Kailash Nath Bajpai vs Chandra Shekhar Singh and Another

S.P. Srivastava, J.—Heard the counsel for the Petitioner and Sri K.M. Dayal, Senior Advocate representing the landlord-Respondent.

Feeling aggrieved by an appellate order passed In the proceedings u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred lo as the Act) where under the appellate authority after setting aside the order of the prescribed authority rejecting the application for release of the accommodation In dispute under the tenancy of the Petitioner had granted the release sought lor, the Petitioner-tenant has now approached this Court seeking redress praying for the quashing of (he appellate order.

From the perusal of the record, it appears that the landlord-Respondent had filed the application seeking release of the accommodation in dispute asserting that the said accommodation had initially been let out to Manna Lai, the father of the tenant Petitioner for a non-residential purpose and was being utilized as such for the manufacturing of wooden ''payas'' for beds etc. by power driven machines. After the death of Manna Lai the said premises were continued to be utilized for non-residential purposes. It was further asserted that the accommodation in dispute having two rooms was required for setting the eldest son of the landlord who is a doctor in medical practice who wanted to run his clinic therein. It was also asserted that the third son of the landlord who was studying In M.B.B.S. third year also required to be settled and join the clinic of his elder brother.

The aforesaid application was contested by the tenant-Petitioner asserting that the need set up for the release in question was neither bona fide nor genuine nor pressing as claimed. It was also asserted that Sri Manna Lai was not utilizing the accommodation in dispute for a non-residential purpose and that the said accommodation was throughout being utilized for residential purpose alone. The tenant-Petitioner also claimed that the application for release was not maintainable in view of the proviso to Section 21(1) of the Act which prohibited entertainment of an application for release u/s 21(1) of the Act in the case of any residential building for occupation for business purposes. In this view of the matter it was asserted that since the release application itself was not maintainable and the need of the landlord was neither bona Jide nor genuine or pressing the question of comparison of relative hardships did not arise at all. In the written statement filed by the tenant-Petitioner it was stated that he was doing business of sale and purchase of woods but the place of business was shown to be different than the accommodation in dispute.

The prescribed authority came to the conclusion after taking into consideration various documentary evidence on record that a portion of the disputed accommodation was being utilized for residential purposes. However, the prescribed authority did not accept the claim of the landlord that the need for the accommodation in dispute was genuine, bona fide and pressing. It may be noticed that during the pendency of the proceedings the landlord had offered an alternative accommodation for being utilized for residential purposes to the Petitioner but that offer was not taken into consideration holding that it was an after thought and was not bona fide one. It was also observed that the tenant-Petitioner was suffering from hyper-tension and the accommodation which had been offered being situated on the first floor, it may prove harmful to the tenant as he will have to go upstairs. On the aforesaid findings the release application was rejected.

The appellate authority, however, after an appraisal of evidence and the materials on record came to the conclusion that the need for settling the eldest son of the Petitioner in the premises In dispute for utilizing the same as a clinic was bona Jide, genuine and pressing. The appellate authority also recorded a finding that considering the affidavits of the landlord dated 25.8.92 and 4.3.93 which had been ignored by the prescribed authority, it was clear that initially the accommodation in dispute had been let out for a business purpose and was being utilized for the manufacture of wooden payas" and later on the Petitioner himself started motor repair work In the said premises and it was thereafter that the purpose was changed to residential one, and in the circumstances the prohibition contemplated under the proviso referred to herein above could not be deemed to have been attracted. The appellate authority also recorded a finding that the offer of the landlord was a bona fide one and the rejection of the said offer by the tenant coupled with the fact that during the pendency of the case the tenant had made no effort to find out any other suitable alternative accommodation clearly indicated that the hardship likely to be suffered by the tenant, in the event of the grant of the application for release was to be lesser as compared to the hardship likely to be suffered by the landlord in the event of the rejection of the application. The appellate authority also set aside the finding of the prescribed authority to the effect that the tenant was suffering from hyper-tension or that it would be harmful for him to climb the stairs and use the accommodation situate at the first floor.

In view of the aforesaid findings on the question of bona fide need and relative hardships which were returned in favour of the landlord, the appellate authority granted the release sought for but did not make the order of release subject to the accommodation offered by the landlord being provided to the tenant.

The learned Counsel for the Petitioner has strenuously contended that the application for release in question was not maintainable and its entertainment stood prohibited In view of the provision contained in Sub-clause (ii) of the third proviso to Section 21(1) which prohibited the entertainment of application for release u/s 21(1) In the case of any residential building for occupation for business purpose. It has been contended that the proposed user of the accommodation in dispute for running a clinic by the eldest son of the landlord who was a qualified doctor was clearly a user for a purpose other than residential one and since the premises in dispute was being used for residential purposes it could not be released for such a purpose. In support of his submission that the user of an accommodation as a clinic has to be treated as a user for business purposes, the learned Counsel for the Petitioner has placed strong reliance on the decision of this Court in the case of Dr. Bashir Uddln v. District Judge. Bulandshahr and Ors. 1978 ARC. 62.

The learned Counsel for the Respondent, however, has urged that even the prescribed authority had recorded a finding that only a part of the premises in dispute was being utilized for residential purposes. It has teen pointed out that the appellate authority however, after taking into consideration the affidavits dated 25.3.92 and 4.3.93 had recorded a clear finding that the premises in dispute had initially been let out for non-residential purposes and was in fact being utilized for a non-residential purposes by the father of the tenant-Petitioner and thereafter by his son also, but subsequently the same was being utilized for residential purposes. His contention is that this subsequent change of user by the tenant of his own volition could not be utilized against the landlord to non suit him on the strength of the bar contained in Sub-clause of the third provision to Section 21(1) of the Act.

I have given my anxious consideration to the aforesaid rival contention.

As observed by this Court in its decision in the case of Prem Prakash Gupta v. IInd Additional District Judge, Allahabad, reported in 1993 (1) ARC 77. taking into consideration the policy and the object behind Section 21 of the U.P. Act No. 13 of 1992 there can be no manner of doubt that the intention has been not to reduce the availability of the residential accommodation. It was pointed out in the aforesaid decision that Sub-clause (ii) of the third proviso to Section 21 prohibits release of any portion of residential accommodation for business purpose. This provision, it was observed, re-enforced the above aspect. However, when an accommodation is let out to a tenant exclusively for non-residential purposes and is utilized by him for such a purpose but at some point of time the user is altered of his own volition in that event, it seems to me the voluntary change of user of the accommodation cannot be permitted to attract the bar envisaged Under Sub-clause (ii) of the third proviso to Section 21(1) of the Act.

In the present case, the premises in dispute had been let out to Manna Lai, the father of the Petitioner for non-residential purposes as found by the appellate authority. Manna Lai had died on 1.2.85 as admitted by the tenant-Petitioner in his written statement. The appellate authority has found relying upon the affidavits to which a reference has already been made above that Manna Lai was utilizing the premises in dispute for business purposes. It has also been found that even the tenant-Petitioner had utilized the same for nonresidential purposes but later on It was being utilized for residential purposes. The prescribed authority has observed that only a part of the accommodation was being utilized for residential purposes. In such circumstances, It seems to me, that the unilateral change of the user as claimed", specially when there is nothing on the record to indicate that the landlord has allowed It to be so changed giving his written consent as contemplated u/s 20(2) of Act ; cannot come to the rescue of the tenant-Petitioner and the contention that the application could not be entertained on account of the prohibition referred to hereinbefore is untenable in law and the plea in this regard was rightly rejected by the appellate authority.

It may further be observed in this connection that in face of the statutory prohibition contemplated u/s 20(2) of the Act any change of user of the accommodation without the consent in writing of the landlord cannot be taken notice of in the proceeding u/s 21 of the Act and such a defaulting tenant cannot be permitted to raise such a plea having himself violated the statutory provision contemplated u/s 20(2) of the Act indicated above.

No other point has been pressed.

It may however, be noticed that during the hearing of this writ petition, the landlord-Respondent filed an affidavit reiterating his offer given by him before the Respondent-authorities for providing the alternative accommodation to the Petitioner in the same building in the first floor thereof. Sri S.M. Dayal, learned Counsel for the Petitioner has stated that the offer given by the landlord in respect of the alternative accommodation is acceptable to the Petitioner in case the application filed by the landlord is found to be maintainable. The appellate authority in its impugned order, had, while granting the release sought for observed that in case the tenant wanted to reside in the first floor portion offered by the landlord the said facility shall be provided to him by the landlord but the order of release will not be subject to such condition.

On the findings recorded by the appellate authority which are based on appraisal of evidence and do not appear to be vitiated In law, no justifiable ground has been made out for interference in the impugned order of release while exercising the extraordinary jurisdiction envisaged Under Article 226 of the Constitution of India. However, considering the facts and circumstances as brought on record, it is necessary to ensure that the alternative accommodation offered by the landlord to the Petitioner-tenant is made available to him.

In this view of the matter, the writ petition is dismissed subject to the direction that the prescribed authority while executing the order of release shall ensure that the Petitioner tenant is put in possession over the alternative accommodation offered by the landlord to him, the rent in respect whereof unless agreed upon shall be the standard rent contemplated u/s 21(2) of the Act.

There shall be no order as to costs.