Jai Prakash Kathpolia vs Smt. Chhama Srivastava

S.U. Khan, J.—Heard learned Counsel for the tenant-petitioner and learned Counsel for landlady-respondent who has filed his vakalatnama.

Landlady-respondent initiated eviction/release proceedings against tenant-petitioner u/s 21 Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 on the ground of bonafide need in the form of P.A. case No. 41 of 2003. Landlady also determined the tenancy of the petitioner through notice u/s 106 of Transfer of Property Act which was served upon the tenant on 6.10.2003.

Thereafter SCC suit No. 55 of 2004 was also filed by the landlady against tenant on the ground of default in payment of rent. Suit was decreed, revision was dismissed, writ petition was also dismissed on 8.11.2005 (writ petition No. 67097 of 2005). Against the judgment of the High Court SLP No. 3548 of 2006 has been filed by the tenant before the Supreme Court in which through order dated 12.5.2006 eviction of the tenant has been stayed.

Release application u/s 21 of the Act (P.A. Case No. 41 of 2003) which was filed on 4.9.2003 was allowed by Prescribed authority on 3.4.2006. Against the said order petitioner has filed Rent Control Appeal No. 106 of 2006. In the said appeal on 9.5.2008 i.e. after about two years of filing of the same, an application was filed before the appellate court to the effect that appeal must be allowed on the ground that after termination tenancy petitioner became statutory tenant hence release application u/s 21 of the Act was not maintainable. In the said application it was also prayed that the matter must be referred to the High Court u/s 113 C.P.C.

The court below/Additional District Judge, Court No. 2, Allahabad rejected the application through order dated 3.7.2008 which order has been challenged through this writ petition.

Learned Counsel for the petitioner has argued that the application on which impugned order was passed was in the nature of preliminary objection. Usually preliminary objections are raised by the respondents and not by the appellants.

There is absolutely nothing wrong in filing release application on the ground of bonafide need u/s 21 of the Act after determination of the lease. It is another matter that even without determination of the lease release application may be filed by virtue of Section 21(4) of the Act which is quoted below:

An order under Sub-section (1) or Sub-section (1-A) or Sub-section (2) may be made notwithstanding that the tenancy has not been determined.

Provided that no such order shall be made in the case of a tenancy created for a fixed term by a registered lease before the expiry of such term.

u/s 21(6) of the Act it is provided that on the expiration of the period of 30 days from an order under sub Sections (1), (1-A) or (2) tenancy of the tenant stands determined.

Learned Counsel for the petitioner has argued that release application u/s 21 of the Act can be filed only against contractual tenants and not statutory tenants. Under the definition of tenant given u/s 3(a) of the Act no such distinction has been drawn.

Earlier Supreme Court in Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, and Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, had held that a statutory tenant i.e. a tenant whose tenancy had been terminated, had no estate or interest in the premises but only a personal right to remain in occupation. However, the said view was strongly dessented from in Damadilal and Others Vs. Parashram and Others,

Thereafter Supreme Court in Constitution Bench authority of Gian Devi Anand Vs. Jeevan Kumar and Others, approved the view taken in Damadilal (Supra). The contrary view which had also been taken in Ganpat Ladha Vs. Sashikant Vishnu Shinde, was expressly over ruled. In para-35 of the Constitution Bench judgment it has been held as follows:

These decisions correctly lay down that the termination of the contractual tenancy by the landlord does not bring about a change in the status of the tenant who continues to remain in possession after the termination of the tenancy by virtue of the provisions of the Rent Act.

The following authorities cited by learned Counsel for the petitioner have got no application:

Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others,

1983 A.R.C. 485

1984(2) A.R.C. 27

Gagandeep Pratishthan Pvt. Ltd. and Others Vs. Mechano and Another,

Even otherwise, acceptance of argument of learned Counsel for the petitioner will not make any difference.

Statutory tenant means a tenant whose tenancy has been terminated but his possession is protected by the Act. In the instant case the Act prescribes for eviction of the tenant in case need of the landlord is bonafide i.e. through release application u/s 21 of the Act. Accordingly on proof of bonafide need of the landlord protection granted to the tenant by the Act stands withdrawn rather eviction is mandated.

Accordingly, I do not find any error in the impugned order. Writ petition is dismissed.

Property in dispute contains four rooms and is situate in R.A. Bazar, Allahabad City. Rent of Rs.207- per month (according to the learned Counsel for the tenant-petitioner) is virtually as well as actually no rent.

Accordingly, it is directed that until disposal of appeal eviction of the tenant in pursuance of the release order challenged in the appeal shall remain stayed provided that with effect from August 2008 onward rent/damages for use and occupation at the rate of Rs. 1,500/- per month is deposited before the appellate court for immediate payment to the landlord by 7th of each succeeding month. In case of default tenant should be evicted through application u/s 23 of the Act.

This direction is being issued in view of Supreme Court authority reported in Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd.,