Mathura Prasad vs Ist A.D.J. Banda and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

This is landlord''s writ petition arising out of eviction/ release proceedings initiated by him against tenants respondent Nos. 3 and 4 Ramesh Chandra and Shikhar Chandra on the ground of bona fide need u/s 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 registered as R.C. Case Nos. 1 and 2 of 1979. Original landlord has died and been substituted by his legal representatives. Release applications were rejected by Prescribed Authority/ Munsif Banda through judgments and orders dated 26.03.1980. Against the said judgments and orders original landlord petitioner filed two appeals being Civil appeal (Rent Control) Nos. 69 and 72 of 1980. Respondent No. 3 Ram Chandra Jain is son of respondent No. 4 Shikhar Chandra Jain. Both of them are tenants of adjoining portions. Landlord had filed two release applications, one was registered as R.C. case No. 1 of 1979. It was directed against father Shikhar Chandra Jain. The other one (R.C. Case No. 2 of 1979) was directed against son tenant. Both applications were rejected by the Prescribed Authority on 26.03.1980 by separate but similar judgments. The appeals were dismissed by Ist Addl. Distt. and Session Judge, Banda on 16.08.1982, hence this writ petition.

Map of the property in dispute was annexed as Annexure 1 to the writ petition. However, that did not contain the dimensions, hence learned Counsel for the parties were directed to file another map. Learned Counsel for the landlord through supplementary affidavit dated 07.07.2008 filed the map. On 13.08.2008 learned Counsel for the tenant stated that he was not disputing the correctness of the said map. Five rooms are in possession of son Ramesh Chandra and one room towards west, admeasuring 8.5 feet x 14.5 feet is in possession of Shikhar Chandra, the father. The area of the five rooms in possession of tenant Ramesh Chandra is as follows:

13.25 feet x 9.5 feet

13.25 feet x 9.5 feet

14 feet x 16 feet

13 feet x 10.5 feet

7.25 feet x 4 feet (store)

The rent of one room in tenancy occupation of Shikhar Chandra Jain is Rs. 20/- per month and the rent of other five rooms in tenancy occupation of Ram Chandra is Rs. 95/- per month. The property in dispute is situate on the ground floor. On the first floor original landlord Mathura Prasad was residing with his son who has now been substituted at his place i.e. Gaya Prasad. The need set up in the release application was for establishing Gaya Prasad son of original landlord in business. Courts below found that Mathura Prasad was in tenancy occupation of a shop from where he was carrying on business of selling kerosine oil. The tenant contended that Gaya Prasad carried on business of salt, Dalda and grain etc. It was also contended that Gaya Prasad had also taken two godowns on rent. The tenants were using the accommodation in dispute for commercial purposes (It was also let out for the same purpose). Shikhar Chandra Jain carries on the business of Dalda and sale and purchase of grains. Ramesh Chandra carries on the business of selling Bar Dana (packing material). The tenants have got two more shops. However, the courts below held that it was not proved as to whether the tenants were owners of the said shops or the said shops were in their tenancy occupation. Tenants contended that two shops in Banda buildings were in tenancy occupation of another son of Shikhar.

The courts below held that Gaya Prasad was doing joint business with his father and also had two godowns in his tenancy occupation.

Supreme Court in Smt. G. Kaushalya Devi Vs. Ghanshyamdas, and Dhannalal Vs. Kalawatibai and Others, Dhannalal v. Kalawatibai has held that a tenanted shop cannot be taken into consideration while deciding the need of the landlord for his own shop. Accordingly shop in tenancy occupation of the landlord was not of any importance.

Through second supplementary affidavit filed by tenant respondent No. 3 on 07.07.2008 it has been stated that landlord through sale deed dated 23.05.1983 purchased double storey building which contains two shops also. In reply thereto second supplementary rejoinder affidavit has been filed on 06.08.2008 by the landlord wherein it has been stated that the house which was purchased in 1983 is in occupation of ex wife of Gaya Prasad and in 2003 divorce decree in between him and his wife has been passed by court. It has also been stated that in the premises purchased in 1983 ex wife of Gaya Prasad petitioner is carrying on business.

As adverse decree was obtained on the basis of compromise in 2003 i.e. five years before hence it can not be said that it was obtained only for the purposes of this writ petition. Until August 2008, the said fact was not even brought on record.

In any case if wife of landlord is carrying on business from a shop it can not be said that due to availability of the said shop need stand completely satisfied.

In para 4 of second supplementary counter affidavit tenant no where asserted that from the two shops on the ground floor of the house purchased in 1983 by the landlord, landlord or his son was doing any business.

In my opinion, therefore, need was fully established.

As far as comparative hardship is concerned tenants did not make any effort to search alternative accommodation. Release applications were filed 29 years before.

In my opinion, looking to the extent of accommodation in dispute it appears to be a fit case for part release. Accordingly release application against Shikhar Chandra Jain in respect of one room towards west is dismissed and in respect of shops in tenancy occupation of Ramesh Chandra is allowed. Both the impugned orders are modified accordingly. Writ petition is disposed of.

Tenant-Ramesh Chandra is granted six months time to vacate provided that:

Within six weeks from today Ramesh Chandra tenant files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-respondent.

For this period of six months, which has been granted to the tenant to vacate, he is required to pay Rs. 9,000/-(at the rate of Rs. 1500/- per month) as rent/damages for use and occupation. This amount shall also be deposited within six weeks before the Prescribed Authority and shall immediately be paid to the landlord-respondent.

In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs. 9,000/- are not deposited within six weeks then tenant-petitioner shall be liable to pay damages at the rate of Rs. 2500/- per month since after one month till the date of actual vacation.

Similarly, if after filing the aforesaid undertaking and depositing Rs. 9,000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 1500/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application u/s 23 of the Act.

I have held in Khursheeda v. A.D.J 2004(2) ARC 64 and H.M. Kichlu v. A.D.J 2004(2) ARC 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.

In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of Malpe Vishwanath Acharya and Others Vs. State of Maharashtra and Another, where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Another, of which are quoted below:

It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/ or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent.

In Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr. (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 01.09.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31.03.1998.

Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (Section 9-A) or government is tenant (section 21(8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court reported in Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, of which is quoted below:

It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.

Thereafter in Para-8 of the aforesaid authority of Khursheeda, I held as under:

Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bonafide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, . has laid down that while granting relief to a party the writ court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the un-reasonable arbitrary advantage conferred upon him by the said Rent Control Act. The writ court therefore while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the un-reasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act.

Thereafter in H. M. Kitchlu v. A.D.J. 2004 (2) A.R.C. 652, I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so writ court approves the protection of Rent Control Act granted to the tenant by the courts below.

The rent of the shop in tenancy accommodation of Shikhar Chandra father is enhanced to Rs. 500/- per months w.e.f. November 2008.