Rameshwari Mendola & Another vs Durga Prasad & Others

Sharad Kumar Sharma, J

The petitioner before this Court is a landlord of the tenement, which has been more particularly described in the body of the release application filed by the petitioner on 28.02.2014, which was preferred by the predecessor of the petitioners by invoking the proceedings as contained under Section 21 (1) (a) by filing the same before the prescribed authority on 28.02.2014, whereby, as per the description given in the release application the property is shown to have been situated at Patel Marg/ Red Cross Road, Kotdwar, Garhwal, which is shown to be bounded by the chauhaddi as given in paragraph 1 of the release application, which is as follows:

East - Road

West - Shop M/s Sidh Jwellers

North - Property of Abhishek Magistrate

South - Property of Sudhir Aggarwal Associates

The landlord/applicant had specifically come up with the case that he is a retired army personnel and is unemployed when he filed the application for release and he wants himself to be profitably engaged by running a business by opening a grocery shop, which was to be operated by the landlord/applicant along with his daughter-in-law. The need as expressed therein was with an intention to augment the income of the family by getting the release of the shop, which was admittedly given to the respondent under his tenancy and the shop was bearing a rent of Rs. 400/- per month. Thus, between the landlord/applicant/petitioner and the respondent/opposite party, there existed relationship of landlord and tenant, which is a fact, which is admitted between the parties.

In response to the release application a written statement was filed by the respondent/tenant, wherein, he has admitted the existence of relationship of landlord and tenant, but, however, while giving response to the pleading raised by the applicant landlord and the predecessors of the present petitioners to the effect that he is an ex-army personnel, the said fact stands admitted by the respondent/tenant in the pleadings as raised by him in paragraph 1, 21, 24 & 25 of the written statement.

The case of the landlord was that the principal tenancy, which was created in relation to the shop in dispute, which has been described in paragraph 1 of the release application, in fact, it was a one composite unit of shop of which the tenancy was created in favour of the respondent Karori Mal, and in order to substantiate the fact that it was a composite shop, which was let out to the predecessor of respondent tenants, he, i.e. the landlord, has placed on record the assessment of the Nagar Palika for the years 2013-14 to 2017-18 in order to show that in records where the shop has been shown to have bearing Municipal No. 78 and it was shown as to be a one composite shop, which was under tenancy of Karori Mal. It is also specific case of the landlord as pleaded in the statement recorded before the Court below, as well as, in the statement, which has been recorded by way of evidence that the said shop was illegally partitioned by the respondent/tenant, without taking any prior written consent and, hence, the tenement, which was made in two parts by putting a partitioned wall was giving it a shape of being two different units, which the tenant contends that it was initially let out to him in the said form at that time itself, having two independent segments of the same shop when tenancy was created, but the said fact has been specifically denied by the landlord in the proceedings before the Court below that since as per the averments in the release application, since a one composite shop was let out, which was being substantiated by the evidence being brought by the landlord on record alongwith an affidavit, which was submitted by the PW 1 Smt. Rameshwari Devi, the wife of Mr. Late Bihari Lal, that the theory developed by the tenant pertaining to the partition of the shop in order to derive a benefit of partial release, was untenable for the reason that any partition, which was taken or made by the tenant without a prior written consent of the landlord will not make the unit itself to be a two different segments of the shop, which was initially let out to the tenant, in order to split over the tenancy for which the release was sought by filing the release application on 28.02.2014 by the predecessor of the landlord/petitioners.

The landlord/petitioner had specifically come up with the case, particularly by raising a pleading in the release application itself to the effect particularly contained in paragraph-10 of the release application that after filing of the release application on 28.02.2014 the tenant/respondent has not made any effort to look for an alternative accommodation and, hence, in that view of the matter it would be deemed that in view of the ratio as laid down by the Hon'ble Apex Court in 2008(9) SCC 1 'Shamshad Ahmed vs. Tilak Raj' that when on filing of the release application for release of the tenement, if the tenant fails to look for an alternative accommodation, it will be deemed that the need of the applicant/landlord as projected in the release application happens to be bonafide and hard pressing and thus a presumption goes in favour of the landlord that his need was genuine hard pressing and bonafide and tenant would not be affected adversely in an event of release of the tenement. Paragraph of the judgment is quoted hereunder:

"38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of Appeal or a Court of Error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.

For the foregoing reasons, the appeal is allowed. The order passed by the High Court is set aside and the order of eviction recorded by the appellant authority and the Additional District Judge III on 25th May, 2001 is restored."

On exchange of the pleadings, the learned prescribed authority after considering the rival contentions pertaining to the need as expressed by the landlord from the view point that the tenant has got other massive constructions under his ownership within the same municipality where he can shift himself and do the business of his choice and he cannot force upon the landlord to continue with the tenancy, which otherwise stands determined in pursuance to the notices and filing of an application for release where the request has been made to the tenant to vacate the premises as the same was expressed in the release application to be required by the landlord, who was an ex-army man for accommodating himself and his daughter-in-law.

Before the prescribed authority, the issue of the two shops having being given in tenancy by the landlord to the tenant, was raised from the view point that there cannot be a one release application, for release of two tenements, as claimed by respondent/tenant, which was specifically denied by the landlord in his pleading to the effect that tenancy was created and continues of only one shop, no legally permissible partition wall could have been raised by the tenant to raise the plea of tenancy of two shops having being created. The prescribed authority came to the conclusion that it was one shop only because the "chauhaddi" described by the landlord in release corresponds with chauhaddi given in reply by the tenant in objection to the release application.

Besides this PW1 has specifically pleaded that tenant is conducting the business of supplying the material and no actual business is being conducted by him from the tenement, because he is engaged in supplying goods by trucks, and for the purposes of storing goods to be supplied as he has other godowns under his ownership. Landlord PW1 has also placed on record by way of evidence the Nagar Palika assessments to show the extent of tenancy, which still subsists in favour of tenant at other places. The prescribed authority took into consideration the fact that in accordance to the pleadings raised in paragraph 27 of the written statement and proved by paper No. 12ga, that is 75 years of age and is suffering from a paralytic attack, which has effected his mobility. Thus, the Court concluded that in view of the pleadings raised by the tenant himself it shows that in fact he was not conducting any effective business from the shop in dispute.

Prescribed authority also considered the plea taken and not proved by the tenant, that the landlord has other property under his ownership where other tenants are conducting their businesses. The prescribed authority concluded that the very fact as to whether the tenant was actually doing business from the tenement is of no relevance, what is required to be considered is the element of bonafide need of the landlord.

The prescribed authority vide its judgment dated 20.11.2015 had allowed the release application. Consequently, granting two months' time to the respondent/tenant to vacate the shop in dispute as described in the release application.

Being aggrieved against the judgment dated 20.01.2015, the respondent/tenant had preferred an appeal under Section 22 of the Act of 13 of 1972 being R.C.A. No. 41 of 2005, wherein, under the pretext that the pleading, which he has raised in the written statement pertaining to shop being given a shape of two shops, which happens to be as per the municipal record a one composite unit, which was principally let out and projected so in the assessment order, under that pretext of partition of disputed shop a prayer was made with regards to a partial release of the tenement in question and consequently, the learned Appellate Court by the impugned judgment under challenge in the present writ petition as rendered in Rent Control Appeal No. 41 of 2015 'Durga Prasad vs. Smt. Rameshwari Mendola & Others' had proceeded to partially allow the release, and partially the appeal preferred by the respondent/tenant was allowed in relation to half of the tenement, then which was sought to be released by the landlord by filing the application for release under Section 21(1) (a) of Act No. 13 of 1972 by partially releasing the shop by the impugned judgment dated 22.11.2016.

It is this partial denial of the release by the appellate authority, which otherwise stood released in favour of the landlord by the orders of the prescribed authority and modification of the judgment made by the appellate authority vide its judgment dated 22.11.2016, has been put to challenge by the landlord on the ground that looking to the pleadings, which has been raised before the Court below and in particular the defense, which was taken by the tenant in the objection to the release application that once the shop itself when it was let out and proved by evidence on record, as well the pleadings of tenant himself, that it was one composite unit, which was let out, there was no possibility of its partial release merely on the pretext that the tenant has raised a certain plea pertaining to derive the benefit, which he has sought to derive by way of partition of the shop, which admittedly as per the pleadings, which is brought on record at the behest of landlord, which shows that in fact the landlord has never consented or granted any written permission to the tenant to partition the shop in question nor any written permission has been placed on record by tenant of permitting to partition the tenement shop and, in that eventuality, even if the shop was given a shape of two different units by the act of the tenant he cannot derive the benefit of his wrongful act contrary to the provisions of Act No. 13 of 1972, particularly when it is admittedly proved by evidence on record that it was a tenancy, which was created in favour of the tenant of one composite shop, which was let out by the petitioner/landlord.

What is important herein is that if the release application is taken into consideration particularly in relation to the description of the property as given in paragraph 1 of the release application with regards to the propriety of the need as expressed by the landlord to open a grocery shop, since he wanted himself to be profitably engaged after having retired from the army forces was a fact which was not denied by the tenant pertaining to the bonafide requirement of the landlord and with regards to the extent of tenancy, because even otherwise also under law it is an exclusive prerogative of the landlord to determine his gravity and extent of his requirement in relation to a tenement, which is being sought to be released and the tenant cannot under any circumstances or preposition of law place himself in an advisory capacity to advise the landlord as to which segment of the property he should get it released and which not in order to engage himself in the nature of business he proposes, which he wanted to engage alongwith his daughter-in-law. As under law its exclusive choice of the landlord to determine his extent of his need as to settle himself or his family member in the business.

The controversy as agitated in relation to the release of shop as one composite unit, which was substantiated by the landlord is a fact, as when the tenant has filed his written statement, hence he has not specifically denied or raised any plea to the effect that the tenement as described in the release application was not a one composite unit rather the boundary given by the landlord was admitted in his reply to release, because while responding to the pleading raised to paragraph 1 a very vague answer was extended by the tenant and that too not being supported with a theory of the partition of the shop by evidence on which the reliance has been placed by the tenant, and he has simply submitted that the description of the property as given in the release application is not accepted, but there is no logical pleading in paragraph 1 of the reply to release application that a tenancy was created in relation to two units of the shop, which was given by the landlord to him under the tenancy. Though in paragraph 19 of the written statement he has endeavoured to submit that the shop in question, which was partitioned was carrying a rent of Rs. 750 each for both the segments and it is under that pretext the plea at an appellate stage was taken by the tenant for release of the partial accommodation because as per his contention and the presumption, which he has drawn in the appeal before the appellate court under Section 22 was to the effect that even the partial release of tenement in question would satisfy the need of the landlord, its his own determination of tenant with regards to the need of the landlord and his extent of need, which is a preposition not perceived under law.

As far as the plea, which is being drawn from the effect of partition of the shop in question will not be sustainable for the reason that the evidence brought on record by landlord pertaining to the assessment made by the Nagar Palika with regards to the shop bearing No. 78, which has been let out to the tenant, coupled with the fact that since after filing of the release application since the tenant has not ventured out to look out for an alternative accommodation and there is no evidence brought by him in that regard before the court below, a presumption would be drawn that in an event of release of the tenement he would not suffer at all. Apart from it, the provisions contained under Section 21(1) (a) itself, it provides with a special protection to the ex-army personnels, who after the retirement wants to accommodate himself in a building as defined under the Act of 13 of 1972, which will be inclusive of both the residential as well as commercial building. In that eventuality, where an ex-army personnel moves an application for release, that is bound to be considered an no defense of any nature whatsoever could have been untenable at the behest of the tenant/respondent because he cannot derive an immunity from release of the tenement under Section 21(1) (a).

This writ petition challenging the partial denial of the release application by the impugned appellate order, was filed by the petitioner/landlord on 14.12.2006. In response to the notices by this Court on 16.12.2016 the respondent had filed their vakalatnama, for example, the respondent no. 1 had put in appearance through Bhagwat Mehra by filing his authority on 02.02.2017 and respondent nos. 2 & 3 had put in appearance through Mr. D.C.S. Rawat on 05.01.2017. As against the impugned order dated 22.11.2016 of partially sustaining the release made by the prescribed authority, the respondents too herein had filed a writ petition being Writ Petition No. 90 of 2017 as against the present petitioners, the same was dismissed by this Court as withdrawn vide its order dated 12.01.2017 and, consequently, a direction was issued by the Coordinate Bench of this Court directing the respondent to handover a peaceful possession of the part of the accommodation, which was released by the appellate order in question. Meaning thereby, the judicial propriety of release was upheld by this Court. Now the question, which is confined consideration is with regards to the total released.

The effect of withdrawal of the writ petition as withdrawn would be that as far as the respondents are concerned they had accepted the propriety of the partial release in favour of the landlord, as well as the propriety of the partial denial of the release. Because the writ petition filed by the respondent was never adjudicate upon by the Coordinate Bench of this Court on merits of the matter in order to substantiate the partial release and partial denial of release made by the appellate court in favour of the landlord and partially against him.

After having considered the rival contentions and particularly the evidence, which was placed on record by the landlord along with the writ petition, as well as before the court below, this Court is not inclined to accept the theory and plea of respondent tenant, which the tenant has sought to build up in the absence of there being any evidence to the contrary, regarding tenancy being of splittede accommodation, rather to the contrary the tenancy was proved to have been created in relation to the composite unit by the landlord, which was apparently established by the Nagar Palika assessment, which itself was a public uncontroverted document, which has projected that the shop in question was a one composite unit.

Apart from it, if the theory of the tenant is accepted pertaining to the partition of the disputed shop there is nothing on record to show by way of an evidence at the behest of the tenant, which was adduced by him before the Court below that the partition, which was carried by him was as per law and was after taking a prior written consent from the petitioner/landlord, and also because of the fact that there is nothing on record filed by the tenant/respondent to show that they had made any attempt to look for an alternative accommodation after initiation of the proceedings of the release on 28.02.2014, in such an eventuality, it would be deemed that the need as expressed by the landlord in the release application was bonafide and hard pressing as compared to that of a tenant in the absence of there being an effort made by the tenant to look for an alternative accommodation.

This contention of the landlord petitioner further finds substantiated because of the fact that even in the present writ petition too when the respondent have put in appearance till the date they have not filed their counter affidavit or they have denied the assertions made with regards to the pleadings raised by landlord while giving challenge to the impugned order as given bye the landlord with regards to the partial rejection of release and the partial release made by the appellate court since there was no denial made pertaining to the pleading made by landlord and the propriety of the appellate court's order, which has been questioned by the landlord, it would be deemed the grounds which has been taken by the landlord in the writ petition stands unrebutted and it would be taken as to be a true on the face of it in view of the following judgments of the Hon'ble Apex Court, which has held that when a respondent to the proceedings before a Court does not deny the pleadings raised by the plaintiff/petitioner before a Court of law it would be deemed that the propriety of the pleadings stands unrebutted and it will be taken on the face of it to be true. In paragraph 11 of the judgment Smt. Naseem Bano vs. State of U.P. and Others' as reported in AIR 1993 (2) SC 2592 it has held that:

"11. The aforesaid reply would show that on behalf of respondents Nos. 1 to 4, it was not disputed that 40% posts which have to be filled up by promotion had not been filled up and the denial of promotion to the appellant was justified on the sole ground that she was not qualified to be promoted to L.T. grade. This shows that in the pleadings before the High Court, there was no contents on the question that the post of L.T. grade which was sanctioned on August 29,1977 was required to be filled up by promotion for the reason that 40% posts had not been so filled. Even though there was no contest on this question the High Court has gone into it and has held that the appellant has failed to establish her case that at the time of the appointment of respondent No. 6 by direct recruitment 40% of the total number of posts in the college were not filled up by promotion as prescribed by Regulation 5(2)(a) of the Regulations. Since no dispute was raised on behalf of respondents Nos. 1 to 4 in their reply to the averments made by the appellant in the writ petition that 40% of the total number of posts had not been filled by promotion inasmuch as the said averments had not been controverter the High Court should have proceeded on the basis that the said averments had been admitted by respondents."

In an another judgment of 'Express Newspapers Pvt. Ltd. and Others vs. Union of India and Others' as reported in AIR 1986 SC 872 it has held that:

"115. It is somewhat strange that although definite allegation of mala fide on the part of the respondents particularly the Government for the day at the Centre were made with sufficient particulars and though the respondents had ample time to file their affidavits in reply, none of the respondents except respondent no.5,, the Lt. Governor of Delhi and respondent no.5,, Land Development Officer have chosen to deny the allegations.

The counter-affidavit of respondent no.2 purporting to be on behalf of all the respondents is that the allegations made by the petitioners in paragraphs 11, 12 and 13 are not 'relevant' to the matter in issue. In C.I. Rowjee & Ors. v. A.P. State Road Transport Corporation, [1964] 4 S.C.R. 330, the Court in a matter arising out of the Motor Vehicles Act, 1939 where certain allegations against the Minister went uncontroverted, had occasion to administer a word of caution. Where mala fide are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability. That precisely is the position in the present case, m the absence of any counter- affidavit by any of the respondents. One should have thought that the Minister for Works & Housing should have sworn an affidavit accepting or denying the allegations made by the petitioners. At our instance, M.K. Mukherjee, Secretary, Ministry of Works & Housing has filed a supplementary affidavit. He avers that the impugned notice dated March 10, 1980 of re-entry upon forfeiture of lease issued by the Engineer Officer, Land & Development Office was on the basis of press reports i.e. reports of the press conference held by the It. Governor. Again, there is no attempt on the part of the Union of India, Ministry of Works & Housing to deny the allegations of mala fides on the part of the Government and its functionaries in issuing the impugned orders. On the contrary, he avers that respondent no.1 'adopts the counter- affidavit filed by respondent no.2'. It is not for the parties to say what is relevant or not. The matter is one for the Court to decide. There is nothing before us from which we can say that the allegations in paragraphs 11, 12 and 13 of the petition made by the petitioners are not well- founded. Mala fides on the part of the Government in power or its functionaries would be sufficient to invalidate the impugned notices. Fraud on power vitiates the impugned orders if they were not exercised bona tide for the purpose for which the power was conferred."

Paragraph 4 of another judgment of 'Bir Singh Chauhan vs. State of Haryana and Another' as reported in 1997 (6) SCC 282 in this regard is also quoted hereunder:

"4. We wanted to examine the record to ascertain whether there is any substantial case against the appellant. The respondents have neither filed counter nor produced the record. Under these circumstances, we are constrained to accept the case of the appellant that he is entitled to be considered for promotion under the Rules. We direct the Government to consider his case for promotion on the basis of his service record within four months from the receipt of this order. While doing so, the Government will exclude the material relating to his inspection report."

Paragraph 6 of the judgment 'M/s Cotton Spinning & Weaving Mills Co. Ltd. vs. The Collector, Kanpur and Others' as reported in 1999 (82) FLR 709 is quoted hereunder for reference:

"6. In the absence of counter affidavit, the Court is left with not in dispute that the petitioner is a sick Company and relevant proceeding qua it under Section 16 of the Act are going on. Sri Vinay Malaviya, learned Standing Counsel representing the respondents, very fairly, concedes that the petitioner being a sick Company as contemplated by the Act, the protection of Section 22 of the Act would be available to it and in view of the said protection, eth impugned recovery cannot be effected against the petitioner."

In such an eventuality, this Court is not in agreement with the reasoning, which has been assigned by the learned Appellate Court while partially releasing the accommodation and partially denying it by modifying the order of the prescribed authority by the impugned order under challenge in the writ petition, i.e. 22.11.2016. In that view of the matter and for the reasons already assigned above, the writ petition succeeds and is allowed.

The tenant/respondent is directed to handover the vacated and peaceful possession of the part of the shop in question of which release was denied by the appellate order to the petitioner/landlord within a period of thirty days from the date of receipt of the certified copy of this order, lest failing which it would be open for the landlord to get the judgment executed by issuance of Form C & D by prescribed authority as per the provisions of Act of 1972.