Both the parties led evidence in support of their contentions. The Prescribed Authority, vide order dated 17.8.1982 held that the need set up by the landlord was genuine and bona fide and in case the shop in dispute was not vacated, the landlord will suffer greater hardship. The appeal filed by the tenant-petitioner was dismissed vide judgment dated 26.5.1994 and the findings recorded by the Prescribed Authority, were affirmed. Aggrieved by the same, the present writ petition has been filed by the tenant.

During the pendency of the petition, Madan Mohan respondent No. 5 died on 29.5.1998.

I have heard Sri Atul Dayal, learned Counsel for the petitioner and Smt. Sunita Agarwal, learned Counsel for the respondent-landlord.

The contention of Sri Atul Dayal, learned Counsel for the petitioner is that since Madan Mohan was unmarried and obviously had no children and therefore, the need set up in the release application for running stationery shop from the premises in dispute stood completely vanished after his death. This subsequent development during the pendency of the writ petition, be taken into consideration and in view of the fact that the need has vanished, therefore, the writ petition deserves to be allowed and the heirs of Madan Mohan may set up their own need either by means of amendment or by filing a fresh application. It is further contended that this is exactly what is provided in Section 21 (7) of the Act, which read as under:

(7) Where during the pendency of an application under Clause (a) of subsection (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased.

Smt. Sunita Agarwal appearing for the landlord-respondent has contended that need set up on the date of the application allow is to be seen and that the application having been allowed by both the Courts below, the writ petition deserves to be dismissed being concluded by concurrent finding of fact. The further contention of learned Counsel for the respondent is that the orders passed by the Prescribed Authority, and the Appellate Authority amount to a decree of a Civil Court as defined u/s 2(2) of the C.P.C. Her contention is that the need set up for Madan Mohan had not vanished but still existed as his heirs could carry on his business. Counsel for the respondent has relied upon the judgment of Supreme Court in case of Kamleshwar Prasad v. Pradu Manju Agarwal 1997 (1) ARC 627 (SC). In the said case where similar situation had arisen that the landlord whose need was set up for running the business, died during the pendency of the writ petition, the Supreme Court held that need could not be said to have lapsed but the business could have been carried on by the widow or any of the sons of the deceased. The case of Supreme Court in the case of Kamleshwar Prasad (supra) cannot be applied in the present case where four landlord jointly filed the application for eviction of the petitioner on the ground that the shop in dispute was required for setting up a business of Madan Mohan alone. Admittedly, Madan Mohan had not married and did not have any children. Madan Mohan was carrying on his business, which could have been carried on by any of his heirs. It was a case of setting of a new business by Madan Mohan. It has been brought on record by way of affidavits that the other landlord could set up business but this fact will need to be investigated and matter will have to be remanded. No formal amendment application has been filed by the landlord but only effort has been made through supplementary affidavit for setting up an additional need. It was open to the landlord either to file a fresh application for setting up a different need or to file amendment application for the said purpose.

Sri Atul Dayal learned Counsel for the petitioner on the contrary has relied upon the following judgment:

Anant Ram Jain v. VIth Additional District Judge, Meerut and Ors. 2004 (2) ARC 179.

Trilok Nath v. Dharam Prakash Gupta and Ors. 2004 (1) ARC 443.

Sardar Gur Charan Singh v. Purshottam Dass 2001 (1) ARC 98.

Nar Singh Das Agrawal (since deceased) now represented by Annapurna Devi and Ors. v. District Judge, Ballia and Ors. 2003 (2) ARC 742.

For the proposition that in view of the development that had taken place during the pendency of the petition, the need of the landlord stood vanished and the writ petition deserves to be allowed, taking into consideration the consequent development. In all these judgments it has been held that the subsequent events can be taken into consideration. In any case Section 21 (7) of the Act clearly postulates that on the death of the landlord for whom need had been set up, the heirs or other landlord will have to set up their own need in view of the changed circumstances and establish it to be bona fide.

I have examined the rival contention and also the relevant authorities. In the facts and circumstances of the present case, the need having vanished the writ petition succeeds and is allowed. It would be open to the landlord to apply for fresh release of the premises on account of any additional/new need that they may reasonably set up.

Since the petitioner is in occupation of the shop for the last 40 years at a monthly rent of Rs. 22/50 paise per month which has not been enhanced for the last 40 years and still wants to continue to retain the possession it would be appropriate that the landlord is suitably compensated by means of enhanced rent which after deliberations is being fixed as Rs. 1,000/- per month with effect from 1.1.2005. The rent will be payable by the 10th of every month in advance. In case any arrears are due the same shall also he paid within two months from today. In the event of default it would be open for the landlords to apply before this Court for withdrawal of the order.

Accordingly writ petition succeeds and is allowed subject to the condition imposed above. The impugned judgments of the Courts below dated 17.8.1982 and 26.5.1994 are set aside and the release application is dismissed. It will be open to the landlord to file fresh application for release.