Rajan Sharma and Others vs Dr. Rameshwar Prasad

Poonam Srivastav, J.—Heard Sri Arun Kumar, learned Counsel for the petitioners/tenant and Sri Vipin Sinha advocate for the contesting respondent/landlord.

A release application was filed initially u/s 21(1)(a) and (b) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) in the year 1979 for release of residential accommodation in possession of four different tenants Smt. Kanta Sharma, Madan Mohan Sharma (one set of tenant), Ram Deen (second set of tenant), Smt. Ram Rakhi (third set of tenant) and Smt. Dropadi, Ladla (fourth set of tenant). Four tenants filed their objections primarily regarding maintainability of single application for eviction of a number of individual tenants in occupation of independent accommodation. Besides, the bona fide need of the landlord and also the ground of accommodation being a dilapidated condition was disputed.

The Prescribed Authority did not agree with the contentions of the landlord raised in the release application and came to a conclusion that the building was neither dilapidated and required demolition and reconstruction nor the need of the landlord was bona fide. The release application was rejected vide judgment and order dated 14.8.1980. Appeal No. 143 of 1979 was preferred by the landlord and during pendency of the appeal, an amendment in the release application was moved changing the release application u/s 21(1)(a) and (b) of the Act to an application u/s 21(1A) of the Act. The additional ground that the landlord was a Government servant and after his retirement in the year 1979, he vacated the official accommodation and, therefore, the portions of the premises in possession of the individual landlord was required to be released in his favour. The appellate court while allowing the amendment application was of the view that this is a new ground and, therefore, the matter was remanded vide order dated 27.4.1989 with a direction to the Prescribed Authority to frame issue on the newly added point and decide the matter afresh.

During continuation of the proceedings before the Prescribed Authority in Case No. 40 of 1979, the landlord gave up his case u/s 21(1)(a) and (b) of the Act but pressed the application only on the ground of Section 21(1A) of the Act. Once again the Prescribed Authority vide judgment and order dated 18.4.1995 declined to grant the benefit of amended provisions of the Act and dismissed the release application. Rent Control Appeal No. 41 of 1991 was preferred. The additional evidence in appeal was brought on record and the appeal has been allowed vide judgment and order dated 9.5.2008 by the Additional District Judge, Court No. 3, Bareilly and the petitioners have been directed to vacate rented accommodation and handover possession to the landlord. The said judgment is under challenge in the instant writ petition.

Counter and rejoinder-affidavits have been exchanged and as agreed between the respective counsels for the parties, the case is being decided finally at the stage of admission itself.

Learned Counsel for the petitioners has challenged the judgment on a number of grounds. The submission is that initially the application was filed u/s 21(1)(a) and (b) but after 10 years the landlord has taken a complete somersault and changed the nature of the release application to one u/s 21(1A) of the Act. Sri Arun Kumar states that the amendment should not have been allowed and in the event, the landlord was facing any problem on account of his retirement, he should have moved this application in the year 1979 itself when the release application was filed for the first time. This submission is on the basis that the case of the landlord is that he retired in the year 1979 and the provisions of Section 21(1A) is only to meet out the eventuality of his vacating an official residence on cessation of his employment immediately after his superannuation or subsequent to his retirement but not after lapse of 10 years. This amendment after a lapse of considerable time is only to circumvent the judgment of the Prescribed Authority. The next challenge is regarding additional evidence accepted at the appellate stage. A number of decisions have been relied upon which shall be discussed later.

Sri Vipin Sinha has countered each and every argument of the counsel for the petitioners and states that no time limit is prescribed u/s 21(1A) of the Act. Besides, this ground was already taken at the initial stage when the release application was filed, it was specifically mentioned that the landlord has retired and he had to vacate his official accommodation and he requires the residential accommodation in occupation of the various tenants. The accommodations were different rooms of the same house, therefore a composite release application.

I have given careful consideration to the arguments advanced by the respective counsels as well as gone through the impugned judgment. It is apparent that the petitioner Nos. 1 and 2 Raj an Sharma and Smt. Nimmo Sharma have not contested the release application even at the stage of appeal and on perusal of the judgment of the appellate court, this fact stands substantiated that Sri L.Sharma, the original tenant died and his son and daughter are residing in separate houses in Bareilly. The tenant Ramrati opposite party No. 4, Dropadi opposite party No. 5 have also died and Ladla son of Dropadi was arrayed as opposite party No. 6. The release application has thereafter been contested by Madan Mohan Sharma and Ram Deen who is son-in-law of Dropadi. These objectors have filed their affidavits at the appellate stage admitting that the respondent is landlord and he was employed in the State Government service as a Doctor. He retired in January, 1979 from the post of Joint Director, Medical and Health Services from Faizabad. This fact has also not been disputed that during tenure of his employment he was in occupation of his official residence. It is also a fact recorded by the lower appellate court that there is no accommodation available and at the disposal of the landlord. Previously he was residing with his mother temporarily since he had no other place to go and at present he is residing in a trust property after taking permission and he has no permanent accommodation to reside. His son and daughters have grown up and they are living with their families. The daughter is posted as Administrator in G.P.M. Inter College, Bareilly and also residing in official accommodation with his family and, therefore, no accommodation is available. The tenant suggested that there is one thousand square land at the disposal of the landlord where his son has started tyre business and he could very well construct a house for himself. The fact that he is residing in trust premises has also not been disputed.

Learned Counsel for the petitioners has placed reliance on a number of decisions. The first decision is Kalyan Rai Saxena v. IInd Additional District Judge, Bulandshahr and Ors. 1982 ARC 363 , paragraphs 13, 14, 15 and 26. The gist of this decision is while discussing the scope of Section 21(1A) of the Act which is an integral part of Section 21 and engrafts a deviation from general rule. The landlord is neither required to establish his bona fide need nor comparative hardship. This provision was enacted for providing an immediate shelter to a landlord who is left without any accommodation consequent upon his cessation of his employment had to vacate a public building. However, the conclusion of the Division Bench is that it is implicit in Section 21(1A) that the landlord can invoke it only if he does not have in his possession an accommodation which he can occupy in his own right after vacating the public building allotted to him as one of the conditions of his employment. It was further ruled that temporary occupation by a landlord of some accommodation which he cannot use as of right, cannot exclude the applicant to avail the benefit of Section 21(1A) of the Act. The second decision relied upon by the counsel is Busching Schmitz Private Limited Vs. P.T. Menghani and Another, Reliance has been placed on paragraphs 20 and 21. Paragraph 21 of the said judgment is quoted below:

There remains the conundrum raised by Shri Nariman. Supposing the landlord, after exploiting the easy process of Section 14A, re-lets the premises for a higher rent, the social goal boomerangs because the tenant is ejected and the landlord does not occupy, as he would have been bound to do, if he had sought eviction for bona fide occupation u/s 14(1)(e). Section 19 obligates the landlord in this behalf. In literal terms, that section does not apply to eviction obtained u/s 14A. But the scheme of that section definitely contemplates a specific representation by the petitioner-landlord to the Controller that because he has been ordered to vacate the premises where he is residing, therefore he requires immediate possession for his occupation. The non obstante clause, the vesting of a right of immediate recovery, the creation of summary process u/s 25B and the package of connected provisions, all emphasize that the amendments have to be viewed as a whole, that the Court cannot be fooled and the statute mocked at. The law, as Mr. Bumble (in Oliver Twist) said, ''is a ass-a idiot''; but today the socio-economic project cannot be frustrated by legalistics. Underlying the whole legislative plan and provision is the fundamental anxiety to recover, for the officer''s occupation, his own premises. Once we grasp this cardinal point, the officer''s application for eviction u/s 14A can be entertained only on his averment that he, having been asked to vacate, must get into possession of his own. For instance, if he has a vacant, house of his own and, on getting an order to vacate, he moves into his vacant house, he cannot thereafter demand recovery u/s 14A. The cause of action is not only the Government order to vacate, but his consequential urgency to recover his own building. That is the ratione legis. To interpret otherwise is to vindicate Mr. Bumble. We hold that Shri Nariman''s apprehension is unfounded and Section 14A is largely a rider to Section 14 and the condition indicated in Section 19 must, mutatis mutandis, bind the landlord. Parliament cannot be assumed not to intend the obvious, or to intend the ludicrous. Literality is not right where absurdity is the result.

I do not think that how this case law helps the petitioners. In the Division Bench case cited above, the present case of the Apex Court was very well considered and followed.

The next citation pointed out by Sri Arun Kumar is Ram Das Gupta v. Naeem Ullah (since deceased and represented through his L.R''s.) and Ors. 1998 (2) ARC 83 and Madan Mohan Agarwal and Others Vs. Girish Kumar Chaturvedi and Another, In these cases in fact the landlord had sold one of the accommodation and preferred to establish in tenanted accommodation situated elsewhere and, therefore, this Court concluded with disproving need of landlord. Besides, in the said case landlord had also ancestral house at his disposal which is not a situation in the instant case. In Anr. case namely Colonel Brown Cambridge School, Dehradun v. Additional District Judge, Dehradun and Anr. 1988 (2) ARC 183 : 1988 (2) AWC 1106. In this case also the High Court was of the view that the landlord who had retired from Railway service and was required to vacate official accommodation, the question of consideration of extent of accommodation in possession of the landlord does not arise. Besides, the question of relevance of building for ''residential purpose'' has nothing to do with the building which is sought to be released. Besides, the Court was also of the view that unless factual foundation is laid down before the Court, he cannot allow to raise for the first time under Article 226 in the High Court. The insistence of the learned Counsel for the petitioners/tenant is firstly, delay in raising the ground of Section 21(1A) after lapse of 10 years.

Sri Vipin Sinha has also tried to demonstrate that the petitioners obtained an interim order in the writ petition by evading caveat filed by the landlord. However, counsel for the petitioners submitted that this caveat was not reported, therefore, I am not inclined to give my findings on these disputed questions.

I have perused the original release application and also subsequently the amendment carried out after it was allowed by the appellate court and the matter was remanded. The landlord has specifically raised the question regarding his retirement and vacating his official accommodation on 31.1.1979 and that his requirement and need after vacation of official residence. For a ready perusal paragraphs 7, 8 and 9 of the release application is quoted below:

That the applicant joined Government service as Medical Officer in the year 1949 and he remained outside at the places of his postings. Accommodation shown in the attached map was not needed by the applicant so it was kept on rent. The applicant retired from Government service as Joint Director, Medical & Health Services at Faizabad on 31st January, 1979.

That before his retirement, the applicant was living in Government building. At the time of his retirement he was posted at Faizabad as Joint Director, Medical & Health Service and was living in Government building which he had to vacate on retirement on 31st January, 1979 and thereafter he shifted to Bareilly with his family and is living in 2 rooms of the portion occupied by his mother. His family consists of himself, his wife and one son who is preparing for his Ph.D. and one daughter who has completed her studies after doing her M.Sc. Now after his retirement the applicant has to establish himself in his home town in the disputed premises so that he may spend his life in peace and comfort.

That the applicant will start his private medical practice at Bareilly and construct his own house, Nursing home and Clinic etc. on modern lines.

Therefore, merely non-mention of the provision of Section 21(1A) in the release application will not disentitle the landlord from raising this at a subsequent stage since the Prescribed Authority had completely overlooked this part of the release application while rejecting the release application moved on behalf of the landlord. So far amendment having been allowed and subsequently additional evidence was accepted at the appellate stage, I do not find any illegality since after allowing the amendment, the matter was remanded to the Prescribed Authority and both the parties were given opportunity to contest the matter. Lastly the additional evidence accepted by the appellate court is also not illegal since the evidence was also given by so called tenants who were contesting the appeal and they had filed their affidavits at the stage of appeal itself. It has come in the judgment of the appellate court that Madan Mohan Sharma son-in-law of Ram Deen and Dropadi, though they had no right to contest the release application filed their affidavits at the appellate stage and their arguments were also looked into and was discarded by the appellate court since the application was being considered only u/s 21(1A) of the Act. I decline to interfere in the disputed questions and findings of the court below which are based on assessment of evidence and are concluded by findings of fact.

It also goes without saying that since the year 1979 thirty years have lapsed and in a city like Bareilly the petitioners are occupying the accommodation which is rightfully required by the landlord and that too at a very meagre rent.

In view of the aforesaid observations and conclusions, I do not find any valid ground to interfere in the judgment of the appellate court. The writ petition lacks merit and is accordingly dismissed. So called tenants who are in occupation without any right are liable to vacate the accommodation in their possession within a period of 30 days from the date a certified copy of this judgment is produced before the trial court.