Kalpnath Pandey vs XI Addl.District Judge, Lucknow and others

Hari Nath Tilhari, J.—This petition is directed against the order dated 1091991, passed by the Prescribed Authority (5th Addl. Civil Judge, Lucknow), whereby the Prescribed Authority has allowed the application of the oppositeparties for release under Section 21(1) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 i.e. U.P. Act No. XII of 1972 (hereinafter referred as Act No. XIII of 1972), ordering the eviction of the petitioner, in pursuance of release order referred to above, from accommodation, of house no. 510/138, New Haiderabad Mahanagar, Lucknow, as affirmed by XIth Additional District Judge, Lucknow by order dated 20th November, 1991, passed in R. A. No. 46 of 1991 (Kalpnath Pandey v. Smt. Mariyam and others), whereby the learned Additional District Judge had dismissed the appeal of the petitionertenant.

I have heard Sri, N.N. Jaiswal, learned Counsel for the petitioner and Sri Yogesh Misra, learned Counsel for the oppositeparties at length.

Learned Counsel for the petitioner Shri Nirankar Nath Jaiswal made the following submissions:

(a) That the order impugned which had been passed without affording him sufficient opportunity of adducing evidence in support of his defence to the petitionertenant and that the case has been decided against him without giving him proper and full hearing.

Sri Jaiswal submitted that the case which was pending earlier in the Court of I Additional Civil Judge, Lucknow, had been transferred to the Court of V Additional Civil Judge, Lucknow but no notice was issued to the petitioner from that Court about the hearing of the case nor was the petitioner given an opportunity to lead his evidence, as well as the petitioner''s application C25 whereby the petitioner had raised the question of nonmaintainability of the application for release under Section 21 of the Act was disposed off and as said application has not been disposed off by the Prescribed Authority, he could not get opportunity to file his evidence in support of his defence. Shri Jaiswal further submitted that the order of release has been passed on the ground that as Shri Pramod Kumar and Vinod Kumar, two sons of the petitioner had acquired the accommodation in Kursi Road Yojna Vikas Nagar, Aliganj, Lucknow in which there resides a tenant on monthly rent of Rs. 250 and such petitioner''s objection to release was not maintainable and the finding that landlords'' need was bonafide arrived at ex parte without providing the petitionertenant opportunity of hearing and leading evidence by the Prescribed Authority as well as by the Appellate Court while disposing of the release application or the appeal itself. According to the contention of the learned Counsel Shri Pramod Kumar and Viood Kumar, the two sons of the tenantpetitioner were major who had acquired the accommodation and, therefore, the acquisition of accommodation by them could not be taken into consideration while disposing of the application under Section 21 of the Act. That explanation was wrongly applied and the petitioner was illegally denied right of defence and objection by misapplication of Explanation to Section 21(1) of the Act.

Shri Jaiswal contended that explanation to Section 21(1) is a provision of the nature which has civil consequence and has to be interpreted in consonance with object, letter and sprit of the provision, Act and its Scheme and considered in that context. Shri Jaiswal submitted that the intention of legislature is that the other accommodation acquired either by the tenant or the member of his family as mentioned in the Explanation to the Subsection 1 of Section 21 of the Act should be one that may be sufficient to provide residential accommodation to accommodate the family of the tenant. It is only in those cases the objections are not to be heard and his further submission is that the learned Prescribed Authority and the learned Additional'' District Judge did not consider this aspect of the matter while disposing of the release application or the appeal. In this connection, Shri Jaiswal also made a reference to rule 16 (c) of the Rules framed under the Act as well.

Shri N.N. Jaiswal, learned Counsel for the petitioner further contended that no new accommodation has been acquired or built by the petitioner & accommodation, if any, has been acquired by Pramod Kumar or Vinod Kumar could not form the basis or ground for depriving the petitioner (tenant) of his right to file objection to the release application moved by landlord as the two sons aforesaid are not and can''t be said be wholly dependent on petitioner. Shri Jaiswal submitted, in the explanation, in order to deprive the tenant of his right to object against release application on the ground of the building up or acquisition of residential building, both conditions must coexist i.e. member must be one who has been one who has been normally residing with the tenant and must be wholly dependent on him. and here expression ''or'' connotes the sense of �and�.

Shri Yogendra Misra, learned Counsel for the oppositeparties, denied and challenged Sri Jaiswal''s contention and he contended, firstly, that the orders impugned do not suffer from any error of law or jurisdiction. The Prescribed Authority as well as the learned Appellate Authority have, after considering the material on record, recorded the clear concurrent findings of fact to the effect that the oppositeparty landlord has got. bonafide and pressing need for the accommodation and have further recorded the finding that balance of convenience, comparative hardship lies in favour of the landlord i.e. in case the application is rejected, the landlord will have to suffer irreparable loss in comparison to the tenant as his two sons have acquired two separate accommodation in Avas Evam Vikas Parishad, Kursi Road, Lucknow.

Shri Mishra argued that in view of explanation to Section 21(1) of the Act, petitioner''s objection against release application was not entertainable as Sri Pramod Kumar & Vinod Kumar, the two sons of petitionertenant had acquired house nos. 4/824, and 4/825, Kursi Road, Scheme Vikas Nagar, Aliganj, Lucknow and that ''or'' is disjunctive expression as used in explanation and can''t be read as ''and'' as suggested by the petitioner''s learned Counsel.

He further submitted that the petitioner has nowhere taken that plea by filing reply to the replication that the accommodation acquired by sons was not available to the petitioner to shift therein. His contention further has been that the accommodation with tenant and his sons is not insufficient one. That the learned Prescribed Authority and the learned District Judge committed no error of law or jurisdiction in holding that petitioner will not suffer any hardship greater tl an that of the landlord. His further contention has been that the tenantpetitioner had not made any effort to find out any accommodation for himself, so orders impugned did not suffer from error of law or jurisdiction. I have applied my mind to the contentions of the learned Counsels for the parties as well as I have gone through the record.

That as regard the first contention of the petitioner to the effect that he was not given sufficient opportunity to produce his evidence and defence, the learned Appellate Court has well considered that matter and has referred to the ordersheet w.e.f. the date i.e. 31791 and has observed that the case of petitioner i.e. appellant before the learned District Judge was wrong, as per record, that he had no information of the case having been transferred to the Court of V Additional Civil Judge, Lucknow. The learned District Judge has in his order taken the view and has observed that from the ordersheet dated 31791 it appears that in the presence of the Counsels for the parties the case had been transferred to the Court of Vth Additional Civil Judge, and was argued as well on 6991 before it.

The learned lower Appellate Court after having recorded the above finding has rejected the tenantappellant''s contention before it that he could not get the opportunity to file the evidence and was deprived of the opportunity of producing the evidence. The learned lower Appellate Court observed that if the tenant appellant before him, would have desired to adduce or produce the evidence in support of his case he could well have produced his evidence in the Court on 2191 or thereafter but he did not produce either any objection or any evidence in support of his claim. The learned court below further observed that in respect of application Ga 25, the Prescribed Authority had, vide its order dated 27191, had ordered that the said application shall be decided alongwith the case on merits.

Pausing for a moment on this aspect of the matter, I find that the learned District Judge did not act in accordance with the established doctrine to the effect that hearing is the rule and for the fault on the part of the Court, nobody or say, no party should be made to suffer. So far as the question whether the petitioner could have filed the evidence by itself earlier than 31791 or earlier to 6991 is concerned, perusal of the ordersheet leads me to think that the learned, lower Appellate Court did not apply its mind to the facts narrated in that ordersheet as well as to the question whether during the period the lawyers'' strike was going on it would have recorded any evidence or would have entertained or could a person, not well versed with intricacies of the law, himself file any affidavit.

A perusal of ordersheet dated 24191, which was the date fixed by the Court for producing of the evidence of the oppositeparties vide order dated 2191, shows that the lawyers had gone on strike and so the case had been fixed for 22291 for the evidence of oppositeparties. That ordersheet of22291, per se shows that the strike of the lawyers had continued. No doubt, parties were present, the lawyers being on strike the case had been adjourned for 223 91 for oppositeparties'' evidence. Ordersheet of 22391 further indicates that case was adjourned for 9491 for the production of evidence of oppositeparties and on 9491 as the lawyers were again on strike. On 9491, as per ordersheet, an application Ga 23 was moved for the amendment of the release application and the amendment was allowed on payment of costs of Rs. 30 and seven days'' time was allowed for paying costs and incorporating the amendment. The order further provided opposite parties may file additional written statement, if he so desired and fixed 8591 for the disposal of the application Ga25. and it was provided that objection if any, may be filed, by 8591. The ordersheet further reveals that it was provided after the filing of the objection to the application Ga25, the application Ga25 shall be putup for disposal on 15591.

It may be mentioned here, the application Ga25 has been the tenant''s application to the effect that the application under Section, 21 of the Act was rot maintainable on the grounds mentioned in that application. By that application, the preliminary objection was raised by the tenant to the effect that application for release in the present case was not maintainable and the said application was directed to be listed for disposal on 15591. On 15591 again the lawyers were on strike and, therefore, case was fixed for disposal of C25 on 30591. On 30591 no objection by that date having been filed to the tenant''s application C25, the Court fixed 31791, for disposal of that application C25 i.e. the preliminary objection to the effect that application under Section 21 was not maintainable. There is no doubt that case was transferred to the Court of V Addl. Civil Judge, Lucknow under the orders of learned District Judge dated 20791 as per ordersheet dated 31791 and to the notice of both the parties and both the parties are present on 31791.

The position thus appears to be that application C25 was directed to be fixed for disposal of preliminary objections against release application and without disposal of that application, the case had been transferred to the Court of V Addl. Civil Judge, Lucknow. The order sheet dated 27891 indicates that objection C31 to the application C25 was filed on that date and the Court deferred the disposal of C25 and with reference to application C25 i.e preliminary objection, that had been raised as to the maintainability of the application for release under Section 21 of U.P. Act No. XIII of 1972, the Court directed and ordered �it shall be looked into at the time of disposal of application on merits, and fixed 6991 for arguments.�

Ordersheet dated 6991 only mentions �Heard arguments. Judgment reserved.�

A perusal of the ordersheet on various dates annexed with the writ petition and in particular, order sheet dated 27891 as well as 6991 leads me to think & opine that the learned Addl. Civil Judge did not act judiciously and with due application of mind when he disposed of the release application and reason for so opining is indicated hereafter. That the ordersheet indicates on various dates, the dates were fixed for disposal of application C25 whereby the Court indicated its intention to dispose of the preliminary objection fixed the dates therefor. On 27891 when objection had been filed against C25 by the landlord and the question about the maintainability of application under Section 21 of the U.P. Act No. XIII of 1972 has been pending before the Court and the petitioner was; always given impression that his application is to be disposed off, the petitioner did not commit any mistake by not filing any written statement against the application under Section 21 of the Act, till any order on the petitioner''s application C25 was passed, either disposing of his objection or issuing direction to the effect that preliminary objection shall be disposed of while finally disposing off the application for release. That when the court on 27891 passed this order that the application shall be disposed of along with release application on merits it was the duty of the Court i.e. the Prescribed Authority to have given sufficient opportunity to the tenantpetitioner to file the written statement. It should have specifically provided in the order while it had provided that C25 will be disposed of alongwith application for release on merits that the petitionertenant should file written statement and should have fixed some dates for filing of written statement because it is open to oppositeparties to raise preliminary objection. It is open to tenantpetitioner while raising preliminary objection to file detailed writtenstatements or not, as he thought fit, though it would have been proper that instead of filing only the preliminary objection, the petitioner ought to have filed a written statement raising all the pleas including the one challenging the maintainability of the release, application. In any case when the written statement has not been filed and the action of the Court also gave an impression that he had got a right to prefer preliminary objection and that he can wait for the disposal of the same before filing detailed written statement, the interest of justice required that if 6991 had been fixed, it should not have been fixed for arguments. The learned Prescribed Authority should have fixed a date for filing of written statement and for filing of the evidence of oppositeparties and thereafter some dates for hearing of the case on merits, including the question of disposal of preliminary objection. There is no doubt that in fixing the application C25 for disposal along with application for release, the Additional Civil Judge i.e. Prescribed Authority acted in consonance with the principles of law laid down by Supreme Court in Brigadiar Khanna v. Dhillon (1964 Supreme Court page 392) that the preliminary objection and the case on merits should be decided together and until and unless the preliminary objection is of such a nature which raises plea based on pure question of law relating to the jurisdiction of the Court to entertain the same or as to the maintainability of the suit or application or proceeding but if the preliminary objection involves a mixed question of law and fact then it has got to be decided along with merits of the case. That it is pertinent to note that in order to bring the law in consonance with the doctrine laid down by the Supreme Court in the above case an amendment was introduced by the Parliament in the Code of Civil Procedure by Act No. 1C4 of 1976 and interpreting the fame, a Full Bench of this Court in U.P. Sunni Central Board of Waqf v. Gopal Singh Visharad (1990 LCD 417) has laid down the law to the same effect.

The learned trial court committed the material and substantial error of law to the effect that even if it had fixed C25 for disposal along with disposal of release application on merits it did not provide an opportunity to the tenantpetitioner nor did it call upon the tenantpetitioner to file the written statement and to produce evidence in support of his defence. The whole matter and all of sudden the case was fixed for final hearing. Thereafter the court passed the order in the case against the petitioner tenant and ordered the release i.e. passed an order releasing the accommodation in favour of the landlordopposite parties by eviction of the tenantpetitioner. The learned District Judge failed to apply his mind to this aspect of the matter in my view that when lawyers were not prepared to appear in the Court during strike period and the petitioner who is not well acquainted with intricacies of law and could not file the written statement or objection himself and, particularly, in view of the impression to the effect that application C25 has got to be disposed off, there has been nothing to blame the petitioner and on that account no inference adverse to the tenantpetitioner ought to have been raised. This is sufficient ground by itself to quash the order of release passed by the Prescribed Authority as well as that of Appellate Court as the entire proceedings before the Prescribed Authority suffered from violation of principle of natural justice and fair play as well as from the lack of judicious approach on the part of authorities concerned. It is well settled principle of law that no person or party should be made to suffer because of mistake of the Court or judicial authorities acting just like Court as laid down in case of Kr. Preetam v. Kedar Nath (1922 Privy Council page 269 (271) and Jagat Dhish v. Jawaharlal (AIR 1961 Supreme Court 832 (836 para 11 col. 2). That the learned District Judge and Prescribed Authority have dealt with the question of hardship in the case but their approach does not appear to be in consonance with the principle of law.

I may mention at this juncture that if the tenant has got constructed or acquired any alternative accommodation or any member of his family has got or acquired an alternative accommodation, suitable to provide the tenant an accommodation suited to his needs and requirements, in the case the landlord''s additional requirements have to be construed liberally, as per Rule 16(c) of the Rules framed under U.P. Act No. XIII of 1972. Rule 16(c) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 reads as under:

''Rule 16(c)�

''''Where the tenant has, apart from the building under tenancy, other adequate accommodation, whether owned by him or held as tenant of any public premises, having regard to the number of members of his family and their respective ages and his social status, the landlord''s claim for additional requirements shall be construed liberally.�

That Explanation to Section 21(1) of the Act no doubt is described as �explanation� in the Act but it appears to lay down some substantive provision of law as an exception to proviso No. 4 and is limited thereto in its scope with reference to entertainability of tenant''s objection to release application under Section 21 (1) of the Act, Explanation no. 1 is one which explanation per se lays down a rule of evidence as to when and in what circumstances plea of question comparative hardship need not be considered.

Explanation (1) parse appears to lay down the rule that no objection at the instance of tenant to the release application of landlord shall be entertainable in either of the following case:

(a) if the tenant concerned has built or has otherwise acquired in vacant state or has got vacated after acquisition a residential building in the same city, municipality etc. or,

(b) if any member of the tenant''s family who has been normally residing with ''or'' wholly dependent on him has built or otherwise acquired in vacant state or has got vacated after acquisition a residential building in same city etc.

The question in the present case crops up if any one out of three or four sons of a tenant becomes of age, they are employed and married and children are born to them as well and the accommodation in tenancy becomes insufficient and one or two of them move into a separate house in same city to ease the situation or one of the sons gets employment in some factory or organisation located in same city and for the sake of convenience moves into factory quarter provided by employer, irrespective of any such consideration that the family member of the tenant was self earning independent member or person but simply for the reason that prior to acquisition by him a residential accommodation building by him he was residing with the tenant of an accommodation in question, the tenant i.e. father tenant will be debarred from raising an objection to landlord''s release application or we make another instance of divorced daughter or sister living with the tenant who later on either by her own earning or out of the funds provided by her exhusband builds or otherwise acquires some other residential building in same city in vacant state & what will be the state of tenant whether in such a case without any further thing or enquiry the real tenant will be denied his right to contest and to file his objection against the landlords'' release application qua the principal residential accommodation in tenancy. Similarly, if some heirs/sons of a tenant on original tenant''s death succeed to the tenancy rights of their father and become tenant by succession in their own right and live together and later out of them one builds or acquires another residential building or accommodation for his own self and his own family, whether other sons heirs of original tenant, who became tenants in their own right will stand denied the right to contest and to file objection against release application moved by landlord or that the rest of the sons/heirs of original tenant will be thrown on street without opportunity to contest and to object to the release application in view of Explanation to Section 21(1) of the Act, are the question which need be considered.

Whether is it not so that rigour of bar contained in Explanation is limited only to the tenant building or otherwise acquiring a building i.e. residential building for his own self and his family and in the same way bar against tenants'' right to take defence against release application may apply, if any, member of the tenant''s family who satisfies both the conditions i.e. who has been normally residing with the tenant concerned and is and has been wholly dependent on the said tenant, builds or otherwise acquires in same city, town etc. a residential building to suffice the requirement of tenant''s heirs and family, then and then only the tenant''s objection to application for release will not be entertainable.

It cannot be deemed to be the legislative intent to deprive a person rehabilitated in tenanted premises of his right of residence or protection of roof by his eviction without giving him right to object or challenge the landlord''s release application and to place them in unhappy miserable situation irrespective of the fact that he has not the roof to take shelter or abode, simply for the reason that some member of his family normally not residing with him or not wholly dependent on him i.e. on the tenant, buildup or acquires a residential house in same city.

Thus considered in the light of the objective of and purpose of the Act and its Scheme which is one to regulate the letting, rent and eviction of the tenant and to maintain that material resources in the form of residential accommodation may not ordinarily remain concentrated in few hands as well as that the persons rehabilitated be not uprooted irrationally it appears just and proper to read the Explanation to Section 21(1) of Act as mentioned above.

The Expression �or� used in the Explanation after the expression �who has been normally residing with� & before the expression �is wholly dependent of him� is to be read as �and�. That existence of both conditions is essential in case of building up or acquisition of a residential building by a member of family of tenant in same city etc. in order to deny the tenant his right of defence and right to file objection against the landlords'' release application because in such a situation another building built or acquired is to be deemed to be the acquisition by tenant.

It is well settled as observed in the work �The Construction of Statute� by Crawford, at page 322:

�However, word �or� and word �and� are often used interchangeably...... It is proper only in order to more accurately express or to carry out the obvious intent of the legislature .. .....and specially where it will avoid absurd and impossible consequences or operate to harmonize the statute and to give effect to all of its provisions.�

In Maxwells'' Treatise on �Interpretation of Statute XIIth Ed. at page 232 it has been propounded and observed:

�In ordinary usage �and� is conjunctive and �or� disjunctive. But to carry out the intention of the legislature it may be necessary to read �and� in the place of conjunction �or� and vice versa�.

Thus considered in order to make operative said Explanation to Section 21 of Act & the rule provided therein that in the case of a tenant, a member of whose family has built or otherwise acquired any residential accommodation in vacant state or got vacated the residential building acquired by him it is essential to see if the said member had been normally residing with the tenant and has been wholly dependent on such tenant i.e. both the condition will be shown to exist apart from proof of fact that some other residential building or accommodation apart from building in tenancy with the tenant has been constructed or acquired by that member.

The above interpretation placed by me is in consonance with the purpose of the Act and is one which avoids absurd consequence and in conceived hardships as have been indicated by Hon''ble Supreme Court in the case Mohd. Azeem v. District Judge, Aligarh, 1985(2) SCC 350 in the context of a similar provision dealing with deemed vacancy under Section 12 (3) of the Act.

�The ratio of the Full Bench decision to which we shall presently advert and which has been relied upon by the Prescribed Authority & the learned District Judge, is found to lead to situations which could never have been contemplated by the legislature. For instance, if Naim or Nadeem found inconvenient to live with the other members of the family when Manzoor died and he moved into another house with a view to living separately and the fact of such a move on his part brought about cessation of tenancy and the house Manzoor lived in was deemed to have become vacant, the widow, the other sons and daughter of Manzoor would immediately find themselves in a very helpless condition. Or for instance, if one of the sons got an employment in a factory located within the same city and for convenience moved into a factory quarter for residence, the same result would ensue to the miserable plight of the other members. Or consider the case of a divorced daughter of the tenant living with him, when she builds or acquires a separate premises with funds provided by her exhusband. No sooner she moves into her house, the father''s tenancy comes to an end. Or take the case of an expanding family. Several sons come of age are married and many children are born to them. The accommodation becomes insufficient and1 one or two of the sons move into a separate house to ease the situation. If in such premises, father''s tenancy.....reside is deemed to have become vacant, the family would be visited with hardship knowing no bounds. Take the unhappy and miserable lot of a couple whose infirm son, suffering from a serious malady highly contagious, is shifted to an independent residence for exclusion. Would that too lead to termination of tenancy qua the main residential premises?�

In para 10, further observed that in enacting an Act intended to stabilise letting, rent and eviction by regulation, the legislature could not have evinced such intention. It is true that the legislative purpose behind Section 12 appears to be in keeping with the scheme of the Act, making available as much accommodation as possible for allotment to needy persons. That being the purpose, the legislature could not have intended to render persons rehabilitated in tenanted premises homeless.

Thus considered, as mentioned above, this Explanation to 4th proviso creates and provides for exception to 4th proviso itself as proviso itself indicates and so no objection to release application, where explanation is applicable, is entertainable on the ground of comparative hardship. But so far as question of bona fide and pressing need of landlord is concerned the landlord has to establish it and in such circumstances it is open to tenant or to his other heirs to show that landlord''s need is not pressing and the landlord has got sufficient accommodation to suffice his requirements. I find support for my above view from the decision of this court in Sharda Prasad v. Smt. Sampatl Devi (1983 (1) ARC 378).

In cases to which above Explanation to 4th proviso to Section 21 of the Act does not apply the Prescribed Authority has got to be satisfied of �landlord''s bona fide need� as of the facts that tilt the balance of convenience in favour of landlord i.e. that greater hardship is likely to be caused to landlord by rejection of release application and it will be open to raise objection against release application on both the counts.

In the orders impugned in the present case the Prescribed Authority and Appellate Authority have not considered the two aspects of the matter referred to above, namely, if Pramod Kumar and Vinod Kumar Pandey, sons of the petitioner were at the time of acquiring their separate house were normally residing with the tenant petitioner and whether both were wholly dependent on the tenant petitioner, before placing reliance on the Explanation to proviso No. 4 to Section 21 of the Act & as such committed jurisdictional error and error of law as consideration and determination thereof has been necessary for the decision of the case.

Thus considered, I am of the view that approach of oppositeparties i.e. Prescribed Authority and the Appellate Authority to the case has been in entirety subject to error of law apparent on record and nonjudicious and illegal and so the orders impugned dated 1091991 passed by the Prescribed Authority, Lucknow in R. A. Case 46/91 and order dated November 28, 1991 passed by Appellate Authority deserve to be quashed

The writ petition is, as such, allowed, the order dated 1091991 and dated 281191, passed by the Prescribed Authority, Lucknow and the XIth Addl. District Judge, Lucknow, contained in Annexure No. I & IV to the writ petition are quashed with the direction to oppositeparty No. 2 (Vth Addl. Civil Judge, Lucknow) i.e. Prescribed Authority concerned to decide and dispose off release application according to law and keeping in mind observations made above after giving due and proper opportunity to the parties.

It is expected that all the parties will cooperate in expeditious disposal of the case i.e. release application. No order as to cost.